Friday, December 28, 2012

Lawyers (Other Than Me) Aren't Useless

I've noticed a weird trend of smart, pragmatic type thinkers assuming that lawyering isn't really a sector of the economy we want to expend resources on or see a lot of innovation in.  Here's Matt Yglesias.

It seems to me that having smart, ambitious, hardworking people become lawyers is a huge waste. When Apple and Google compete to produce the best smartphone operating system, consumers win as products improve. But while there's presumably some level of lawyerly incompetence that would be socially problematic, at the margin, big firms getting better and better at suing one other doesn't help anyone.

I think the basic idea is that law is a zero sum game, and more resources spent on lawyering just turns it into an arms race. Party A gets better lawyers so Party B has to get better lawyers and now we are spending more on lawyers, but it is still Party A vs Party B with the same facts and the same law and the same equally good lawyers (if better than the last ones) representing each client.  We don't gain anything, just more expensive and subtle legal tricks to get to the same outcome

This way of thinking about the legal profession is breathtakingly stupid.

The basic problem here is that once Party A and Party B get better lawyers, they also might get a different outcome.  Maybe Party A was going to win, but there is some subtle and obscure point of law or argument or fact that can only be dug up by great lawyering, so now Party B will win.  It doesn't matter that the arms race means they *both* have great lawyers capable of making subtle arguments, once they got there it turned out that the subtle arguments are all in Party B's favor.

This happens.  I've seen it.  Sometimes, as things get elevated to better and more senior attorneys, someone catches something or writes something or thinks something that worse lawyers missed, and it changes the whole case, without the great lawyers on the other side having their own set of innovative tricks to change things back again. Better lawyers can change outcomes, and that means they can help society in three ways:

1. They Make Better Laws

In our country, courts make law.  Better lawyers means better judges (who are normally required to be lawyers) getting better, fuller arguments presented to them by both parties before they make that law.  I would guess that smarter judges hearing smarter arguments from smarter lawyers make smarter laws.

2. Our Legal System Can Bear More Complexity

I think there is a dumb idea among non-lawyers that the law is complex because lawyers and judges and legislators make it so.  That ain't the case.  The law is complex because the world is complex.  *Really* complex.  It is nice when the legal system can be complex too, because excessively simple rules either lead to 1. Unjust and inefficient outcomes as a mess of complex real world fact patterns are decided with too-simplistic rules not designed to account for them or, 2. A lack of predictability as the rules are made wishy-washy enough to deal with complexities on a case-by-case basis.  So, as an example, here's a dude complaining that the world has gotten more complex with the advent of driverless cars, and we desperately need a bunch of complex new law to deal with it.  New weird facts have raised uncertainties under the old, general laws, so now people want the law to be more specific and complex.  Happens all the time.

But if we want a complex system where outcomes can hinge on subtleties, we need minds that can grasp subtleties to work that system.  The basic limits on how complex the law can be without costs becoming unbearable are library sciences and lawyer smarts.  The smarter the lawyers, the less we have to trade off flexibility for predictability.

3. It's fairer

There's probably a reason, once we dug up all the best, most subtle arguments, Party B won.  When a party wins after the court has been exposed to all the arguments -- subtle and simple -- they are more likely to be the party we want winning then when a party wins after being exposed to only the most obvious arguments.


Anyways, I'm not claiming we should pay lawyers more or less or the same.  Obviously the benefits of spending more on lawyering has costs.  I'm just saying, the benefits exist in the first place.  You can't unthinkingly dismiss the idea that spending a lot on lawyering is socially useful.

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