Without Pics, It Never Happened

It’s an internet meme, the Rules of the Internet.  It’s a funny joke to most, though in a peculiar way it has always carried a kernel of truth.  But as  Max Kennerly found out after trial, the joke is on us. 

Last Friday, after 15 hours of deliberations, the jury returned a verdict in favor of our client on all six questions — relating to the nature of the agreement, damages, whether our client breached his obligations, whether defendants would get a set-off, and when the statute of limitations began to run — and awarded him $4.17 million in damages. The vote was 10–2, which is good enough under Pennsylvania law. The judge kindly let the attorneys talk with the jurors (assuming they wanted to talk, of course), so I went back to figure out what happened with those two holdouts.

As is invariably the case, what is learned from the jurors isn’t quite what one expects.  The case involved an oral agreement, a handshake.  No pics.

When we talked to the jury, we learned that the two jurors who felt we hadn’t met our burden, and then two more jurors who had kept the damages award lower (the remaining eight jurors wanted to award our client nearly $7 million), all had one thing in common: they were under 30 years old, and they expected more of a paper trail for our client’s claims. Said one, “I felt your client was negligent in not doing more to protect himself with a written agreement.”

The norms, the expectations of Max’s baby jurors were so strong that they were incapable of conceiving of a legitimate world where there was trust.  The notion of two people shaking hands, making a deal, and honoring that deal, when it came to anything of substance, was too far removed from their reality for them to accept.  No contract? It didn’t happen.

Plenty of stuff has been lost in the past decade. Some understandably, such as rotary phones. Some disturbing, like United States currency, which has become presumptive proof of criminality.  But no one said anything along the way that young people have lost the concept of honoring their word.

Maybe it’s because we’ve become a lawyered-up society. Maybe it’s because writings, whether texts, emails, twists, whatever, have replaced all other forms of communication, such that there must, by definition, be written evidence of every breath.  Maybe it’s because a cottage industry tells young people that legal advice is free to all, and worth every penny.  Or maybe it’s because their world has become their memes; the funny joke has replaced social norms as the true glue of society.

Kevin O’Keefe asked a question yesterday, Don’t law schools have an obligation to teach law students how to use the Internet?  For reasons that are unclear to me, he spoke to a group of third year law students at University of Washington Law School about the internet.

I was invited to come in and speak on how lawyers can use the Internet for professional development (getting to be a better lawyer) and business development (getting a job or getting clients in an area you want to work in – area of practice or location).

While it may seem odd that a law school invited a vendor in to speak to students, I’ve been on a panel with Kevin and know that he gives not only a good talk, but a straight talk. He doesn’t sell his products, or even push his LinkedIn Blogging group (“where brain cells go to die”). The old lawyer part of him kicks into gear and he tries to provide serious information, if only a bit tainted by his perspective.  Then again, his audience tends not to want to hear straight information, but rather the quickest, surest way to make money. You can’t blame Kevin for what his audience wants of him.

What he found was disconcerting.

Rather than being ahead of the curve in their use of the Internet, most of the students were behind practicing lawyers in how to use the Internet to accelerate relationships and word of mouth referrals. Ironically, all of them agreed it was referrals and a strong word of mouth reputation that drove a good lawyer’s practice.

Were these 3Ls the last bastion of disconnected, rotary phone users?  I suspect what Kevin means is that they may have all clutched a iPhone in their grubby little hands, but their grasp of the internet was limited to lurking on  4Chan and reading Above the Law, thinking that this is what being a lawyer in the age of the internet was all about.

Kevin was directing them to an internet they never knew existed, the one where lawyers try desperately to sell themselves to each other. It was an epiphany.

Afterwards out in the hallway (where you get to know students and their struggles), students came up to me and asked why doesn’t someone like me teach a semester long class or do a semester or year long clinic on how to use the Internet in the ways I was trying to cover in 2 hours. Students told me that no one had told them how to use the net this way. One student told me he felt so far behind the times.

If ever there was an argument for dispensing with the third year of law school, this is it.  Finally, something of worth to be learned. Not cross-examination.  Not how to craft an effective motion.  Not even the rudiments of negotiation.  Nope. They wanted to know how to sell themselves on the internet.  They wanted a semester’s worth of it, if not a full year clinic.  They know what matters.

Images of another 10,000 websites popping up overnight, proclaiming shiny new lawyers as “experienced, aggressive and caring,” with a very impressive resume provided one doesn’t fact check much, came immediately to mind.  I wonder whether any lawprof has taken a look at what students are saying about themselves on the internet a year after graduation? 

But as long as it’s there, on the internet, in writing, with pictures, it’s real.  The handshake is dead. Honoring one’s word is for dinosaurs.  Anyone who doesn’t create hard proof deserves to get nothing.  We used to call this memorializing an understanding, but it’s now been subsumed by an internet meme.  And with Kevin’s help, they’re coming to a lawyer website near you.  You can rest assured they’ll have pics, because without pics, it never happened.

15 thoughts on “Without Pics, It Never Happened

  1. Kevin OKeefe

    Kennerly’s verdict, a good story in itself, all the way to me. Interesting post.

    I try to help law students the best way I can. I left the practice of law to help other lawyers and the people they serve. I thought I could make more of a difference this way. Law students are included in this group I want to help.

    I’m not telling them to hawk their wares on websites or to get out and market themselves on the Internet. I am telling them that the Internet is an excellent tool to use to improve their station in life. I was surprised that most of the students never thought of the net that way. They in fact looked at the net as a place to put up websites – that’s what they thought you did to connect with people and build a reputation. To me that’s nuts.

    One of the kids so surprised about how he could use the net and who was interested in learning more had no smart phone to get Twitter, Facebook, and the like. Perhaps a SHG in the making.

    I don’t want to be the ‘how to’ guy. There’s YouTube videos for that. But I wouldn’t mind being the guy to inspire law students to be situationally aware – and that includes knowing how the Internet used effectively can be very powerful. God knows Thomson Reuters Findlaw and LexisNexis are not going to rock the status quo and inspire law students to use the net differently than getting a website – and most importantly from them.

  2. David

    I’m under 30 so maybe this colors my outlook more than I realize, but my point of view on the case that prompted this whole thing is that trust is important but shouldn’t be legally enforceable. If you want to make a deal with someone you trust, use a handshake. If you want to make a deal you can sue over, get it in writing.

  3. Max Kennerly

    Nice connection between the posts.

    I genuinely wonder if those jurors’ views will change as they have more experience in the real business world, and see how commonplace it is for parties to embark on something big together without ever even thinking of reducing it to writing.

    On the marketing, I think much of what Kevin saw was fear. Law graduates today, particular those from schools that don’t send dozens of kids into the federal clerkships every year, are scared to death about how they’re going to build their business, don’t think they have the means to spend ten years building a professional reputation, and are looking for any advantage they can get. When they hear of getting clients and building reputation on the Internet, it’s like they’ve just been told that gold was discovered in the West. There’s so much promise, and so little known about the risks and difficulty, that it looks like nothing but upside. They don’t recognize that the most common experience on the Internet, like the most common experience searching for gold, is failure.

    I agree with Kevin that recent law grads should consider building their reputation on the Internet through writing and whatnot when they have nothing else to do, my problem is if they end up spending time blogging when they could be doing real networking or building genuine experience. It’s scary how easily blogging can generate the appearance and feeling of doing real work.

  4. Jordan

    “Hey yo brah… how much would you charge for a divorce? All I got is like, $500… that’s a lot of money. Can you do my divorce for $500? You lawyers are so greedy, you don’t need more than that. Oh, and how does property get split up? I have like three cars and I wanna know if she can get them. Also, will she get to keep the kids? We need to get to work on this ASAP.”

    “Um… hi. Who are you? How did you find me?”

    “Internet, bro.”

  5. SHG

    Your jurors aren’t the only pre-30s who think that way. See above. Will they come to see things differently from exposure to different ideas? 

    It certainly hasn’t worked for you. Why should it work for them?

  6. SHG

    Again with the brahs?  You really need to do something with this fixation you have on brahs. It’s kinda creepy.

  7. Lurker

    I’m appalled at this comment. Trust, the fides of Romans, is the cornerstone of any civilised society. Thus, nothing more can be more legally enforcable than trust. And essentially, almost all crimes, torts and contractual causes of action can be understood as arising from some kind of breach of trust.

    In addition, David’s view is in strong contradiction with the contract law. There, oral contracts have long been held to be binding, both in the old English common law and in New York law (Pennzoil vs. Texaco). And don’t even mention the old Roman law, where all contracts were oral and the written contract was merely a documentation of the oral contract: if it could be proven that the oral contract had not been made, the properly signed written contract was void.

  8. SHG

    Bear in mind that David is not only under 30, but a lawyer, presumably trained in contracts and aware that an oral contract is every bit as enforceable as written, subject to the statute of frauds. And still he refuses to accept their validity.

  9. JM

    The anecdote about these young jurors describes a generation who generally thinks anyone who is a “gentleman” is a chump. Exhibit A is their hero: Facebook founder Mark Zuckerberg. He betrayed a number of unwritten agreements to achieve wild success.

  10. Dubya

    Great post. As an executive who is under 30, I feel a strong urge to comment. First, I have had partners walk out on signed contracts where I have put up capex, and then sue me when I attempt to claim the balance of the capex alone (claiming this highfalutin “oral agreement” language, which, to my recollection, never happened and was in direct defiance of the obligations stated in our contract). I have had customers claim that normal operating mistakes have cost them vast, unrealistic sums of money. I’m in IT… If I had a dollar for everytime i have heard that an hour long delay in email delivery has cost a company “hundreds of thousands of dollars” and demanded recompense for damages, well, I would have several dollars. Guess I’m lucky (or unethical?) I didnt just trust in their good nature as humans and wrote a service agreement!
    Maybe we should lay off the young folks, boomers. If we dont take you for your word, maybe its because your generation has wiped their ass with a constitution we were taught (by boomers) was the bees knees and spent our country’s inheritance bailing themselves out of investments that anyone with eyes to see were, well, retarded (im looking at you social security and high interest mortgage signers).
    Young people today have to look forward to a future with less opportunities than their parents, more tasers and drug arrests, more unsolved violent crimes, endless war and a state that lies to us as a matter of course. And we are supposed to take peoples words on faith with that one thing we still have some control over – our own property? No thanks!

  11. SHG

    Glad to give you an opportunity to vent. It’s not quite clear how your rejection of trust related to people who claim your delay damaged them, or that boomers are evil (though the “bees knees” reference was good for a smile), but if so, then it would seem more rational for you to want to do better rather than worse than boomers.

  12. Joe

    I think this is reaching a bit too far and reading too much into the situation to reinforce stereotypes. It’s nice to pretend that once upon a time the handshakes of gentlemen meant something and that the under-30 crowd no longer appreciates that. I’m skeptical that was ever the case.

    Why do we have statutes of frauds? It’s because we’ve never been able to rely on a handshake for the “big” things: long-term contracts, real estate transfers, etc. We enforce oral contracts because people are entitled to rely on their validity, but it’s limited (and has been for centuries). If I’m not mistaken, the UCC Art. 2 limit is $500 (the same UCC that was drafted way back before ye ol’ internet).

    As to this particular example, it’s a really low sample size that’s jeopardized by a number of other factors, like (as Max suggested above) a relative lack of life experience and people making deals orally. Or it could be that they stuck together as a generational clique in the jury room. Or it could be a more general generational statement against older, wealthier individuals.

    And if the under-30s have lost the conception of trust, you should ask yourself why that is. The idea that the internet or other social developments have made people more skeptical of each other and less trusting is specious at best (if anything, I’d argue the opposite). I would submit that if the current under-30 crowd lacks belief in the handshake (or at least more than their ancestors), there are deeper issues at work, like the breach of various social contracts, or what some commentators call “overlawyering,” both of which are developments that pre-date the under-30s having any idea what was going on, but certainly would affect their belief in trusting the vaunted handshake, and they have little to do with the internet.

  13. SHG

    The question of what gives rise to this phenomenon, if it is a phenomenon, is an open question. But to suggest that your being skepical is an argument is not only silly, but renforces the point. You didn’t experience it so you don’t believe it happened? Is that because you need pictures?

    Things that happened, such as oral contracts happening regularly based upon people believing in behaving honorably, whether you believe it or not. That they happened before you were born doesn’t mean they have to be proven to your satisfaction, or that you can deem them conveniently specious.  As happened with Max’s jury, you don’t get to recreate history because it’s not your experience, or decide that others lives must be led in accordance with Millennial expectations. The inability and arrogance to believe that anything exists outside your childish experience is the problem. Whether it’s the problem of a few people or a generaton is part of the question. Your comment suggests it’s generational.

    As for blaming everything on your predessors, there has to come a time when you grow up and take responsibility. Let’s assume everyone who came before you were awful people. Do you plan to spend the rest of your life whining about it and justifying your generation’s failings because of it? Will you ever grow up?

  14. SHG

    Exactly.  One can always question the sufficiency of proof, but it’s the rejection of the notion that oral agreements can be valid that gives rise to the problem.

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