My fellow curmudgeon, Mark Herrmann, offers another fundamental concept worth noting in his Above the Law post, On Tweedledee And Tweedledum, Esq. Plus, who doesn’t love a Lewis Carrol reference?

Remember the old joke about the father and son playing golf in Montana, where they’re told by the ranger that if they see a grizzly bear, don’t run away as the bear can run far faster than they can?  So when they happen upon the bear on the 7th hole, the son bolts. The father yells at him, “Son, the ranger told us not to run because you can’t run faster than the bear.”  The son responds, “I know, Dad, but I don’t have to run faster than the bear. I just have to run faster than you.”

Welcome to who’s the better lawyer.

After the Tweeds have been practicing law for a few decades, each having “puked his puke of a life away here, I tell you,” the Tweeds both have pretty fine track records. They both have long lists of cases they’ve won. If they’ve been practicing for 25 years, ineptly handling two cases each year and — arithmetic being what it is, and all — winning half of them, then the Tweeds can each boast of having won 25 cases during the course of an illustrious career. These guys must be good! How else could they have had such success?

Somebody has to win a case, and even the mediocre lawyer is bound to have his day, especially when the other guy is mediocre too. Maybe worse than mediocre.

What of the fact that “he’s won an awful lot of cases for us in the past”? Bad lawyers win their share of cases — so anyone will win some cases for us. But better lawyers win more than their share of cases. And we don’t have a control universe here: Perhaps Tweedlewhoever did not spot a critical issue back in 2002, so we never filed a winning summary judgment motion in that case. I understand that we may have settled on the cheap, but perhaps we should have gotten out on motion.

When Tweedlewhoever tells us that he did a great job preparing a witness, how do we know it to be true? The in-house lawyer may not have attended the prep session; even if she did, she surely didn’t read all of the e-mails and documents and figure out what a great prep session would have looked like. Tweed tells us that he did fine work; why should we believe him?

Granted, we don’t care much about the in-house counsel perspective around here, but the same is true for all lawyers. They’re good because they say they’re good?  They’re good because they won X number of cases? 

The guy is no good, and he doesn’t even know that he’s no good. (Or, as I’ve quoted more elegantly before, “he knows not and knows not he knows not.”) We should shun him.

Far too many, lawyers and clients alike, fail to recognize that neither self-assessment nor self-promotion using the puffed ephemera of “wins” provides a reliable basis to believe that a lawyer is competent, no less skilled.  The internet, with the brilliant help of marketers who are skilled at playing the remarkable inability of people to discern logical fallacies or employ critical thought, has exacerbated this problem multifold.

Read a few lawyer websites and take note of the worthless, if not downright stupid, claims of greatness. And I’m no more above doing it than anyone else, because the fact is that there just isn’t much a lawyer can say about himself that isn’t complete, total nonsense.  Without it, my website would be a picture, an address and a whole lot of white space.

The ugly reality is that the website of the best lawyer in the world and the worst would be identical, except for the names.

But that, as Herrmann points out, isn’t going to fool anyone who can distinguish a good brief from crap, or a lawyer who can cross a witness from a fumferer.  There is a reason why curmudgeons urge clients to find a lawyer by referral from a good lawyer. Good lawyers can tell whether another lawyer is any good or not.

Sorry, marketers whose business is built on turning a mutt into Clarence Darrow, or futurists who believe that blowing smoke out of your butt on the internet is the new definition of transparency.  Good work is good work because it’s good work, not because you ran faster than the other mediocre lawyer or are shameless or clueless enough to believe your own press releases.