Re: Skill Doesn't Matter (Much)

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good enough, generally, really is good enough, and brilliant isn't, in terms of results, much better

this is the motto of me in 5 years...


Posted by: simulated annealing | Link to this comment | 02- 6-14 6:17 AM
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I hope Dr. Oops would write a different post should she take on the topic of skill.


Posted by: Moby Hick | Link to this comment | 02- 6-14 6:19 AM
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To be explicit, I think that a system of justice is better the less of a role that the skill of the advocate plays.


Posted by: Moby Hick | Link to this comment | 02- 6-14 6:53 AM
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Not to speak for her, but probably -- I've certainly heard her talk about the difference between good and bad surgeons in terms of manual skill.


Posted by: LizardBreath | Link to this comment | 02- 6-14 6:54 AM
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Which statement is more likely to be true, based on the facts presented:

(a) Skill doesn't count for much in legal work.

(b) Lizardbreath dramatically underrates her own skill.

I'm leaning towards (b).


Posted by: urple | Link to this comment | 02- 6-14 6:54 AM
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I think that a system of justice is better the less of a role that the skill of the advocate plays.

This is no doubt true, but I don't think it says anything good about our system of justice.


Posted by: urple | Link to this comment | 02- 6-14 6:56 AM
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Those statements are not necessarily mutually exclusive.


Posted by: Moby Hick | Link to this comment | 02- 6-14 6:56 AM
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6: I was thinking of the "an okay lawyer with a good case beats a genius with a bad case" from the OP. Obviously, if something other than the case is making the difference (e.g. social status or race of the litigants), then that is worse than relying on the skill of the advocate.


Posted by: Moby Hick | Link to this comment | 02- 6-14 6:58 AM
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I had to type up the courtroom rules for a certain court when I was a kid. The two things I remember were that, unlike every TV show I ever saw, the lawyers were supposed to stay seated when questioning witnesses and that bolo ties were forbidden.


Posted by: Moby Hick | Link to this comment | 02- 6-14 7:02 AM
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I was wondering if I was going to have to bat that one down. No, the particular story I'm telling in this post is one where I was the clown (and maybe I was doing better than I thought, but I really don't think so).

But I litigate against a bunch of real losers -- I have a lot of pro se litigants, and a lot of opposing counsel from the very bottom ranks of the profession. People who can't number the paragraphs of a complaint straight, so your answer looks like:

11: Denies the allegations of the first paragraph of the Complaint numbered 11.

12: Denies knowledge or information sufficient to form a belief of the truth of the allegations of the second paragraph of the Complaint numbered 11.

13: There is no paragraph of the Complaint numbered either 12 or 13...

And even nitwits like that can be really dangerous if they happen to be representing someone with a good claim. The brief I'm working on now is a motion to dismiss against a seriously primitively drafted complaint, and opposing counsel has done some really comically boneheaded things in terms of service that I won't describe properly, even though they're really funny, because they'd be too identifiable. Still, nine out ten says I'm not going to get the whole thing dismissed. I'm four times the lawyer opposing counsel is, but you don't need to be much of a lawyer to adequately plead a cause of action.


Posted by: LizardBreath | Link to this comment | 02- 6-14 7:04 AM
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But is this true for high-level business law? Since I got involved in a field that had me looking at more lawsuits, I've been surprised at how baroque and abstract commercial law arguments can get. International tax is unbelievable, but other fields too.


Posted by: PGD | Link to this comment | 02- 6-14 7:04 AM
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Stop trying to ruin The Good Wife. Every courtroom encounter involves a judge with bizarre quirks, a series of dramatic reversals, Kalinda swooping in with game-changing evidence and Alicia pulling out some kind of magical argument at the right moment, and you can't convince me otherwise.


Posted by: essear | Link to this comment | 02- 6-14 7:05 AM
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8: Right, and I am disputing "an okay lawyer with a good case beats a genius with a bad case" from the OP. Although, I think "genius" is really the wrong word here... I would agree that "genius" usually has relatively little to do with legal skill. Replace "genius" with "highly skilled".

I would probably accept the statement "an okay lawyer with a good case beats a highly skilled lawyer with a bad case" if LB is defining "an okay lawyer" as the top 20% of lawyers. (Which is probably about the right cutoff for what most people should consider "okay"--there are huge numbers of appallingly bad lawyers.)


Posted by: urple | Link to this comment | 02- 6-14 7:05 AM
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Does "arbitration" in American mean "adversarial court hearing"? Because in English it means meetings in chambers specifically to avoid that. Oh well, another one for the notebook.


Posted by: chris y | Link to this comment | 02- 6-14 7:08 AM
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10: this is actually what you should want if justice is prevailing though -- the actually innocent prisoner who files a semi-literate brief in crayon should get freed.


Posted by: PGD | Link to this comment | 02- 6-14 7:08 AM
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11: It's harder to tell, because you less often have a serious skill mismatch to work with -- high level litigation has expensive big firms on both sides. But back when I was doing that kind of thing, cases still mostly looked as if they came out the way you'd expect from who actually did have the better case, with a substantial random factor but not one obviously attributable to lawyering skill.


Posted by: LizardBreath | Link to this comment | 02- 6-14 7:08 AM
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14: The meaning of arbitration is arbitrary.


Posted by: Moby Hick | Link to this comment | 02- 6-14 7:09 AM
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14: Arbitration isn't before a court, and it's more streamlined and less formal than a trial, but it still generally means an adversarial hearing with evidence and witnesses before a finder of fact, just an arbitrator instead of a judge or jury.

What you do to avoid litigation, we'd call mediation here -- the parties meet with a neutral to talk them through whether they can come to some kind of agreement.


Posted by: LizardBreath | Link to this comment | 02- 6-14 7:12 AM
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Are flaming sledgehammers usually important?


Posted by: Sifu Tweety | Link to this comment | 02- 6-14 7:12 AM
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Flaming sledgehammers are always important in or out of the courtroom.


Posted by: LizardBreath | Link to this comment | 02- 6-14 7:14 AM
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Eh, I don't litigate, so what do I know. Maybe in coutrooms (without juries) skill doesn't really matter much. I doubt this extends to the Supreme Court, and probably not to any appellate level. And I'm under the impression that in courtrooms with juries, skill matters a great deal, although again, especially in that context, "skill" doesn't mean "genius" and it certainly doesn't mean "good at drafting complaints". And I know that in giving almost any variety of general corporate counsel, actually knowing what you're doing matters very much. (And a lot of lawyers don't really know what they're doing and don't give good advice.)

So, maybe it's possible that LB is in a corner of the legal profession where skill really doesn't much matter. But that's definitely not true of legal work as a whole.


Posted by: urple | Link to this comment | 02- 6-14 7:15 AM
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Supreme Court cases are sort of a different issue completely, because mostly that's not lawyering -- the judges aren't trying to render a correct ruling based on pre-existing law where there's a right answer, they're explicitly making shit up. So being brilliantly persuasive is going to be much more of an issue there; you're largely talking policy, not law.


Posted by: LizardBreath | Link to this comment | 02- 6-14 7:23 AM
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But I will say that this is probably more of a litigation thing than a general corporate counsel thing, which mostly doesn't have that gladiatorial, who's the better lawyer, aspect to it.


Posted by: LizardBreath | Link to this comment | 02- 6-14 7:27 AM
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Even in litigation, isn't there quite a bit of skill that goes toward determining what gets allowed in making the "case". Discovery and all that.


Posted by: Moby Hick | Link to this comment | 02- 6-14 7:32 AM
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I can remember when my dad did lots of litigation. He didn't practice oratory or writing (that I know of). He taped sections of the rules of evidence to the kitchen cabinets (on the inside) and read them while cooking breakfast every morning.


Posted by: Moby Hick | Link to this comment | 02- 6-14 7:35 AM
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Questioning witnesses isn't a critical skill, but there is skill in lawyering. In complex litigation, the skill is in figuring out which cases to bring and whether and on what terms to settle. For Defendants, deciding which to settle and which to litigate. Getting these judgments right is a rare skill and very highly compensated. It's not an accident that the senior partner decides which case to bring, the junior partner or senior associate takes the depositions and goes to trial if necessary, and the first year associate writes the briefs.

(in personal injury work, the skill is in creating the right commercials to bring the best cases to the door)


Posted by: unimaginative | Link to this comment | 02- 6-14 7:38 AM
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"Brilliant intellectual powers are not essential; too much imagination, too much wit, too great cleverness, too facile fluency, if not leavened by a sound sense of proportion, are quite as likely to impede success as to promote it. The best clients are apt to be afraid of those qualities."


Posted by: OPINIONATED PAUL D. CRAVATH | Link to this comment | 02- 6-14 7:38 AM
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24: Oh, certainly. I don't really mean to say that skill isn't important at all -- there are plenty of things that if you screw up, you can ruin what might have been a workable case. But even on that sort of thing, good enough remains good enough: a good enough lawyer with a good case, there's not much that a better lawyer is going to be able to do about it. And depending on the circumstances, the bar for good enough isn't necessarily terribly high.


Posted by: LizardBreath | Link to this comment | 02- 6-14 7:39 AM
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It's kind of depressing, sometimes, thinking how much effort and skill is mostly wasted

This is the opposite of depressing to me, if it means that good cases are rewarded by the justice system more than skilled lawyers. But I can see why a skilled lawyer wouldn't t agree.


Posted by: Ginger Yellow | Link to this comment | 02- 6-14 7:47 AM
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I think legal skill is almost always ultimately irrelevant in The Good Wife. Clever legal arguments keep the case (and episode) going for a while, but then the case is resolved when the private investigator through genius sleuthing figures out what actually happened. Kalinda and Robyn both clearly should be paid much more than the attorneys.


Posted by: peep | Link to this comment | 02- 6-14 7:49 AM
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I find 25 highly endearing. It reminds me of when all my friends and I were studying for our qualifying exams.


Posted by: redfoxtailshrub | Link to this comment | 02- 6-14 7:49 AM
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Shorter 27: Murder your darling litigators.


Posted by: JP Stormcrow | Link to this comment | 02- 6-14 7:50 AM
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I've kept as far from litigation as possible, but I will say that on the other side of the world I have seen very good negotiators and draftsmen (and -women) and the ugly consequences of the work of very poor ones (I am thinking of a particular distressed leveraged lease transaction), and the gulf seemed quite broad indeed.

In one notable example, the man I still call "the Nice Partner" guided all the lawyers and business people on a particular matter into various conference rooms during the week before Christmas and, without ever showing his intent or any effort (in front of them; he and I were sweating like coal miners), obtained a three-sided settlement that was worth about half a billion dollars. (This was also the matter in which I found a case reference that enabled him to quote Justice Holmes,* so there's a sort of litigation connection.)

* Whom lawyers still respect. The name made a visible impression on the faces around the table.


Posted by: Flippanter | Link to this comment | 02- 6-14 7:51 AM
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Was "Holmes" impressed on each face separately or was it one letter per face?


Posted by: Moby Hick | Link to this comment | 02- 6-14 8:01 AM
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* Whom lawyers still respect.

I'm one of the people who is happy when a new scientific paper cites "Metschnikoff, 1890" or something in the introduction, but some people don't like it.


Posted by: Cryptic ned | Link to this comment | 02- 6-14 8:03 AM
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Do articles that old raise the impact factor of the journal?


Posted by: Moby Hick | Link to this comment | 02- 6-14 8:05 AM
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I don't think Annales de l'Institut Pasteur has an impact factor.


Posted by: Cryptic ned | Link to this comment | 02- 6-14 8:07 AM
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I'll have been a lawyer 29 years this September. I have done a lot of low-level litigation against bozos. LB's assessment, self and otherwise seems completely accurate to me. Of course she'd very quickly get better with practice at the kind of hearing she's describing, that's not the point.

Now, as a document reviewer, I work with a much higher class of lawyer than I've spent my career around, but face-palm moments are incredibly common even here.


Posted by: Idp | Link to this comment | 02- 6-14 8:10 AM
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It's 2.943.


Posted by: Moby Hick | Link to this comment | 02- 6-14 8:10 AM
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39 to 37.


Posted by: Moby Hick | Link to this comment | 02- 6-14 8:11 AM
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They switched the name to "Research in Microbiology."


Posted by: Moby Hick | Link to this comment | 02- 6-14 8:11 AM
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||

OT bleg -- job related

I got a verbal offer for a state job which I thought was low. The HR person was going off of my previous salary with no credit for years of equivalent salary. Total bottom. Still a raise.

I just got an e-mail asking me to interview for another state job which would pay a bit more. It seems to take a couple of months for the state to hire.

The manager agreed that my years of experience should count but said that it is up to HR. she did send an e-mail to HR.

I didn't get the greatest vibe from the woman I talked to on the phone at the He/alth P/ol/icy Comm/ission, and the office is small. That is an agency I would like to work for, but her office isn't my top choice. It's kind of a customer service job helping people with questions about health insurance appeals and waivers as well as paralegal type preparation of appeal packages. I think she might be interviewing me, because she has to interview a certain number of candidates. She had to repost after the first posting, because she didn't get enough applicants.

The other one is in my current field but a step up. I can have it now. If they'll give me an increase, and I'm willing to take it, should I go to the interview tomorrow--just to practice?

I sent an e-mail saying I would but I thought about declining yesterday evening when I got the e-mail.

|>


Posted by: Bostoniangirl | Link to this comment | 02- 6-14 8:12 AM
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Keep going to interviews until you get a written job offer.


Posted by: Moby Hick | Link to this comment | 02- 6-14 8:26 AM
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I don't really know, as my experience is limited, but I think a lot of the work that big firms do to please clients isn't outcome determinative. I am also less afraid of being called a clown than most lawyers, and certainly less afraid of it than LB, so I would guess that she was adequately prepared for her examination.


Posted by: text | Link to this comment | 02- 6-14 8:28 AM
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I'm interested in the jobs where what LB says clearly isn't true, where more skill gets you better results, with diminishing returns way off in the distance somewhere. Artist, teacher, cop?--jobs where the outcome is open-ended, as opposed to determined from a (roughly) fixed set of possibilities.


Posted by: ogged | Link to this comment | 02- 6-14 8:31 AM
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Bomb disposal?


Posted by: Moby Hick | Link to this comment | 02- 6-14 8:33 AM
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And probably bomb manufacture.


Posted by: Moby Hick | Link to this comment | 02- 6-14 8:33 AM
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Bomb transport?


Posted by: Sifu Tweety | Link to this comment | 02- 6-14 8:38 AM
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I also think that a great part of what a client pays a competent lawyer for is the ability not to take a weak case to trial, even if that means pressuring the client to settle on terms that the client would not accept from less experienced counsel. Without some sort of dazzling reputation a client might not trust an attorney to tell a good case from a bad one. And some lawyers probably settle cases out of fear or laziness which really should go to trial. A lawyer without much experience, who is afraid of looking like a clown, might settle a case that really should not settle without complete capitulation. And maybe spending lots of time poring over mundane discovery motions is a good indicator of that sort of judgment; I don't really know.


Posted by: text | Link to this comment | 02- 6-14 8:38 AM
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I don't know how this applies to juries, who may be more susceptible to wizardly advocacy than judges and arbitrators.

The OJ Simpson case seems to me to suggest that juries are quite susceptible to legal pyrotechnics.


Posted by: togolosh | Link to this comment | 02- 6-14 8:45 AM
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I think that LB's claim is mostly right, though there's kind of a sliding scale (that is, the better your claim, the less your litigator's skill matters).

But probably the most important thing that a skilled litigation lawyer does is coming up with a claim, or a defense, or a better argument in support of a claim or defense. Once youve come up with a claim, defense, or basic argument, the specifics are less important, but if you fail to come up with it at all you're in trouble. In many routine cases thats not an issue, since the basic claims are obvious, as are the basic defenses, and there's nothing else to do, but many many mediocre lawyers miss good claims, arguments, or defenses all the time, and that can be dispositive. In the most recent trial I did, for example, we won easily because we had obviously the better case, and our trial skill per se probably didn't matter that much. But if the other side had pled a slightly different but better theory, they would have won easily (in a case with many millions of dollars at stake).


Posted by: Robert Halford | Link to this comment | 02- 6-14 8:49 AM
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At the really good law schools, they teach you that it is a bad idea to try to get a glove on the hand of somebody who has every incentive in the world not to get that glove on.


Posted by: Moby Hick | Link to this comment | 02- 6-14 8:50 AM
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In many routine cases thats not an issue, since the basic claims are obvious, as are the basic defenses, and there's nothing else to do, but many many mediocre lawyers miss good claims, arguments, or defenses all the time, and that can be dispositive.

This is true. I have vivid memories of drafting a motion to dismiss against a complaint with five or so causes of action trying to get them all dismissed without calling attention to the sixth thing that they should have sued us for and that we wouldn't have been able to make go away.


Posted by: LizardBreath | Link to this comment | 02- 6-14 8:56 AM
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Despite our many differences, I suspect that Robert Halford is also not afraid of looking like a clown. In a different universe perhaps we would have teamed up and started our own clown law firm.


Posted by: text | Link to this comment | 02- 6-14 8:56 AM
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I'm interested in the jobs where what LB says clearly isn't true, where more skill gets you better results, with diminishing returns way off in the distance somewhere.

I was thinking that this is (another) reason why techno-libertarians can be annoying in online discussions about work an employment. I believe that there are a large number of jobs in which doing "good enough" is what counts, but in programming differences in skill are constantly visible*. Even in my case where 80% of what I work on are problems that any competent programmer should be able to solve, people are not going to solve it the same way and there will be different trade-offs to different approaches (ease of maintenance, comprehensibility of code, generalizability, etc . . .).

I also feel like part of what makes programming a good fit for my personality is that I enjoy coming back to similar problems over and over again and figuring out ways to make small improvements in my previous solution. This isn't the only way to approach programming, of course, and I'm not sure it's a sign of sanity, but it does lead to an over-emphasis on small changes.

That said, I feel like between 25 and 30 I got much better at programming, and after 30 I've gotten slightly better at programming and much better at decision making in a way that parallels what the lawyers are saying -- deciding what problems to tackle, and which ones should be avoided**, and getting better at explaining those choices to a client. In fact, I often feel like the "listening and talking to people" part of my job is the most important work I do, even though it's a minority of my time.

* Even if there aren't differences in outcomes co-workers will still notice differences in styles. I'm sure that's true of lawyers as well.

** Though I am conscious of the Arthur C Clarke line, "When a distinguished but elderly scientist states that something is possible, he is almost certainly right. When he states that something is impossible, he is very probably wrong."


Posted by: NickS | Link to this comment | 02- 6-14 9:01 AM
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42, 43: What Moby said. States hire slowly, and hiring goes off the rails all the time. Keep as many alternatives going as possible.


Posted by: LizardBreath | Link to this comment | 02- 6-14 9:04 AM
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I worry periodically about the issue raised in the OP. If a strong (or strongish) form of LB's hypothesis is correct it means that I'm basically selling snake oil for a living -- our rates are reasonable compared to most big New York or DC firms, and our hours tend to be more efficient because we're less leveraged, but a client could certainly get done almost anything we do for a smaller bill at lower quality.

I don't know -- sometimes I write a brief and it really does feel like I've successfully framed or reframed an issue that could have been hard for us. Other times it's more by the numbers, recognizing that (as discussed in 51 and 53) it's really important to figure out the right numbers.

But, of course, "[i]t is difficult to get a man to understand something, when his salary depends upon his not understanding it."


Posted by: widget | Link to this comment | 02- 6-14 9:15 AM
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57: I think the big firms are definitely selling snake oil, largely. Selling "good enough to not make errors that determine the outcome of the case", on the other hand, isn't snake oil.


Posted by: LizardBreath | Link to this comment | 02- 6-14 9:18 AM
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"good enough to not make errors that determine the outcome of the case"

This is not good marketing.


Posted by: urple | Link to this comment | 02- 6-14 9:21 AM
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Always go to a small firm. You can get artisanal, hand-crafted snake oil.


Posted by: Moby Hick | Link to this comment | 02- 6-14 9:21 AM
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I like the quote at the end of 55.


Posted by: heebie-geebie | Link to this comment | 02- 6-14 9:25 AM
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Small firms are like local unaffiliated restaurants: quality can range from excellent to terrible, mostly mediocre. I spent a good chunk of my career writing and editing practice guides, and I know how much depends on following checklists and going through reasonable steps. Anybody should be able to do it, but incredible numbers don't.


Posted by: Idp | Link to this comment | 02- 6-14 9:28 AM
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Small firms are like local unaffiliated restaurants: quality can range from excellent to terrible, mostly mediocre.

I suppose this implies that large firms are like large chain restaurants: quality can range from excellent to terrible, mostly mediocre.


Posted by: urple | Link to this comment | 02- 6-14 9:33 AM
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. . . how much depends on following checklists and going through reasonable steps. Anybody should be able to do it, but incredible numbers don't.

Darn it, there should be a manifesto.


Posted by: NickS | Link to this comment | 02- 6-14 9:35 AM
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I'm interested in the jobs where what LB says clearly isn't true, where more skill gets you better results, with diminishing returns way off in the distance somewhere.

Athlete, for sure.


Posted by: urple | Link to this comment | 02- 6-14 9:44 AM
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Chef. Scientist. General. Entertainer of any stripe. Lawyer doing anything other than litigate routine cases in front of a judge.


Posted by: urple | Link to this comment | 02- 6-14 9:48 AM
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Author.


Posted by: urple | Link to this comment | 02- 6-14 9:49 AM
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Designer.


Posted by: urple | Link to this comment | 02- 6-14 9:49 AM
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Author.

In The Black Swan there's some list of professions in which outcomes are distributed based on a power-law distribution, rather than normal distribution, and author was one of the examples.


Posted by: NickS | Link to this comment | 02- 6-14 9:54 AM
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Lawyer doing anything other than litigate routine cases in front of a judge.

I'd really push back on 'routine' here, at least in litigation (which is the only lawyering I know anything about). What everyone said about about how the real skill is in knowing what cases to bring, and in identifying the high-level claims and defenses is right -- I was sort of mentally separating that from skill, both because I think of it more as judgment rather than skill, and because it's the sort of thing a fairly lousy lawyer can luck their way through on any given case. But once you've got the basic framework of the action in place, 'good enough not to screw up egregiously' beats 'excellent' if that's where the merits of the case take you.


Posted by: LizardBreath | Link to this comment | 02- 6-14 9:55 AM
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Personal waxer.


Posted by: Moby Hick | Link to this comment | 02- 6-14 9:59 AM
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I don't disagree with 70, but I think that just means that the actual courtroom litigation in front of a judge is the routine aspect of the job, which above a certian threshold of competence doesn't demand a lot of skill.


Posted by: urple | Link to this comment | 02- 6-14 9:59 AM
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I'd suspect that lawyerly skill matters more where the outcome isn't a binary win/lose: when doing a deal, there are many points at which you can gain or lose something for your client.


Posted by: ogged | Link to this comment | 02- 6-14 10:00 AM
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72: This is very much not the impression from inside the profession. I mean, it's what I'm saying, pretty much, but it's not an uncontested truism. People put in an insane amount of money and energy into incremental differences in the 'quality' of the actual litigation.


Posted by: LizardBreath | Link to this comment | 02- 6-14 10:02 AM
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Salesman.


Posted by: urple | Link to this comment | 02- 6-14 10:06 AM
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Personal waxing equipment salesman.


Posted by: Moby Hick | Link to this comment | 02- 6-14 10:10 AM
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75: urple, inquiring minds want to know: did you ever go to that behavioral interview?


Posted by: Bostoniangirl | Link to this comment | 02- 6-14 10:12 AM
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Fields which have a high burnout rate or high corruption rate would be a third category: increases skill tracking with negative outcomes.


Posted by: heebie-geebie | Link to this comment | 02- 6-14 10:13 AM
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Snake oil salesman.


Posted by: Eggplant | Link to this comment | 02- 6-14 10:14 AM
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Paralegal-type preparation of appeal packages at the He/alth P/ol/icy Comm/ission.


Posted by: Moby Hick | Link to this comment | 02- 6-14 10:14 AM
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the merits of the case

"The merits of the case" are not objectively identifiable characteristics that attach to a set of facts. As has already been mentioned, correctly identifying and framing the merits of the case is a signficant part of the skill that separates good litigators from bad ones. I think you are essentially using this as your threshold for passably competent, but that just gets back to my 13.2. There are a lot of professionals who have gone to law school, passed their bar exams, and make their livings as working lawyers who do not do it very well, at least not reliably.


Posted by: urple | Link to this comment | 02- 6-14 10:18 AM
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Since, BG has already asked for job search advice, at what point in an interview process should you ask about salary and benefits if it wasn't in the posting and didn't come up in a phone interview, but now there's going to be an in-person interview?


Posted by: fake accent | Link to this comment | 02- 6-14 10:20 AM
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In an alternative universe the biathlon might have been a much longer event. As is I don't really know if it's something that benefits more from inherent genius or old-fashioned sweat and gumption.


Posted by: text | Link to this comment | 02- 6-14 10:23 AM
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77: Yes. It did not go well.


Posted by: urple | Link to this comment | 02- 6-14 10:24 AM
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81: The thing is, though, framing the case on that level is something that you do on a few occasions during the course of the case, working from a fairly small set of options. Spotting the right causes of action or defenses is terribly important, and over the course of a career is going to make a huge difference in outcomes. But in any given case, there's nothing unlikely at all about an only marginally competent attorney identifying the salient claims or defenses just as successfully as a much much better attorney.


Posted by: LizardBreath | Link to this comment | 02- 6-14 10:24 AM
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Athlete, for sure.
Compare skill levels and outcomes for Spudd Webb and Yao Ming.

Entertainer
Miley Cyrus and Rush Limbaugh are both millionaires.

Scientist
http://en.wikipedia.org/wiki/Thomas_Starzl
Rosalind Franklin.

Even purely competitive endeavors are difficult to assess-- trading and gambling, maybe, though a pool of equally skilled agents will have a highly variable outcome distribution there as well. Chess, I guess, but that's honestly so unlike most human endeavors that I don't think it's worthwhile. Some field where failure in the face of uniformly difficult circumstances is severely penalized maybe--
http://en.wikipedia.org/wiki/Wall_of_death_(carnival_sideshow)


Posted by: lw | Link to this comment | 02- 6-14 10:29 AM
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But in any given case, there's nothing unlikely at all about an only marginally competent attorney identifying the salient claims or defenses just as successfully as a much much better attorney.

No, of course not. So what? You're making it sound as if it's genuinely surprising to you that a good lawyer with bad facts can't beat a bad lawyer with good facts every single time. They can sometimes. And more importantly, they can better advise a client when they're unlikely to win (and how to cut losses) and can (perhaps) better negotiate an advantageous settlement.


Posted by: urple | Link to this comment | 02- 6-14 10:34 AM
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My point is that it's not tennis, where if there's any significant skill disparity, the better player wins. In litigation, the facts and governing law very strongly dominate any skill disparity, assuming at least moderate competence on the part of the less skilled advocate. And yes, I think this is surprising if you think of how clients select lawyers.


Posted by: LizardBreath | Link to this comment | 02- 6-14 10:39 AM
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Compare skill levels and outcomes for Spudd Webb and Yao Ming.

I don't even know where I'd start. On the one hand, a solid point guard from the 1980s. On the other hand, an injury-prone but solid center from the present era. They have (had) vastly different skill sets suited to their different positions, so there's little basis for comparison, aside from that they both play (played) basketball at a high level. Is this another clever trick regarding the misuse of compare, rather than contrast? There's not an adequate basis for contrasting them either, as their different skill sets are (were) suited to their different positions.

I suppose if you were trying to make a point about height in basketball, you would compare and contrast Spudd Webb with other NBA point guards who were much taller than him. And you would find that some of those point guards were more effective, and that many were not.


Posted by: text | Link to this comment | 02- 6-14 10:43 AM
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Question, LB: isn't your perspective a relatively advantaged one as lawyers go? In your law career IIUC you've been with biglaw, which I imagine confers status advantages, and now with government, which confers a level of deference. I wonder to what extent, say, the average public defender would agree with you that it's mostly the facts.


Posted by: Minivet | Link to this comment | 02- 6-14 10:45 AM
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86: Hold on. I'm obviously not claiming any of those professions is a meritocracy. I'm claiming that in any of those professions, more skill gets you better results. Replacing a less skilled athlete with a more skilled athlete will make your team better. Think "boxer" if the team concept makes the analysis too tricky. This is true for athletes, whereas replacing a less skilled worker on an assembly line with a more skilled worker may not produce any better results (or any different results at all), assuming the less skilled worker was "good enough". Get much past the threshold of "good enough", and it becomes unclear what a "more skilled assembly line worker" even means--much past the threshold of "good enough", it may be an undefinable term.

(Of course, re Spudd Webb and Yao Ming, "skill" for an athlete has to encompass physical attributes like size and speed and strength.)

Miley Cyrus and Rush Limbaugh are both very good entertainers. Lots of people are entertained by them. More generally, though, my point was with any comedian, actor, singer, dancer, etc., "good enough" isn't a meaningful term. You can always substitute someone "better", and the difference in quality is perceptible (even though "better" is obviously difficult to define for aesthetic attributes).


Posted by: urple | Link to this comment | 02- 6-14 10:47 AM
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And yes, I think this is surprising if you think of how clients select lawyers.

I don't think it's surprising. How do you think clients select lawyers?


Posted by: urple | Link to this comment | 02- 6-14 10:48 AM
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Further to 86: I'm also not sure how Miley Cyrus' millions can be marshaled into a coherent argument about the importance of skill in being a successful entertainer. Maybe you could spell that out. She's paid to sing, for which she has talent.

Limbaugh is essentially paid to bloviate and I wouldn't call him bad at it.


Posted by: text | Link to this comment | 02- 6-14 10:53 AM
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92: Clients that have the money are generally willing to pay an absolute shitload for marginal differences in pedigree and resources in their attorneys.


Posted by: LizardBreath | Link to this comment | 02- 6-14 10:54 AM
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more skill gets you better results

To be even more clear, "better results" here doesn't mean "you are more successful", much less "you make more money". It means "you do your job better".


Posted by: urple | Link to this comment | 02- 6-14 10:56 AM
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Since this seems to be the job search thread, here's my situation:

I was recently reduced from the role of manager to sole contributor and now no longer report directly to the head of my department. I've been assured that is not performance-related and my latest (received this week) performance review seems to demonstrate that this is so. I suspect that the decision was in part made to groom an up-and-coming MBA (my new boss) for further advancement and in part to take a load off my former boss.

If I want to return to a managerial role in the future, I need to find another job ASAP, right?

I'm extraordinarily pissed off about the situation, especially since a change in job will require a move, likely without relo assistance. That said, a move might result in salary increase of 10-20%, so a self-funded relo would pay for itself fairly quickly (under a year).

Advice, Mineshaft?


Posted by: Richard Nixon | Link to this comment | 02- 6-14 11:01 AM
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Hire better burglars.


Posted by: Moby Hick | Link to this comment | 02- 6-14 11:05 AM
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My experience with sports doesn't go much past the high school level, wherein it was pretty easy to determine, at least on a given team, which player would help the team most. We all went head to head in practice. A player identical to me, but also much bigger, would probably have been a better defensive end, but that would easily have been proven: he would have beaten me in practice.

I suppose the analogy fails because in lawyering, if it were possible to line two lawyers up in some sort of metal contraption and see who crushed the other one up against it, that still wouldn't necessarily tell you that you should hire that guy for your case if he also charged a lot more. Because, you know, the merits of the case.


Posted by: text | Link to this comment | 02- 6-14 11:06 AM
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What do you call two lawyers lined up in some sort of metal contraption until one crushes the other?

A good start.


Posted by: LizardBreath | Link to this comment | 02- 6-14 11:07 AM
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IMO the real snake oil that (large defense side) law firms sell isn't the importance of marginal differences in quality (to clients, anyway, the sales pitch isn't "our bluebooking is impeccable" it's "you can rely on our judgment and experience to be excellent in an important matter, and better than most out there" and that's a really valuable service people should be willing to pay a lot for when something important is at stake).

The snake oil is the need for leverage and to have lots of OK lawyers, as opposed to one or two really good ones, on any given case.


Posted by: Robert Halford | Link to this comment | 02- 6-14 11:08 AM
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86.3, I was going to push back on that, too, but then I thought better of it. I think it really, really depends on how you define success. For example, professors with failing research programs at big R1s are often promoted to administrative positions that pay more, but it's not what I'd call success in science. Having connections and pedigree matters as much as skill, but it's hard for me to think of anyone who's what I'd call a successful scientist/researcher (good publications, well-respected, reasonably ethical as far as anyone knows, good at communicating results, etc) who I think is unskilled (not necessarily "good hands," but good brains). I'm drawing a blank. It's not in any way a meritocracy, but to be good and stay good, I think you need to be skilled. I think it's the staying good that is the key, though.


Posted by: ydnew | Link to this comment | 02- 6-14 11:10 AM
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Compare skill levels and outcomes for Spudd Webb and Yao Ming.

I misread this, honest to god, as Spudd Webb and Yo Yo Ma. First, super racist, Sifu. Second, very difficult comparison to make!


Posted by: Sifu Tweety | Link to this comment | 02- 6-14 11:11 AM
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Rush Limbaugh isn't paid to be an insightful political commentator; he's paid to be a huckster and a radio gasbag, and I think actual, skipping the content of his gasbaggery, he's remarkably good at it. (The swift and merciless failure of his television show suggests that it's not just some sort of first mover advantage.)


Posted by: snarkout | Link to this comment | 02- 6-14 11:23 AM
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If we're going to call litigation marketing "snake oil," I suppose we'll have to challenge the idea that a record of winning cases necessarily indicates any sort of skill whatsoever, aside from prudence in selecting which cases to take, and the ability to make clients settle if they really have shitty cases but for whatever reason are being obstinate.

I suppose that in of itself would be an important skill, but it's not exactly what's being marketed. What's being marketed is the idea that prior cases really were a giant metal contraption in which one lawyer crushed his opponents over and over again.


Posted by: text | Link to this comment | 02- 6-14 11:23 AM
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RN in 96: I think it depends on the field and the employers involved. My current boss (our VP of Engineering) has bounced back and forth between managerial and solo contributor roles throughout his career, and is really good at both. It doesn't seem to have hurt him at all (and is in fact a very strong asset in a small company like us). If you have some contacts in management at potential employers in your field, you might want to run the situation by them and see what their impression might be.


Posted by: Dave W. | Link to this comment | 02- 6-14 11:27 AM
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I wonder what would happen if you put Spudd Webb and Yao Ming in the metal contraption of my fondly remembered adolescence. Of course they wouldn't be playing basketball, they would be playing football -- or more accurately, they would be performing a brutal assessment drill which was used at my rudimentary level -- and I guess the outcome would be determined largely by quickness and leg strength, rather then height. Another important factor would be inherent aggressiveness, which would be hard to guess, just from watching them play their different basketball positions.


Posted by: text | Link to this comment | 02- 6-14 11:41 AM
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10 years in to litigating, with stints as both a client and a clerk, I agree with #88 more than the original post. Three thoughts:

1. Yes, on the whole, law is not tennis. Quality of claims (and defenses) are more important than "skill" of the lawyer in determining the end result. Which is as it should be in any rational justice system.

2. Skill still matters very much in litigation, though, but the definition of skill is very task-specific and generally not what most popular attention (within and outside the profession) focuses on. E.g., skill in managing and exploiting discovery really well is seldom seen and hard to evaluate from the outside, but is often orders of magnitude more important than most anything else, including what's done at trial and what's written in the briefs. In part, this is because it is here that the line between "quality of the claims" and "attorney skill" blur, because what you turn up in discovery creates the quality of the claims. Also, less easily ratable skills like knowing when to settle, getting claims to settle, and maintaining client trust through good communication (crucial to settling) are vastly underrated for their importance vis-a-vis, say, eloquence on your feet at trial.

3. I want to say that the influence of skill has a pretty wide spectrum in different areas of practice, but this is a hard claim to prove, largely because of #2. On one end, I would rank appellate litigation as, perhaps, the area where an attorney's skill (defined as most lawyers and smart outsiders would recognize and describe it) matters most. On the other, there are wide swaths of banal trial-level work (95% of which is outside a courtroom) that allow for complete morons to make money that is ridiculously out of proportion to their talent as lawyers. On this latter end of the spectrum, the skill that determines a successful practice is mostly finding and developing clients, or ginning them up from whole cloth if you're a plaintiffs' class action attorney, say.


Posted by: Llewelyn Moss | Link to this comment | 02- 6-14 11:46 AM
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55 In fact, I often feel like the "listening and talking to people" part of my job is the most important work I do, even though it's a minority of my time.

Whereas I feel like the "listening and talking to people" part of my job is the least important work I do, and it's a majority of my time.


Posted by: essear | Link to this comment | 02- 6-14 11:53 AM
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100.2: The snake oil is the need for leverage and to have lots of OK lawyers, as opposed to one or two really good ones, on any given case.

Right. I hire the Gambino family because there are lot of them and it signals that I have the combination of resources and motivation to hire the Gambinos. Now to stick around in the Gambino family the requirements include competence in mayhem, but much more so internalization and ability to work within the Gambino system. (Although for the Gambinos to become the Gambinos in the first place does take something more than fanatic devotion to the pope that maps somewhat onto an axis you might call "skill.")


Posted by: JP Stormcrow | Link to this comment | 02- 6-14 12:19 PM
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Also worth noting: some of what big firms sell to big clients is job security for in-house counsel. If a big case goes south after the company's general counsel hires Cravath or Skadden or W&C, she gets to say there's nothing more she could have done. If she hired a smaller regional firm, she's more vulnerable. (Of course, if she hires a smaller regional firm and they do a great job, she's a genius who knows how to pick talent and save money; but we're all risk-averse in this profession.)


Posted by: widget | Link to this comment | 02- 6-14 12:35 PM
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"Nobody ever got fired for buying IBM."


Posted by: LizardBreath | Link to this comment | 02- 6-14 12:36 PM
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"Nobody ever got fired for buying IBM."

--Hitler, 1936


Posted by: JP Stormcrow | Link to this comment | 02- 6-14 12:38 PM
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Including that quote would have made my comment higher quality, but would it have made any difference to the outcome of the thread?


Posted by: widget | Link to this comment | 02- 6-14 12:44 PM
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Interestingly, perhaps as a Californian, I'm not totally sure what W&C is in 110. I'm guessing Williams and Connelley but maybe it could be White and Case or maybe even something else.


Posted by: Robert Halford | Link to this comment | 02- 6-14 1:03 PM
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Williams & Connolly, for the discriminating corporate (or ridiculously well-funded individual) client who wants to savor the full-on bare-knuckle litigation experience without sacrificing any of the prestige.


Posted by: widget | Link to this comment | 02- 6-14 1:11 PM
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105: Thanks. I'm in Marketing, which pretty much seems to be an "Up or Out" from a management track.


Posted by: Richard Nixon | Link to this comment | 02- 6-14 1:31 PM
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It's funny, I don't really think of them as a national firm, but that's probably just because I've never had a case involving them.


Posted by: Robert Halford | Link to this comment | 02- 6-14 1:31 PM
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Fair point. I was thinking about them less in terms of size or national reach (though they do have some) and more in terms of "who would my hypothetical GC hire if she wanted there to be no doubt that she'd 'gone to the best.'" Certainly from what I know they aren't as open to the criticism of being heavily leveraged as a lot of the larger firms.


Posted by: widget | Link to this comment | 02- 6-14 1:41 PM
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No, that's absolutely right.


Posted by: Robert Halford | Link to this comment | 02- 6-14 1:47 PM
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We used a big firm exclusively for years - nobody in-house - although part of that was to keep around two specific people who have long memories and as much political and operational as legal savvy in our field.


Posted by: Minivet | Link to this comment | 02- 6-14 2:00 PM
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Speaking of court, oh hey, now that this case is actually in front of a judge mom of gang member car thief is now backtracking on all of her previous statements about him stealing her car. I swear to christ, next time her shithead son steals from her and she calls it in I'm going to drive to her house just to tell her to go fuck herself. God smiled on us a while back and her other son and his buddies rolled a different stolen Honda at high speed, snapping his femur.


Posted by: gswift | Link to this comment | 02- 6-14 2:20 PM
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||

My favoritist blog

Divisions: Theorizations and Repudiations of the Division of Mental and Manual Labor ...that's on-topic, isn't it?

Cultural production, or at least a certain type of cultural production that drove advertising and entertainment, was placed at the top, followed by the production of information and services. Affective labor, especially the care of the young, the elderly, and the infirm, is at the bottom of this hierarchy. It is the lowest paid. Any explanation of this hierarchy has to turn away from the question of technical skill, or away from economic factors entirely, towards the intersections of economy and society.

One of the central theoretical insights of the critique of housework developed by Mariarosa Dalla Costa, Selma James, and Silvia Federici is that labor is devalued to the extent that it is naturalized. If housework or care is seen as natural, as in the figure of the naturally caring mother or housewife, rather than seen as a skill, learned and mastered, then it is devalued. There is even room to suggest that this "naturalization" exceeds gender to include race, and even generation.

Just a thought, if "affective labor," childcare, housework etc, and I don't completely buy this distinction, is undervalued because it is "natural" and ordinary, then why do athletes, pop-stars, actors and CEOs get their millions? Are they considered "unnatural and extraordinary?" Isn't it really a better bet that there were a hundred guys who do PS Hoffman's work (or sonething different but as good) but didn't get his break? Is Lebron James a talent freak, or an extraordinary worker?

The kinds of competition, or competitive situations, that draw PSH or an athlete to a remunerative top, create the narrative that "there can be only one." The 99% losers are just inadequate.

I decided I'm even skipping curling.

|>


Posted by: bob mcmanus | Link to this comment | 02- 6-14 4:37 PM
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I just started a new job that requires me to be in court everyday. I thought examining witnesses would be simple if I know the facts that I need to elicit from each witness.

Nope. It appears that I am incapable of asking a question that complies with the rules of evidence. In the event that I am able to pose a proper question, I wince at how awkward and unnatural it sounds.


Posted by: ALC | Link to this comment | 02- 6-14 4:55 PM
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Surprisingly tricky, isn't it. I hear it gets easier as you do it more.


Posted by: LizardBreath | Link to this comment | 02- 6-14 5:01 PM
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You don't just put your lips together and blow?


Posted by: JP Stormcrow | Link to this comment | 02- 6-14 6:04 PM
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That's how to play the kazoo.


Posted by: Moby Hick | Link to this comment | 02- 6-14 6:29 PM
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I don't believe skill matters in the vast majority of legal matters, once you get beyond bare competence. The facts are what they are (if you can find them out -- and they are usually different from what you thought they were when you started out) and the law usually is pretty much what the law is.

In appellate work, I think it matters even less.


Posted by: CharleyCarp | Link to this comment | 02- 7-14 6:10 AM
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