What makes a lawyer in 2017?
Introduction A vine is being trained up a trellis in a garden. What makes the flowers in spring? The gardener’s hands, working with the vine, lead it to a sunny corner; the vine’s heliotropic animism plays a hand too. Lawyers come in a variety of species in 2017: some are climbers, some are natives and others are introduced, a few are weeds. Each sets down roots in a different corner, but all grow in the same garden. Just as the legal profession shapes its members, informing practice standards and ethical obligations, the members in turn shape the profession, transforming it over the years from a bastion of white male privilege into one that – if only in its junior ranks2 – has a degree of gender parity and has only two years ago appointed the first Aboriginal Senior Counsel3.
Original photoprint taken from ‘Scenic Views of Western Australia’s Beauty Spots’, published by Sampson & Co, c1910, n.d. (Trowbridge Gallery, Perth). 2 Katie Walsh, ‘Courtroom roles scarce for women barristers’, Australian Financial Review, 8 September 2017, 33. 3 Tony McAvoy SC: see http://www.fjc.net.au/barristers/mcavoy-tony.html.
The forces making the lawyer of 2017 push and pull in different directions, but in a manner that makes the plant stronger and the garden more harmonious. This essay addresses four such forces.
Craftsmanship / Commoditisation In his latest book, Cal Newport describes the work of a blacksmith, painstakingly forging by hand using ancient techniques a sword that could be manufactured in a fraction of the time by machine4. The relationship between the craftsman and his tools and materials and the patient cultivation of meaning already present in the materials together create a sense of deep professional satisfaction. But this sense of meaning is not limited to manual trades, Newport argues, and can extend to his own profession of computer programming, citing another programmer’s observation that “beautiful code is short and concise… as if you were writing a poem”5. Like forging and coding, the work of the everyday lawyer involves wordsmithing and the crafting of a very specialist language. Drafting contracts, conducting legal research and writing reasons for decision involve a sustained level of focus, expertise and drawing on the lawyer’s own well of experience and judgment that, executed well, is the essence of professional satisfaction that Newport characterises as ‘deep work’. There is, after all, a beauty in well-crafted legal prose. In contrast to the ethic of the bespoke craftsman is the pervasive ideology of efficiency optimisation, arising out of the operations management discipline in business schools6, and methods such as Lean Six Sigma from manufacturing enterprises7. And yet the benefits of what Richard Susskind calls the ‘commoditisation’8 of legal work are manifold. Susskind questions the value of a ‘cottage industry’ approach to legal services when mass production and customisation can produce a less costly and better quality service9. It is a myth engendered by law school curricula, Susskind argues, that legal problems are unique and require bespoke solutions. All lawyers use precedents and templates, and the sooner we appreciate their value, improve and develop them and even take the next step from standardisation to systemisation (using document automation, for example, to produce employment contracts), the better we serve our clients and the community as a whole. A commoditised approach to legal services requires not only a familiarity with business techniques, but also a deep understanding of the nature of the legal work to be delivered. Conducting high volume migration litigation for the Immigration Department or drafting employment contracts for a large employer would benefit from the principles of product manufacturing, with its focus on resource allocation, line balancing and quality control10. In 4
Cal Newport, Deep Work: Rules for Focused Success in a Distracted World (Grand Central Publishing, 2016), 72. 5 Newport, 88. 6 See eg Introduction to Operations Management, University of Pennsylvania Wharton School, http://www.coursera.org/learn/wharton-operations and accompanying textbook Christian Terwiesch, Matching Supply with Demand: An Introduction to Operations Management (McGraw-Hill Irwin, 3rd ed, 2013). 7 Peter Pande, Robert Neuman and Roland Cavanaugh, The Six Sigma Way: How to Maximize the Impact of Your Change and Improvement Efforts (Business Books, 2nd ed, 2014). 8 Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future (Oxford University Press, 2nd ed, 2017), Chapter 3. 9 Susskind, 469. 10 Terweisch, Chapters 4, 7 and 10.
contrast, conducting a one-off piece of litigation for a company in an unfamiliar area or drafting the transactional documents for a government agency undertaking a large public work would benefit from the principles of project management (both in understanding how legal fits into the project as a whole, but also in planning, delivering and monitoring the legal services component of the project).
Conservatism / Radicalism When Falstaff proclaimed that his first post-revolutionary act would be to “kill all the lawyers”11, he might have been reflecting the common observation that lawyers are bulwarks of the status quo, abhorring the legal vacuum of the revolutionary moment. It is undoubtedly true that lawyers play a fundamentally conservative role. A number of factors explain the conservative mindset, including the respect that legal education engenders for political and legal institutions, the quasi-institutional role that lawyers play as ‘officers of the court’, the obligation of a lawyer to advance the interests of their client not a broader social movement or public interest (such that even if the client’s case was a ‘progressive’ one, the professional lawyer might advise to accept a settlement rather than make a political point12) and the lawyer’s training to think in terms of logical syllogisms, which leaves little role for critical examination of the legal rule itself13. Much can be said for the conservative position, particularly combined with the rigorous observance of legal ethics. But lawyers are also made by the injunction that – to adapt Marx – the point is not just to understand the law but to change it. It is not necessary for the lawyer to work for a law reform commission, community legal centre, regulatory agency or union or other peak body to appreciate that advances in human rights, efficiency, equality and dignity are not made by gentle urging but by sustained struggle in the battle of ideas. The lawyer is in a privileged position to both understand the gaps between the current state of the law and what justice requires and articulate the case for why the gaps should be bridged.
Complexity / Simplicity The lawyer of 2017 is faced with Brobdingnagian levels of complexity, manifest in at least three areas. First, the efflorescence of statute law: from 1901 to 1910, 1072 pages of legislation were passed, while in the first six years of the following century, 40,266 pages were14. Second, the mind-numbing complexity of modern commercial litigation, which reached its apogee in the Bell trial, conducted over 404 days in the building at the beginning of this essay, producing a decision of 9762 paragraphs, 2667 pages and, alarmingly, 12MB of text15. Third,
William Shakespeare, Henry IV Part 2, Act IV, Scene 2. For example the $70m settlement accepted by 1900 asylum seekers held on Manus Island: see Michael Koziol and Benjamin Preiss, ‘Manus Island class action: government to compensate former detainees in huge settlement’, Sydney Morning Herald, 14 June 2017. http://www.smh.com.au/federal-politics/politicalnews/manus-island-class-action-government-to-compensate-former-detainees-in-huge-settlement-20170613gwqlu3.html 13 Yaniv Roznai, ‘Revolutionary Lawyering? On Lawyers’ Social Responsibilities and Roles During a Democratic Revolution’, Southern California Interdisciplinary Law Journal, Volume 22, 353 at 370-373. 14 Chris Berg, ‘Policy without Parliament: The growth of regulation in Australia’, IPA Backgrounder, 19/3 (Institute of Public Affairs, November 2007) 2. 15 Bell Group Ltd (In Liq) v Westpac Banking Corporation [No 9]  WASC 239. 12
the floridly complex transactional documents that created the financial products within which risks were buried so opaquely that the whole financial system almost collapsed in 200816. One response to this complexity is to accept its inevitability. Former Chief Justice French observed extra-judicially that nothing could be more simply expressed that section 6-5 of the Income Tax Assessment Act 1997 (Cth), which provides that assessable income is “income according to ordinary concepts”17. Yet much judicial ink has been spilled in articulating exactly what this phrase means and the tax lawyer therefore needs a working understanding of these decisions. Another response is to play one’s part in, if not cutting through, then at least understanding and managing complexity18. Perhaps the most promising method for managing complexity is the ‘checklist method’, derived from the aviation industry, but applied to great effect in engineering and surgery19. While the legal information industry has started going in this direction20, further improvements could be made based on lessons from those other industries. First, there needs to be an appreciation of the function different checklists perform. Some are ‘pause and check’: routine matters the lawyer is familiar with but which require perfection, such as settlement checklists. Some are ‘read and do’: an unfamiliar but important and complex area of law that the lawyer needs to quickly get across before advising21. Second, while legal matters rarely have the criticality of aviation or surgical emergencies, the well-drafted checklist has a number of key features that aid its ability to convey the key elements of the required information quickly – simple sentence structure, uncluttered presentation, logical format, appropriate font22. Such injunctions are of course the bread and butter of the Plain English movement. What is extraordinary about the Bell first instance decision is the logical clarity and concision with which its 12MB of text are drafted, including extensive use of sub-headings. A final word on Bell should go to the infamous drafter of the submissions for the Tax Commissioner in the High Court appeal23, who managed in 17 pages to distil the essence of highly complex issues of fact and law, pithily concluding that “the basic problem is that the drafter of the Bell Act has either forgotten the existence of the Tax Legislation, or decided to 16
The role of complexity in such financial products is discussed in Gillian Tett, Fool's Gold: The Inside Story of J.P. Morgan and How Wall St. Greed Corrupted Its Bold Dream and Created a Financial Catastrophe (Little Brown, 2010). 17 Chief Justice Robert French, “Law — Complexity and Moral Clarity”, Address to the North West Law Association and Murray Mallee Community Legal Service, 19 May 2013, 2. 18 Intelligent Management, “Don’t Cut Through Complexity: Understand it and Manage It (Sorry, KPMG)”, 9 August 2014, http://www.intelligentmanagement.ws/dont-cut-complexity-manage-sorry-kmpg/ . 19 Atul Gawande, The Checklist Manifesto: How to Get Things Right (Profile Books, 2010). 20 See eg. checklists at the end of the chapters in Carter on Contract (Lexis Nexis) and various College of Law Practice Papers (Lexis Nexis). 21 John Gillies, ‘The Checklist Manifesto and the Smarter Lawyer’, Slaw, 24 February 2010, www.slaw.ca/2010/02/24/the-checklist-manifesto-and-the-smarter-lawyer/ . 22 There is of course a checklist for how to create an effective checklist which, like the self-licking ice cream cone, meets its own criteria, created by Dr Gawande for the Brigham and Women's Hospital Center for Surgery and Public Health Dissemination Team, and Dan Boorman of Boeing, see http://www.projectcheck.org/checklist-for-checklists.html . 23 Former Commonwealth Solicitor General Justin Gleeson SC.
proceed blithely in disregard of its existence”24. The subtle power of this advocacy bore fruit in Justice Gageler’s concurring opinion: “that indeed”, His Honour opined, “is the basic problem”25.
In the Weeds / the Well Cultivated Garden There are many Perth lawyers who earned their post admission experience solely by conducting discovery for the Bell litigation26. It is an inevitable aspect of legal practice that we spend much of our time ‘in the weeds’, not even considering the law but ascertaining the facts. When it is pointed out that the commoditising force of e-discovery will enable fact gathering to be performed more efficiently, or even by non-lawyers in offshore jurisdictions, I always point out that the Bell discovery process was predominantly of documents in paper-based offices. The volume of communications in the offices of 2017 will make future Bell cases collapse under their own virtual weight. It is in that context that today’s lawyer needs to cultivate a sense of the bigger picture within which their daily travails fit. There is no better antidote than expansive works of literature. The best corrective to an extended bout of tax litigation is the musings of David Foster Wallace in The Pale King, concerning a group of IRS agents working in Peoria in the 1980s27. The transactional lawyer could do worse than consider themselves an honorary scrivener and ponder the fate of Bartleby who, when called upon to examine a document, in a “singularly mild, firm voice, replied, “I would prefer not to.””28.
Final thoughts The lawyer of 2017 is made by finding a balance between the satisfaction of craftsmanship and the efficiency of commoditisation, between the conservatism of their training and profession and the insight they have into a better future, between the complexity of the law and the demands of practice and clients for simplicity and between the unglamorous slog of detail and the liberal education that puts it all into perspective. Thus well-tended, the garden will flourish.
S.R. Thackrah, 13 September 2017
Bell Group N.V. (in liquidation) v Western Australia; W.A. Glendinning & Associates Pty Ltd v Western Australia; Maranoa Transport Pty Ltd (in liq) v Western Australia High Court, S248 of 2015, submissions of the Federal Commissioner of Taxation at . 25 Bell Group  HCA 21 at . 26 Anecdotal, but go to any bar on St Georges Terrace and this will be confirmed. 27 David Foster Wallace, The Pale King (Back Bay Books 2012). 28 Herman Melville, Bartleby, the Scrivener, annotated version at http://www.slate.com/articles/arts/culturebox/2015/10/herman_melville_s_bartleby_the_scrivener_an_inter active_annotated_text.html.