I am a century-splitting baby boomer, born in 1949 eleven days before it turned 1950. I am a quarter-century lawyer, admitted to the Florida Bar in 1974 twenty-four years ago. I am a first-generation TV addict and a Sixties college student. I was told to live for today and forget about tomorrow.
But I never could. I always thought about tomorrow. And I always planned for the worst. I knew I would die before 30 from the atomic bomb or Vietnam. I idolized Albert Einstein. So I majored in engineering and math at Georgia Tech because I thought if I followed people like Einstein I might be able to do something good.
I took Russian in college because I figured we would never drop the bomb and they might win the Cold War so I'd better know their language. But I still kept up my English, just in case.
This worked out well since my guardian angels thought I should be a lawyer and somehow they got me admitted to Stetson Law School without ever applying. And I did all right there for a first generation techie.
You can see that I not only grew up knowing the world was becoming more and more technological, but I embraced that mechanistic quality. I read Aldous Huxley and knew Brave New World would some day be true with all its excitement, but also its despair, unless others like me took it upon themselves to ride into the future with our eyes wide open and our souls ready to deal with the great problem of separating the good from the bad.
My conscience is filled with my past, with my idols, with my fears, with my hopes, with my dreams, with my mistakes, with my successes. My conscience is the good part of my soul. It's the part of me that says, "Hey, man, you did good; you're all right," or "Hey, man, you messed up; you're doing bad." It's also the part of me that says, "You better do this" and "You better do that."
Professionalism and the Canons of Ethics
Some would say that lawyers have no conscience. Lawyers might disagree and say their conscience is codified in the Canons of Ethics, now known as the Florida Rules of Professional Conduct (FRPC). The Preamble to those Rules supports this, but it goes further when it says:
Thus, the lawyer's conscience is embedded in a standard higher than the Rules of Professional Conduct--in the standard of professionalism.
All professionals, whether they are lawyers, doctors, plumbers or artists, know more than laymen about their fields of endeavor, and they develop and use their knowledge and skills primarily to benefit their clients, their profession and their community, not just to make money.
It is this quality of professionalism that is becoming more and more difficult to maintain in a mechanistic world where, in theory, a computer can be told all the applicable facts and rules and pump out a document or diagnosis that accomplishes the bottom line result desired by the client without having to consider the emotional, historical, political or human impacts of that result.
We have lost sight of FRPC Rule 4-2.1:
The Signs of Mechanistic Writing
Instead of exercising independent professional judgment, we seem to be mechanically following the example of others, good or bad. Legal writing itself becomes mechanistic.
Have you noticed how every bank's promissory note form has a clause waiving jury trial? The Bill of Rights guaranteed every citizen the right to trial by jury, yet the waiver of this constitutional right is so mechanically written into every lender's forms that no loan officer dare delete it.
Have you noticed the mechanical inclusion of other clauses in loan documents that waive the substantive and procedural rights of borrowers? Clauses such as environmental indemnification, joint and several liability, waiver of service of process?
Representing your client does not require oppressive writing. The Preamble to the Rules also says:
The Signs of Mechanistic Clients
But lawyers are not alone in their mechanistic tendencies. It seems like the whole world is doing it. For example, everyone seems to want a living will because everyone else has one. Not long ago Florida Bar headquarters received thousands of phone calls from citizens responding to a public offer for free Living Will forms. These forms are not esoteric, magic or secret. They appear word for word in the Florida Statutes. They state the signer's intent regarding the use of life prolonging procedures in case of a terminal condition. Did those thousands really want to make that life or death decision without personal advice from their doctor or lawyer?
This mechanistic tendency is not limited to health care. It appears in the financial world, as well. In the race to avoid probate, aging parents change the titles on their bank and brokerage accounts to be joint with their adult children, only to find out their life savings are subjected to claims of their children's creditors and spouses.
Four Steps to Professionalism in Writing Wills and Contracts
What can you do about professionalism in the 21st Century? Four things: Identify your client, listen to your client, think about what you heard, then write it down.
Identify your client. When you write a will, it is usually clear that the client is the person named in the will. But if you are writing wills for husband and wife, it would be a good idea to confirm the joint representation in an engagement letter. (See Russell and Bicks, Joint Representation of Spouses in Estate Planning: The Saga of Advisory Opinion 95-4, 72 Fla. B.J. 39 (Mar. 1998)).
When you write a contract, the person who sits in your office and tells you what to write might not be your client. Your client could be a corporation and the person in your office just an employee. Or your client could be a partnership or a government entity or some other type of organization. Rule 4-1.13(a) says:
This means that your duties as a lawyer are owed not just to the person sitting in your office, but also, and more importantly, to the organization that is your client. This means you have a professional duty to communicate with the organization, to keep those communications confidential and to represent that organization to the best of your ability.
The person sitting in your office might not understand this and might think you represent him or her. It is your professional duty to educate the person so that it is clear from the beginning who you represent and to whom your duties flow.
If it is a new client, the person in your office might want you to represent him or her individually rather than the organization. If this is not made clear in the first meeting, an unintentional representation of the organization may result.
For this reason, identifying your client includes sending a letter to your client and to the person with whom you met confirming your understanding of who is your client and what you are to do for that client. This is usually handled by an engagement letter.
2. Listen to your client. Before you can write anything for your client, you need to talk to your client. The client should tell you the 5 W's: who, what, when, where, why. These will become the outline of the contract:
The parties to the contract are the "who," the recitals are the "why," the subject matter is the "what," the term is the "when", and the applicable law is the "where."
It helps if the client writes this as an outline of contract points before you even meet with the client. This will focus the client's thoughts about the contract and give you a written memo to use in drafting.
When you meet, engage your client in "what if" scenarios. Map out results intended from various factual circumstances that may arise during contract performance.
Ask your client to show you contracts it has used in the past, and quiz the client on its various clauses. Were they included intentionally to meet the client's objectives, or were they mechanically repeated from prior contracts?
Listen to your client's words to determine what hopes and fears, what goals and risks, surround the transaction. Ask your client about them.
3. Think about it. Think about what your client said and the way it was said. Think about ways to help your client reach its goals and reduce its risks.
Think about what laws might apply to the contract in various factual situations. Research those laws.
Think about the historical, political and economic context within which the transaction will take place. Is this a transaction that must take place to avoid a bankruptcy? Is it critical to an industry? Is it critical to an individual? Will the inclusion of clauses helpful to this client have a damaging effect on third persons?
What does your conscience tell you about this transaction? Are you comfortable with your side of it and your role in it? Or are you doing it just for the money? Talk to your client about any aspects that you are not comfortable with.
4. Write it all down. After you have identified your client, listened to your client, and thought about your client, the facts, the law and society, you are ready to write. But you must write two documents: not just the contract, but also a cover letter to the client.
The cover letter will explain why you included some clauses and omitted others. It will confirm what your client told you, what your legal research found, and what your conscience requires. It will persuade your client that the contract you have written is the only one you could write under the circumstances: a contract that describes the transaction in a manner which will promote the client's success and limit the client's risk while dealing honestly with the other parties; a contract that will not offend citizens of a free society who have fought long and hard for justice and the procedural safeguards it requires.
Ten Tips for Writing
How do you do this? See my article Fifty Tips for Writing the 21st Century Contract That Stays Out of Court, ALI-ABA the Practical Real Estate Lawyer, American Law Institute-American Bar Association, Nov. 2000. Here are ten of the tips:
1. Start the contract or will with a simple, generic form.
2. State the correct legal names of every party, and use nicknames like "contractor," "corporation" and "Jones." But be sure to be consistent.
3. Write the contract's recitals (whereas clauses) to provide the background facts the judge or jury will need to construe the contract.
4. Begin to write the body of the contract using the contract deal points from your client's outline. Add to that clauses to cover the matters raised in your own thinking. Remember to listen to your conscience as you write.
5. Use words that have a quick and certain meaning. Write so clearly that a nonlawyer can understand it. In technical contracts where jargon is necessary, explain it in words laymen can comprehend.
6. Write in short sentences using active tense. Long sentences written in passive tense are boring.
7. Be consistent, not creative, in terminology. There is nothing wrong with a contract using the word "goods" one hundred times if it is a contract for the sale of goods. Maybe an English teacher would grade this down for a short story and call it repetitive, but in contract writing it is called consistent.
8. Make it easy to navigate the document. Give each paragraph a heading and underline it. Group paragraphs logically. Sometimes this means chronologically in the order work is to be done, sometimes this means by subject matters such as scope of work, compensation, term, miscellaneous.
9. Be consistent in grammar and punctuation. Watch where you place ending quote marks, whether you place commas after years and states and similar variations in style.
10. Check spelling. It counts.
The Future of Law as a Profession
"We must remain vigilant if we are to preserve our profession." This is the message from American Bar Association president-elect Philip Anderson as repeated in the June 1998 edition of the Florida Bar Journal by our Executive Director John F. Harkness, Jr. The legal profession began 700 years ago with the establishment of the Guild of Lawyers and Notaries in Florence, at the same time as the Guild of Doctors, Apothecaries and Grocers. Mr. Anderson goes on to note that only doctors and lawyers required a doctoral degree from a university, setting their professions apart from the other trades. He also notes that the other trades largely lost control over their workplace during the Industrial Revolution when they became employees due to mass production and regimentation, or to use my words, due to mechanization of the workplace.
In 1979 renowned computer scientist/experimental psychologist Christopher Evans gave us his own thoughts about the future of the professions in a mechanistic world. The jacket of his book The Micro Millenium exclaims:
Mr. Evans predicted that the microcomputer would bring a revolution more potent than the industrial revolution of the last century, and he boldly predicted the changes that the microcomputer would bring in the following twenty years. He predicted that in the short-term future from 1979 to 1982 the microcomputer revolution would be largely concerned with gadgetry and gimmicks, such as calculator watches, personal databases, and video games. Next would come the medium-term future, where we are now, that would include word processors and office computers. He predicted the decline of the professions due to the fact that the microcomputer could store much more data than humans and process it incredibly faster. Here is what he said about the professions of law and medicine:
Unfortunately, Mr. Evans, like so many futurists, did not live to see the future he predicted. He met an untimely death in 1979, the same year he wrote The Micro Millennium.
And lest you think his predictions were wrong, let me tell you about a strange thing that happened last week while I was writing this paper. My mailman walked in and handed me a seminar invitation from the National Institute for Trial Advocacy of Notre Dame Law School that reads:
"Theater Tips and Strategies for Jury Trials
Quick, where do I sign up?