The Curmudgeon’s Dilemma

My fellow curmudgeon, Mark Herrmann, miffs the Slackoisie over at Above The Law by raising a hated presumption.

I’ve never met you, but I assume that you’re incompetent.

I realize that sounds a bit harsh, but it’s time someone told you the truth.

Why do I assume that all new people I meet are incompetent?

No, that’s too easy. Here’s the better question: Why am I right to assume that everyone’s incompetent, and why is that a helpful way to go through life?

A nice person functions in society by giving other people the benefit of the doubt.  We assume people are honest, kind, hard-working and caring.  We assume they know what they’re doing and desire to do whatever it is they do well.  We like kitteh videos too.

But Mark’s point doesn’t apply to nice people. It applies to lawyers.  Well, at least lawyers when they’re being lawyers.  They can be nice people the rest of the time, when they’re on their own time. But when they’ve got their lawyer hat on, it’s a different matter.

I assume that people are incompetent for two reasons. First, most people are incompetent. The average lawyer is average, and that ain’t very good. I’ve learned to presume incompetence based on long experience.

But there’s another reason why I presume incompetence. Maybe my first point is wrong, and the average lawyer (or person) is actually impressively good. Maybe I’ve had good experiences with secretaries, and associates, and co-counsel in my life. I wouldn’t know; I don’t remember.

When things go right — the secretary actually makes the hotel reservation; the associate gives you a decent draft brief before the deadline; whatever — that’s like water off a duck. No one remembers when things go right. The things that stick in your memory — because they stick in your craw — are the screw-ups.

Lawyers stand in an unusual position in polite society.  When something for which we bear responsibility goes south, someone else pays the bill.  Blow an argument and a client goes to prison. Perhaps the lawyer is sufficiently caring to realize that it was his screw up, or the screw up of someone under his wing, that fell short, but the lawyer doesn’t offer to serve the client’s time in his place, just because he fells kinda badly about it.  Even if he offered, the prison won’t let that happen. Well, maybe it would.

Herrmann’s point is that we can only know with certainty what we do; other people can talk a good game but until we have sufficient experience to move beyond the presumption, we cannot take for granted that another person will do the right thing.  Just because unicorns and rainbows.  It’s not that lawyers like unicorns any less than anyone else, but that we have no right to shrug it off when the unicorn turns out to be a donkey.  It was our responsibility in the first place; it’s our responsibility at the end.

My working assumption — that everyone is irresponsible and incompetent until they prove otherwise — has served me spectacularly well. It causes me to read critically: A normal person might read a legal memo from the senior partner and think, “He’s the senior partner. This memo is probably right.” I read the same memo from the senior partner and think, “I’ve never worked with the guy, so he’s probably inept. What are the mistakes in this memo?”

Doesn’t he sound like a monumental, self-absorbed jerk?  Why is he the only one presumed capable?  Why is he the only one worthy of overseeing the performance of others?  If you ask these questions, then you have failed to internalize the point.  To Mark Herrmann, Mark Herrmann is the only one. To you, you are the only one. To me, the same.

Much as I don’t care for the trendy jargon, what Herrmann is saying is that each of us takes ownership, complete and total responsibility, for everything that happens within our sphere of responsibility.  It can never be someone else’s fault, because it’s our duty to get it right, including overseeing the other person’s probability of screwing it up.

In a way, Mark overstates his point, though likely to use hyperbole to drive home an otherwise foreign point to many lawyers.  It’s really not that we presume you incompetent.  We don’t really presume you to be anything, because we don’t know what you are, good or bad, great or horrific.  Rather, by introducing the presumption of incompetence, Mark is really asserting the duty of oversight, the responsibility to make sure that every cog meshes fully and properly with every other cog, that every tooth on every cog is sharp and precise.

To drive this point home, Mark expressly notes that the presumption of incompetence is a two-way street:

In my defense, I’ll say that I’m an equal opportunity jerk: I fully expect that, when you first meet me, you will assume that I’m incompetent. Having that working assumption — knowing that you doubt me — is also a good idea.

We can go through our practice of law, put the lives of our clients on the table, and hope for the best of others. Or we can make sure they get the best, no matter what assumptions we may make of others.  Just as I may question your work, you need to question mine.  When we all take full responsibility for what we do, including the responsibility of making sure that everyone with whom we work is similarly performing at the highest level of quality, integrity and efficacy, we provide the client with what he deserves.

Yes, even with all of this, we cannot assure a client of a win.  But we can assure the client of the best damn fight he could possibly get, and that’s what our obligation means.

So when a curmudgeon doesn’t take your fabulosity for granted, don’t get pissed and call him mean names behind his back.  It’s not personal. It’s a duty.  And just maybe, you aren’t yet as competent as you think you are.  The solution isn’t to get angry and defensive, but to do better and work harder.

It’s not that we want you to think we’re just old jerks, but that we want you to put your responsibility to the client first. Ahead of your own ego. Even ahead of us and ours.  Much as we may enjoy the respect, our dilemma is to sacrifice it for the benefit of achieving the best possible outcome for the client.

29 thoughts on “The Curmudgeon’s Dilemma

  1. Charles B. Frye

    And, while not strictly corollaries: cops lie, prosecutors hide evidence, and judges are biased against us and our clients and all three groups are dominated by the incompetent. Perhaps not true, at least not all the time, but they are necessary working assumptions. Again, the “truth” of the assumptions matter less than their function to make us work harder and smarter for the client.

    Brad Frye a/k/a Captain Obvious.

    1. SHG Post author

      Perhaps not corollaries, but nonetheless the only viable approach. However, I would add to your last sentence an additional point: Not only do these assumptions cause us to work harder and smarter, but if prosecutors and judges similarly internalized these truisms just as defense lawyers should, many of the failings of the systems wouldn’t happen.

    2. Alex Stalker

      It seems to me a very bad idea to assume opposing counsel is incompetent. A more prudent assumption would be that everyone except opposing counsel is incompetent, and assume in your preparations that opposing counsel is incredibly capable. After all, even a blind squirrel finds an acorn once in awhile, and you should probably be prepared for that eventuality.

      1. SHG Post author

        I mistakenly thought that your point would be sufficiently obvious not to require it to be stated. Clearly, I was wrong. Yes, this does not apply to opposing counsel.

  2. John Neff

    I hope that this does not mean I am supposed to assume that most of the time the client is guilty and the CDA is incompetent.

      1. John Neff

        No I don’t assume the CDA is incompetent but I do assume that when they get involved they have a huge damage control problem caused by the incompetence of others. Most people don’t do crime so there is a very high probability the client did something that accounts for their predicament.

        1. william doriss

          “Most people don’t do crime so there is a very high probability the client did something that accounts for their predicament.”

          Puhleeze, John? You can do better than that. Am surprised SHG even posted this silly comment. Let me say this about that: Most people commit crimes on a daily basis, of which they may be scarcely aware. Like speeding on the highway, rolling thru a stop sign, talking on the phone when disallowed, etc. Some of us commit mid-range crimes frequently when no one is looking. Ha. Some of us occasionally commit serious crimes for which we hope not to “get caught”. Maybe we were drunk, high, mad, or out of our (normal) minds, etc. I actually, personally know a murderer who never got caught or charged with anything. (Not namin’ any names, but he is well-known in the Italian-American community as “The Murderer”. ) If the FBI comes to my door,… I don’t know nothin’.

          And then, there is the true, unadulterated, brutal murderer O.J. Simpson who was mysteriously and inexplicably exonerated by your wonderful and flawless criminal justice system in Caulifornia some twenty years ago. Books have been written about him and other wrongfully convicted defendants. I own and have read some of those books. I believe them. Us judicial activists are still smarting over that one!

          John, all I can say is: I hope you’re not a CDL, and bye the way, get a life (so to speak). I would never hire you after that pathetic comment, not even for dog catcher (inside joke).

          1. SHG Post author

            You really think I shouldn’t have posted John’s comment? I found it quite interesting and in no need for additional commentary from the likes of me.

            You see, Bill, we assume a lot about a person who reads/comments here, but by asking a simple question, we can learn far more.

            1. william doriss

              No, I changed my mind. You’re good.The first sentence (of the two-sentence comment) is OK. It’s the second sentence quoted which bothered me:
              “Most people don’t do crime so there is a very high probability […], which should actually read: “Most people don’t do crime–COMMA–so there is a high probability,…” Strunk and White, and N.Y. Times Style Book.
              I may not be a Shakespeare, Ernest Hemingway, F. Scott Fitzgerald or Mark Twain, but my mother WAS an English teacher. Punctuation counts. Need I say more?
              And not for nuthin’, but you have to learn the rules before being permitted to break them. Ha. Furthermore, my dear Watson, I don’t like
              all-CAPS any more than you do. Ha, ha.
              I still do not like that second sentence in Neff’s comment. It bugs me Big Time.

          2. UltravioletAdmin

            Sigh, so I’m not a CDA. But…

            [Ed. Note: Balance of comment deleted as totally off topic.]

        2. John Barleycorn

          High probability? I figure the general population odds to be 50/50. If not they ought to be. But I really have no clue.

          Depends on your client I guess?

          Most people don’t do crime? Perhaps, perhaps not….We talking felonious crime or misdemeanor crime?

          If all or most of your friends are the type that wouldn’t enjoy commiting the occasional misdemeanor and perhaps even the rare felony just out of principle you should consider the benifits of expanding your social network.

          Keep in mind that some cops enjoy arresting folks for contempt of cop (disorderly conduct) which is becoming increasingly fashionable these days just because they can especially if your personality is not sufficiently docile or “resecptful”.

          Used to be you had to break some shit, be too drunk to navigate the sidewalk, and or take a swing at a cop that missed, or at least slam your fists on the cop car to get a disorderly. Not anymore-not-by-a-long-shot! In fact if you swing on a cop these days and you don’t end up dead you are going to be contemplating a felony charge.

          Cops also arrest plenty of completely innocent folks whom happen to be in the wrong place at the wrong time. Especially if you frequent certain gatherings and or enjoy strolling the avenues and streets of certain neighborhoods and don’t enjoy cops inquires, lectures, and orders.

          Most of the time in these situational situations or when they arrest someone for contempt of cop they know that the “arrested one” won’t do time (if you don’t count overnight etc), if they have competent representation.

          But they do know the “arrested one” will have to pay for the ride.

          So yeah, assume the absolute worst until your know better. And if your CDL isn’t sending you a copy of all his upcoming motions and procedural moves for you to review and discuss the pros and cons of before they are actually made, get yourself another lawyer and fire the prick you hired.

          Fuck the fucking fuckers and you won’t get fucked.

          Lawyers and all guilds for that matter have been slacking with cleaning their own internal houses for some time. Piss poor example of freedom, competence, and hard work really when guilds don’t take the hammer to those within the guild fucking off or up. Perhaps, the crane operators guild might be the modern exception with linesman running a close second. (BTW crane operators are more “criminally” inclined than linesmen even though they drink less.)

          Everyone must be afraid of being sued or something. Go figure?

          Anyway next time you see one of your peers pull a donk move or purposely deceive their client call them out on it. AND, don’t forget to tell the cop that he may be technically right but he is still an asshole for giving you some bullshit revenue ticket. The CDL’s need the work.

  3. Wheeze the People™

    From a client’s vantage point, I have come to this conclusion: Lawyers play a game of chess with YOUR life — win or lose, whether or not they even played a decent game, they go on to play another game. You live with the checkmate and they don’t. And that is a tad bit unnerving, don’tcha know?? . . .

    1. SHG Post author

      Did you figure that out all on your own?

      P.S. Cool use of caps in “YOUR,” because it would have been an entirely different message if you went upper and lower case.

      1. Wheeze the People™

        Well, the CAPS were gratuitous, I’ll grant you that. However, I will say that in my experience, many clients, if not most, believe THEIR attorney will play at least a decent, and wishfully the best, game possible. And many clients, if not most, eventually learn otherwise. Hence the fortune cookie-like memorialization of this concept for, you know, the little people . . .

    2. Charles B. Frye

      I have counseled many a potential client that I am aware of no law that requires a person to consult or retain a lawyer. It may be an unrealistic point, but no more so than a disappointed client’s rant at an unwelcome result. (I do understand transference, as I have been mightily angry with a number of doctors over the years, my emotion not rationally connected to their actions or responsibility for the outcome. But, hey, they were right there, ready target.)

      1. SHG Post author

        Because I’m sure Wheeze is too modest to say, he’s one of those incredibly rare outliers who tried his own case (not criminal, but still) and kicked a lawyer’s nasty butt across the room. He may play coy on the interwebz, but he’s a killer in real life.

        1. John Barleycorn

          Speaking of Wheeze…when is he going to send in a photo of himself modeling the Spence Coat, hat, boots and one of those vests he adopted?

          I am thinking atop some judges podium or in the courthouse lockup would make for a good back drop.

          I am going to have to contact the NYC Neo-Feminists Freelance Squad here in a few weeks and set some things in motion if Wheeze can’t loose enough gut to fit in that there Spence Coat.

            1. Wheeze the People™

              Now, in my defense, first understand the pic is coming soon. I have a hearing on Aug 20th and will be at the courthouse. Many pics will be taken — all out in the wild!! I figured that a pic taken just for the sake of a pic, outside of the regalia’s native habitat would be, at a minimum, sacrilegious and, probably, high treason . . .

              Secondly, although Wheeze used to have a beautiful swimmer’s body type, much like Jesus, said body fell into disrepair or, more exactly, Wheeze’s mouth fell into too much cake and ice cream and the like. Thus, the Wheeze of May 1st, 2014 resembled something that one might spy at the Macy’s parade. Though as luck would have it, I began dieting like a banshee and have since seen spectacular results to date. But let’s not kid ourselves, it’s quite a ways from the Big & Tall store sizes to the Spence jacket, amirite?? The bottom line is that by Aug 20th, the Spence jacket should fit me somewhat passingly and not like a sausage casing . . .

              And finally, as a consolation prize, I have already ordered a mannequin, specifically the Metallic Gold Male Mannequin with Egg Head, to model the Spence jacket and cobra boots on permanent display in my living room. Is that cool or what?? . . .

              With the indulgence of the Simple Justice judge, jury, and executioner, this be the mannequin:

              Good Day!!

            2. SHG Post author

              Secondly, although Wheeze used to have a beautiful swimmer’s body type, much like Jesus, said body fell into disrepair or, more exactly, Wheeze’s mouth fell into too much cake and ice cream and the like.

              So sad. Glad that never happened to me.

            3. John Barleycorn

              Excellent, excellent, excellent…

              Hope all goes according to plan.

              FYI, it is possible to distill the left over cake (donuts work better but cake will do).

              Drying technique is critical if you want to save up the left over baked goods and distill batches by the case instead of the jug.

              Best of luck and I look forward to the results of the modeling shenanigans and a full report on the Powers of The Spence Coat when fully deployed.

  4. Marc R

    Assuming competent means “having the necessary ability, knowledge, or skill to do something successfully,” other attorneys meet that criteria. It’s laziness that’s the culprit. How many times do you have opposing counsel blow through deadlines without a call for an extension, with judges who never enforce the rules? Forget about the client for a minute…as a point of pride don’t they want to win? It boggles my mind how many attorneys don’t know their clients’ cases cold. If you can’t walk into the courtroom and speak uninterrupted for 30 minutes on the facts of the case and the salient case law then stop taking new cases.

    1. SHG Post author

      Yes, some lawyers are, in fact, competent. Yes, some lawyers are, in fact, lazy. No, your comment has nothing whatsoever to do with this post.

  5. Thomas R. Griffith

    Sir, while some yougins may assume that Mr. Herrmann suffers from ‘OFS’ – (Old Fart Syndrome) and all of the ills that come with it, his attitude towards the incompetent professional is and should be considered as a worthy teaching moment. His calling of Bullshit! in addition to your many calls, should wake up the sleep walkers and their enablers.

    Having a PIF receipt for my personal experience with a bi-polar lawyer that: looked, acted & presented himself as a qualified CDL on the front end, only to shed his fake CDL attire in the telephone booth aka: Holding Cell, revealing his Divorce & Estate Hats, allows me to appreciate his call. Had he kept going with calling for Generalists to be banned from: consulting with, & taking criminal cases in which one isn’t Board Certified, he’d have been on to something.

    *Short of placing signs at the entrances of all criminal court rooms, declaring that you must be this tall to play the game, (All Attorneys must register with the Clerk of Court ‘prior’ to filing any Motions & Ready for Trial notices. Failing to provide Board Certs. disqualifies one from participating in criminal procedures. PleaFense must use rear entrance. See RULES Hand-Book.) , the consumer is screwed. Especially the captive customers that place 100% faith in the For Hire system to (defend) do the right thing, due to witnessing the Appointed selling out in mass). As for the profession as a whole, it needs to be shaken & stirred & often to: avoid or, prevent, the unqualified / imposters from settling.

    Now, if I just had ample funding for my latest line of Defense Scents – “Curmudgeon in a Bottle” (kinda like Deep-Woods Off with a Disclaimer you have to download) I’d have enough dough to fund the Curmudgeon On-Line Law School and crown someone Professor Curmudgeon, in order to reach & teach the masses about an epidemic – “Slackoisie 101” and its side effects. Where: Teachers, Faculty & Students, must pass entrance exams requiring submitting of Essays related to the following link. As it is, I’m only able to refer folks to the links and hope they read and share them. Thanks.

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