Tuesday, August 26, 2025

Some musings on the changing Practice of Law

 I started in law school 40 years ago.  Here are some of the changes I've seen.

- Technology changed the economics.  Mobile phones, laptop computers, scanners, cloud storage, virtual meetings - these are way cheaper than buildings in downtown offices close to costly over secure courthouses in congested cities or towns.  Nor do lawyers anymore need such office space for secretaries to type and maintain paper files, or to house law libraries.  Good lawyers can be anywhere, and the smart ones already are.

- A diluting talent pool.  Just like in professional sports, there are only so many really good players.  The more teams, the fewer really good players on each.  Law schools are paid to pump out little lawyers.  Little lawyers become judges, prosecutors, defense attorneys, politicians (!) etc.  Add in the idiocy of DEI, and the "best and brightest" are becoming fewer and farther.  One fact that hasn't changed is clients want results.  When things get rough they don't care about claimed race, or sexual preferences/perversions, or pronouns, or any other virtue signaling madness.  Even the wokest of the woke will rather have a winning lawyer than one that checks all the boxes but loses.

- The system is overwhelmed.  Too many laws (many of them really dumb or partisan), too many people (so many of them non-English speakers), and trying to do too much to solve the world's problems via courtrooms (like addiction, domestic strife, neighborly disputes, incivility) clog, slow, choke and greatly cost increase what historically has been a system to resolve recognized substantial legal issues among citizens.  Courtrooms now too often sound like lame therapy sessions.  Whole industries leach off the system, from the prison/jail industry to probation departments to community service agencies to sobriety monitors to treatment providers etc. etc.

- Politics trumps justice.  Especially at higher levels - where one might expect better - judges/justices decide a result based on their politics and then work backwards to justify it (usually with hypocritical, tortured and shallow legal "reasoning").  They follow their feelings, not the law.  This sad development is getting worse, undercutting faith in and hope for what should be a strictly impartial system for Justice.

- Judges won't enforce rules.  Civil and criminal matters have longstanding, tried and true rules governing their process, evidence, pre-trial matters, and trial.  Partly because of their inadequacies, more and more judges (see talent pool dilution above) let slide rule violations.  This makes predicting what will happen in a case (something clients understandably want) much more difficult/impossible.  It increases the time and expense of cases for the same reason.  Judges are quick to complain that lawyers don't follow the rules.  In my experience, it's judges not enforcing the rules (or applying established law) that hurts the system.


Monday, August 25, 2025

"As is" clauses in contracts

The form contracts associated with selling or buying a home (or a vehicle for that matter) usually contain a clause that the sale is "as is."  Generally this means defects not otherwise hidden or disclosed may not give rise to redress after the deal closes.

However, language in the same contracts may undercut the as is clause.  Especially more specific language elsewhere may give rise to a cause of action for failing to tell the other side about known "adverse material facts" - in addition to misrepresentation, nondisclosure, concealment of defects or of course downright fraud.  

The bottom line is that "as is" will not protect in all circumstances and does not immunize from potential costly liability.