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Friday, October 05, 2012

Mailvox: defenses of dishonesty

RobertT writes:
So anyone who has ever worked for wages at an hourly wage is inherently dishonest? That makes sense. How else do people get paid, except for their time? That concept is as old as time itself. Service businesses aren't selling a product, they're selling their time. And they generally get a contract before doing anything just to make sure there are no misunderstandings. This is how I work and my clients worship the ground I walk on.  I don't think much of attorneys either as a group, but maybe this is a little bit over the top.
No, there is nothing inherently dishonest about working for wages at an hourly wage.  But there is a fundamental distinction between "“billable hours” and fees charged "based on the time they’ve supposedly put in rather than concrete results" and working for hourly wages.  The distinction is based on the difference between wages, which are paid by an employer who has the power to provide oversight and manage performance, and fees, which are paid by a client who is completely at the mercy of the fee-charger.

Fees of this sort are deceptive because they are based on a fundamental falsehood, which is the labor theory of value.  They are primarily the result of government intervention in the economy, which creates artificial shortages that permit the government-protected fee charger to force the client to purchase the fee charger's time rather than the service he actually wishes to charge.

Fee chargers often resort to a deceptive defense, by claiming that they must charge for their time because they don't know exactly how long it will take to provide the service.  This defense is belied by the fact that products and services in markets permitted to be competitive are delivered despite the fact that their time-cost is unknown.  For example, when I sign a book contract, I don't know how long it will take to write the book anymore than a lawyer knows how long it will take to resolve a legal case.  I therefore assume part of the risk; the longer I take to write the book, the more my compensation per hour will be reduced.

The fee charger, on the other hand, not only structures the arrangement so that his client assumes all of the risk, but also leaves the client at his mercy because the only hard limits on his time cost are his conscience and the client's solvency.  Even if the fee charger has a conscience and bills the service in the actual amount of time required to perform it, this doesn't change the fact that the nature of the structure is intrinsically corrupt.

Logos doesn't even attempt a defense, but tends to concur:
I'm a lawyer, and I admit that I hate just about every lawyer I've come into contact with. I'm still naive enough to try to make good arguments and win cases, but lawyers I work with abhor the possibility of closing a matter early or letting me get credit for winning it (I even have to fight to sign my name on my own work product, which is damn good). It makes me sad because we are supposed to be in a noble profession that fights for the rule of law against all who would threaten it, especially government.
I actually have an amount of sympathy for those lawyers who entered the profession without understanding its corrupt and corrupting nature.  Neither pre-law nor law school really explicate the truth for them, but rather give it to them in small doses so that only the most perceptive law student could put into any kind of coherent perspective.  One of my best friends is a lawyer, he was fired from his first law firm due to his unwillingness to bill nonexistent hours, and he is generally a man of good conscience.  But even he sees the problematic aspects of the system.  Those individuals of good will who chose to become a lawyer may well be bothered by the genuine hatred and disdain which so many people feel for them, but then, no doubt there are nice, good, honest bankers too.  So long as he is an officer of the court, a lawyer is a sworn agent of the legal system and cannot credibly disassociate himself from it.

And finally, robwbright attempts to get lawyerly, which is always unwise when dealing with a superintelligence armed with facts and logic, at least outside the courtroom.
Now, Vox said something I find a bit ironic.  "if one doesn't know the difference between written law and case law, and understand how the latter trumps the former, it's not even possible to have an informed opinion on the issue."

Vox, if you're going to rant about something, at least get the terminology right, or YOU risk appearing as if it's not even possible for you to have an informed opinion about it.

By "written law", I assume you mean statutory law. However, that's not a normal/common way to say/describe it, because case law is also most certainly written. Perhaps I misunderstand your meaning of "written law", but that's not my fault, as your term "written law" is not precise. Common law might be referred to as "unwritten law", but that's not case law, either.

And no, case law most certainly does NOT trump statutory law in any court in which I have practiced (2 states, 7 counties, District Court of Appeals, State Supreme Court, Federal District Court and Court of Appeals).
Given that robwbright quite clearly understood the precise distinction I was making between the two distinct types of law, a distinction that the average layman does not even know exists, this is nothing more than a shallow attempt at rhetorically undermining my point while appealing to his own authority.  I used the term "written law" because I am not addressing an audience of lawyers here, and there is absolutely no need to resort to legal jargon in order to make clear the difference between the statutory laws that are written and passed by the elected legislatures, (which is what most people understand the law to be), and the non-laws that are the set of existing rulings which made new interpretations of law and can be cited as precedent, and which the lawyers in the system agree to mutually pretend are "case laws" possessed of a standing intrinsically superior to the legislative laws.

The fact that robwbright's objection is a trivial and deceptive one can be shown by the U.S. legal jargon "black letter law", which means "well-established case law".  After all, statutory law is printed in black letters too... so how can anyone possibly know what "black letter law" is?  It could be statutory law, it could be case law, it could be regulatory law, right?  If we are to accept his lawyerly logic, we must assume that any judge or lawyer who uses the term "black letter law" risks appearing as if it's not even possible for them to have an informed opinion about it.  I trust this demonstrates how feigning ignorance and confusion is a counterproductive means of attempting to rhetorically undermine an opponent, particularly when one is attempting to establish oneself as a trustworthy authority.  Henceforth, I will use the terms "legislative law" for "written law" or "statutory law", and "interpretive rulings" for "case law", in the interest of precision and clarity.

He then appeals to the authority of his own experience in claiming that interpretive rulings do not trump legislative law in any court in which he has practiced.  However, I have personally witnessed interpretive rulings repeatedly trump legislative law in several Minnesota and Federal District Courts, and there are no shortage of similar examples I could cite.  But since I cannot expect to win competing appeals to personal experience with a lawyer on this subject, I will have to do better than that.  Which, as it happens, is simple enough, based on logic and legal history.

Being a lawyer, robwbright must know that interpretive rulings always trump legislative law at the court's discretion, otherwise it would not be possible for "the set of existing rulings which made new interpretations of law and, therefore, can be cited as precedent" to be so often used by the Supreme Court and other courts for the purpose of overturning legislative laws.  If we are to accept his reasoning, it is impossible for a legislative ban on abortion to be overturned... except by a subsequent action on the part of the relevant legislature.

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133 Comments:

Anonymous Salt October 05, 2012 8:09 AM  

The Asst. Atty. Gen. representing one of the defendants in my case was reading his bible in the courtroom prior to commencement. I found that quite humorous.

Anonymous CaptDMO October 05, 2012 8:15 AM  

So if mere wage earners are FORBIDDEN from "practice"
of law, and only Licenced and approved (by who again?) folk can be allowed to assume the mantle of fee-seeker(by legislation), doesn't that make them rent-seekers?

Lawyers? Parasitic scum? What a novel idea, since at least Shakespere's day.
The distinction between Legislated (the letter) law in current standing, and complicated/nuanced/ reinterpretations available to The Court, as potentially argueable with volumes of non sequitur, reinterpreted, precedents, exists because?

Ironically, folks in prison, with nothing but time on their hands, are quite often of superior expertise in the field. Yet only credentialed and licenced folk are expected to carry (someone elses work)citations from the box to the bench, for an "I'll decide later..." fee of course.

Not from a cell, but I've been there, done that, before. Fortunately, as I did all the research, and provided the (Legislated)law for the case the lawyer would otherwise assume "billable time" to "research", it suddenly became a "minimum pro bono requirement expectation" fulfiller. Of COURSE I "won". Judges time from gavel to gavel? About 30 seconds.

Yeah, took me (lay wonk) about an hour of "work".

As for ANY "Gee, I personally know several lawyers...they're nice,fair,hard-working folk." Please bitch-slap them, instruct them to STFU, publicly accuse THEM of doing it, and ask them to PROVE otherwise in court.

It's bound to be a teaching moment.

Anonymous Mr Green Man October 05, 2012 8:18 AM  

On the written word of the legislature vs the connivance of the neo-priestly caste in black robes, look no further than how "subject to the jurisdiction thereof", passed and apparently understood by a House, Senate, signed by a President (superfluously, but he was excited), and embossed with the imprimatur of a super-majority of state legislatures, was rendered a vacuous phrase by priestly opinion -- and there it sits, clearly a safeguard against the anchor baby phenomenon, dead as a door nail.

Anonymous Cryan Ryan October 05, 2012 8:36 AM  

From my several experiences with lawyers, it appears they decide the fee, then divide by the supposed dollars per hour rate, giving a supposed number of hours to bill for.

How on earth could anyone argue how much time they've actually spent? You pay em for their influence, their knowledge, and their strategy.

Them's the rules, man.

Anonymous Joe Doakes October 05, 2012 8:46 AM  

I have no doubt Mr. Bright's education and experience is far superior to my own night school, small town practice; but perhaps he's heard of a little dustup in which the United States Supreme Court decided an unenumerated and implicit right hidden in emanations of penumbras did, in fact, trump the abortion statutes of all fifty states?

Roe versus Wade, I think it was?

.

Anonymous Robert in Arabia October 05, 2012 8:48 AM  

Yesterday, a US appellate court upheld the language enabling indefinite detention of American citizens without due process.

As a person of both faith and logic, I have, and have had, reasoned, peaceful disagreements with many past administrations, as well as the current administration.

But the way in which the language of the NDAA is so loosely constructed, any rational, fact-supported statement I might make, which in no way advocates any violence, can now be construed as "giving aid and comfort to the enemy" (du jour).

Logic can now be punished in this country with indefinite detention, and without due process.

Anonymous stg58 October 05, 2012 8:52 AM  

And no, case law most certainly does NOT trump statutory law in any court in which I have practiced (2 states, 7 counties, District Court of Appeals, State Supreme Court, Federal District Court and Court of Appeals).

If this isn't true, what about Stare Decisis? Isn't the whole reason people go to court to get what they consider bad law overturned? What was Brown v Board of Education? Lawrence v Texas? Plessy v Ferguson? Hell, Dred Scott, Marbury v Madison or McCullough v Maryland??

Blogger James Dixon October 05, 2012 8:56 AM  

> Logic can now be punished in this country with indefinite detention, and without due process.

I guess that means it's fortunate that so few Americans are capable of using logic then.

Anonymous O.C. October 05, 2012 9:05 AM  

I hope no one will scream "anti-semitic!" if I point out that there is absolutely nothing new about this argument. Consider the gulf between Torah and Talmud. For more than 2,500 years they've been splitting hairs between the Lord's laws as dictated to Moses and the collected opinions of thousands of subsequent rabbis, with the result being that it's now possible for modern Americans of Hebrew ancestry to believe and do things that would have Moses throwing tablets again. Just ask one for an opinion about -- oh, abortion.

There will always be weasels trying to justify their behavior by splitting ever finer hairs. ("Did he say 'Thou shalt not kill' or 'Thou shalt not murder'?") Lawyers are despised because law is a profession that's attractive to weasels, of the sort who prefer sitting around arguing about the rules over actually playing the game.

Anonymous Rollory October 05, 2012 9:05 AM  

"the U.S. legal community's use of the term "black letter law" to mean "well-established case law". "

Interesting definition. Denninger uses the term "black letter law" a lot, nearly always in the sense of what the statutes actually say, which is what the intuitive meaning of the phrase would seem to be.

Of course, he does so in the context of complaining that the statutes aren't being enforced.

Anonymous Rantor October 05, 2012 9:13 AM  

I have a distant step/in-law who is serving time in a California Penitentiary. He was the junior, and I believe ignorant party in a land deal gone wrong. He spent over $200,000 on his defense attorneys who, in the end, recommended he take a plea bargain. They assured him he would only get a couple years and quickly out of jail with time served. I think he is 3 or 4 years into a 7 year sentence. Once sentenced, the lawyers stopped answering his phone calls or letters. They certainly made enough, but by advising him to plea bargain he is a convict, and when similar charges in a related case arose - he was a slam dunk because he had pled guilty elsewhere.

I think the lawyers he hired are just as guilty of any theft he pled to -- and probably more so since they use their union to make the laws and break the laws at will.

Blogger swiftfoxmark2 October 05, 2012 9:17 AM  

I am often frustrated by the people I know who continually rely on the courts to nullify bad laws passed by Congress. From Campaign Finance Reform to Obamacare, what people fail to understand is that the court system is run by lawyers, that most legislators were lawyers, and that they have a nice little club where they hang out.

The court system has evolved into a branch designed to rubber stamp all the bad laws and precedents that the politicians (lawyers) passed or mandated in the first place. We used to have a notion that the State had to prove its case, whether criminal or constitutional, before a judge or panel of judges. These days, the default opinion is that the State was right to pass a law or mandate a policy and that we have to prove them wrong.

Justice has been turned on its head. Stay clear of lawyers and the court system if you can. I am wondering if there are viable alternatives in the United States, even if they are supposedly "illegal".

Anonymous Stilicho October 05, 2012 9:21 AM  

And no, case law most certainly does NOT trump statutory law in any court in which I have practiced (2 states, 7 counties, District Court of Appeals, State Supreme Court, Federal District Court and Court of Appeals).

Of course not, but you are willfully ignoring the fact that judges "interpret" statutes to achieve whatever result they desire. And, since you and I practice in at least one state in common, I know you've seen this happen. It does not matter that it isn't supposed to work that way: that's the way it works in practice. It was a rude awakening for me, but I do not deny that this is the way our judicial system functions.

Anonymous Rantor October 05, 2012 9:25 AM  

Swiftfoxmark2

But notice how quick the courts are to strike down laws and Constitutional ammendments approved by the people (California marriage ammendment comes to mind). Of course the people aren't part of the lawyers union.

Anonymous PC Geek October 05, 2012 9:26 AM  

("Did he say 'Thou shalt not kill' or 'Thou shalt not murder'?")

Not really helping your case there...those two phrases are *very* different in meaning.

Yo uare right that religious authorities do do the 'lawyering' and 'weasel words' of which you speak to twist the Scriptures to justify almost anything, but your example is not one of those cases.

Anonymous Asatru Heathen October 05, 2012 9:29 AM  

"Fee chargers often resort to a deceptive defense, by claiming that they must charge for their time because they don't know exactly how long it will take to provide the service. This defense is belied by the fact that products and services in markets permitted to be competitive are delivered despite the fact that their time-cost is unknown. For example, when I sign a book contract, I don't know how long it will take to write the book anymore than a lawyer knows how long it will take to resolve a legal case. I therefore assume part of the risk; the longer I take to write the book, the more my compensation per hour will be reduced."

The difference between an author and a lawyer is that the author is largely in control of the writing process. You can choose to write slowly, or swiftly, one day a week, or seven days a week.

A lawyer does not have that luxury. How many times does he have to chase the client for that information he needed? How many times must he listen to the client ramble on about irrelevances while trying to take instructions? What will the other side say? What motions will they make, and additional work will they require? What is the client holding back? How will the court rule on this piece of evidence? The lawyer is at the mercy of various third parties over whom he has no control.

Could lawyers still charge a fixed fee for everything? Sure. For a while. Until they went out of business through pitching their fixed fees too low, or drove their clients away through pitching them too high. It does not seem like a sustainable model for litigation billing, however.

I understand that you despise "lawyers" as a class (although, looking at your complaints and the complaints on these comments I suspect that "litigators" would probably be a more accurate classification), and rightly point out the flaws in the traditional billing system. But I suspect that, for litigation and other open ended work, however, it's the least worst option.

Anonymous Onefiver October 05, 2012 9:30 AM  

I'm a lawyer and tend to be in Logos camp. Ive worked in regional firms, AMLaw 50 firms, flown solo and am now in-house and have seen it all. I'm more task oriented and the billable hour was an annoyance from day1. When I went solo, I offered everything on a flat fee basis. Clients didnt appreciate it as much as I thought they might but that could merely be a function of them not having a lot of experience.

I now make my outside counsel do everything on a flat fee basis after firing a few that had really heavy pens.

The people in the profession generally overestimate their intelligence by a large degree. Robwright's crap above is a prime example of that and why I don't generally associate myself with attorneys - what Vox was getting at was abundantly clear, but that didn't prohibit the shallow blah blah blah retort. It's the same mentality of lawyers who replace one set of boiler plate language with another - even though they functionally say the same thing (bonus is that you get to bill your client 1.0 hour for the cut and paste job because the redline looks like a lot of work!).

Anonymous Stilicho October 05, 2012 9:34 AM  

As for billable hours as a means of determining compensation, the only time I use it is when a client insists on it. The ones who do this are either insurance companies or businesses that have adopted the insurance company model of legal fees. Why do they insist on it? Primarily because they have bureaucratized the system with billing codes, words you cannot use when describing the work, etc. that gives them opportunities to contest bills and delay payment over any minor discrepancies they can find or fabricate and, at the least, some corporate drone can claim that she is "doing something" about managing expenses even if she accomplishes nothing.

The only valid defense of billable hours is the risk of the amount of work and time involved in a matter may exceed what is anticipated. This is especially true in matters where a court or an opposing party may be able to unilaterally drag out the resolution of the matter. However, this risk, can be partially accounted for through experience and greater risk simply means that a higher fee should be charged. There is no reason the attorneys cannot bear this type of risk along with their clients.

Blogger swiftfoxmark2 October 05, 2012 9:44 AM  

But notice how quick the courts are to strike down laws and Constitutional ammendments approved by the people (California marriage ammendment comes to mind). Of course the people aren't part of the lawyers union.

Like I said, they rubber stamp the legislation and mandates of their good ol' boys and gals in the political lawyers country club.

Anyone else is a mere mundane and must be set straight. Or gay.

Anonymous Jody October 05, 2012 9:49 AM  

I do a little consulting for the government (wireless comm systems). Somewhat bizarrely to me, while I always offer to provide my deliverables under a Firm Fixed Price contract, they always want a T&M.

Which annoys the h*ll out of me as with a T&M contract comes a whole bunch of accounting overhead and auditing. Financially, it's a wash as that gets rolled into the T&M rate, but I end up having to waste a lot of my time on administrivia instead of the technical work which is what they supposedly want and is what I actually enjoy doing.

My commercial customers, however, are always happy with FFP.

Anonymous Matt October 05, 2012 9:56 AM  

If we are to accept his reasoning, it is impossible for a legislative ban on abortion to be overturned... except by a subsequent action on the part of the relevant legislature.

Of course you're right in practice, but in principle this is actually supposed to be what happened. The Constitution - supposedly - is a statutory prohibition on the restriction on abortion. As such it can't be overturned except by subsequent legislative action, in this case a constitutional amendment.

Anonymous Stilicho October 05, 2012 10:01 AM  

Of course you're right in practice, but in principle this is actually supposed to be what happened. The Constitution - supposedly - is a statutory prohibition on the restriction on abortion. As such it can't be overturned except by subsequent legislative action, in this case a constitutional amendment.

Except for the fact that a judge can "interpret" nearly any damned thing he wants into or out of a statute, especially, I suppose, if it's emanating from the penumbras.

Anonymous George October 05, 2012 10:02 AM  

VD wrote:

"interpretive rulings always trump legislative law at the court's discretion, otherwise it would not be possible for "the set of existing rulings which made new interpretations of law and, therefore, can be cited as precedent" to be so often used by the Supreme Court and other courts for the purpose of overturning legislative laws."

VD...this notion of "interpretive rulings" or "case law" are rulings that are BASED on STATUTORY LAWS.

You fall into the same ignorant position of thinking all statutory law from the U.S. Constitution to State Constitutions to Local laws are always perfectly clear, present no ambiguity and result in no misunderstandings. This mistake on your part and others allow you to claim that judges can and do just make up laws as they go along.

While many claims are easily dispensed with because one of the parties' claims are clearly contrary to statute and law, there are many many other instances where the statutory law simply does not give clear guidance. In the annals of western common law going back centuries, the court of judge is required to interpret the law and render judgement.

What results is a ruling based on statutory law, which also serves as precedent or CASE LAW that guides lower courts when similar issue arise.

You are not a lawyer VD. And it shows. You are not a legal scholar. And it shows. You have a very cursory understanding of the law. And it shows.

Anonymous Josh October 05, 2012 10:07 AM  

George, are you a lawyer?

Anonymous Vitus_Bering October 05, 2012 10:10 AM  

"I used the term "written law" because I am not addressing an audience of lawyers here..."

- sounds like Obamaspin, post-debate.

Anonymous George October 05, 2012 10:11 AM  

STG 58 said:

"If this isn't true, what about Stare Decisis? Isn't the whole reason people go to court to get what they consider bad law overturned? What was Brown v Board of Education? Lawrence v Texas? Plessy v Ferguson? Hell, Dred Scott, Marbury v Madison or McCullough v Maryland??"

These were decisions based on statutory law. They form precedent, Stare decisis, or what VD would like to call "interpretive law". In other words if you want to know why anti-sodomy laws cannot stand in our land and if you want to know the reason why, you can go read Lawrence v. Texas.

Blogger Jonathan Bennett October 05, 2012 10:12 AM  

Disclaimer: I have started a small business, and around 5-10% of my work is billed hourly. I don't bill everything by the hour because it is easier to give quotes and get repeat business with a service based, monthly billing model.

Vox, I'm amazed by this. To suggest that billing by the hour is in itself dishonest is rather insane. Billing more hours than actually worked is dishonest. That's a given. Working half-heartedly is dishonest. Intentionally taking longer to do a job is dishonest. However, if someone wants to take advantage of their customers, they can find ways to do so regardless of the method of billing.

If it is known before hand that the work will be billed hourly, and the customer agrees to it, then there is no deceit and no dishonesty. I dare say that part of having a free market is the freedom for individuals to use whatever method of billing and payment that they agree on.

What method would you suggest to curb the use of hourly fees? Should the government regulate the use of hourly billing? Free market theory dictates that if billing by the hour were so corrupt, people would be eager for an alternative. I have yet to meet a client that doesn't want to pay hourly. I have met at least one that didn't want to pay for services rendered because we worked so quickly.

It is ridiculous to call a billing method corrupt when the two parties agree on the billing method.

Anonymous VD October 05, 2012 10:14 AM  

VD...this notion of "interpretive rulings" or "case law" are rulings that are BASED on STATUTORY LAWS.

No, they are rulings in which a judge CLAIMS were based on statutory rulings or previous interpretive rulings. And when such rulings are examined, it is quite often very clear that those claims are false. You are unquestioningly accepting the legal community's self-serving and observably false description of their own activities.

You fall into the same ignorant position of thinking all statutory law from the U.S. Constitution to State Constitutions to Local laws are always perfectly clear, present no ambiguity and result in no misunderstandings. This mistake on your part and others allow you to claim that judges can and do just make up laws as they go along.

You are blatantly lying. I never thought, much less wrote, anything of the kind. I know perfectly well that judges can and do just make up laws as they go along. They have observably done so. I have observed them doing so. I once personally witnessed a judge decide a civil case by literally flipping a coin.

You are not a lawyer VD. And it shows. You are not a legal scholar. And it shows. You have a very cursory understanding of the law. And it shows.

That's true. I am not, and it shows I have a better and more accurate understanding of their corrupt system than most lawyers or legal scholars will publicly admit to having. But they'll admit to it in private, as you will note two lawyers here have already backed up what I wrote.

Anonymous Asatru Heathen October 05, 2012 10:19 AM  

Full disclosure: I'm a "lawyer". Actually I'm a solicitor, practicing in rural England. I've not set foot in a courtroom since completing my training, though; I write wills, manage trusts and estates, and help middle-England reduce their tax burden.

My initial reaction to this, and the previous post, was mild disagreement. I say mild, because the lawyers Vox was describing bear no resemblance to the solicitors I have known, who are largely ordinary, decent, hard working people. Shades of good and bad, just like everyone else. It felt like Vox was discussing a whole other species, and, having no experience with US litigators, I limited my comments to the time billing system (which, mercifully, I don't use as I'm not a litigator - the price is the price, and I'll tell you what it is before I even start work).

However, a number of the "rebuttals" to Vox's posts seem designed to prove his point. Why do people get so worked up about what some guy on the internet (even one as entertaining as Vox) thinks about their profession? Does it make any difference to their lives?

The lady doth protest too much, methinks.

Anonymous Vic October 05, 2012 10:23 AM  

You fall into the same ignorant position of thinking all statutory law from the U.S. Constitution to State Constitutions to Local laws are always perfectly clear, present no ambiguity and result in no misunderstandings.=quote

I suppose the serpent in the garden was the first lawyer, taking the clear commands of God and twisting them in such a way as to make them appear ambiguous to Eve. God is to blame here because he did not clearly define his definition of "is".

Anonymous VD October 05, 2012 10:24 AM  

If it is known before hand that the work will be billed hourly, and the customer agrees to it, then there is no deceit and no dishonesty.

This is the Goldman Sachs defense. So long as you can somehow trick the person into giving you carte blanche, you can do whatever you like with them. The fact is that it is only an honest agreement if the alternatives are equally plausible.

What method would you suggest to curb the use of hourly fees? Should the government regulate the use of hourly billing? Free market theory dictates that if billing by the hour were so corrupt, people would be eager for an alternative.

My method would be to break the government-imposed monopoly. Let anyone who wants to practice law and charge whatever they want, however they want. One cannot claim that hourly billing is honest when the supply of services is kept artificially low by the use of government licensing. I suspect some clients would prefer hourly billing, perhaps as much as 5-10 percent.

Anonymous Daniel October 05, 2012 10:24 AM  

Vox
They are primarily the result of government intervention in the economy, which creates artificial shortages that permit the government-protected fee charger to force the client to purchase the fee charger's time rather than the service he actually wishes to charge.

This is it precisely. The billable hour concept is a cancer that started in the insurance industry and has spread beyond law to such idiocies as advertising agencies! The insurance companies demanded billable hours from their attorneys for accounting purposes. The lawyers then introduced the concept to major corporations and educational institutions and of course it was welcomed with open arms by the bureaucrats in the government who inspired its "necessity."

It just became the premier mode of grabbing cash and gaming the exchange.

I know an attorney who has been practicing since the 1960s who never cottoned to billable hours. He still charges (I don't know his real rates) $500 for a simple business contract, $1000 for a completed will, $2000 for a divorce, etc. Has a menu and everything. He says he's never lost business because of it, but I'm not sure that's accurate. What is certain is that he's never lost his business.

I'd guess that about 90% of the licensed lawyers I know who are not practicing (or else in-house counsel) today would (or, rather have) cite the economic gasbag of billable hours. Usually, they were on the wrong end of it: killing themselves for senior partners and having their hours (whether actual or padded) arbitrarily adjusted. One of them started his own adventure tour business and claims it is an incredible difference to actually have an open exchange of services for fees, vs. lawyering.

Anonymous George October 05, 2012 10:26 AM  

VD said:

"No, they are rulings in which a judge CLAIMS were based on statutory rulings or previous interpretive rulings. And when such rulings are examined, it is quite often very clear that those claims are false."

Really. Which rulings by the Supreme Court are "false" VD? And why are they "false"? And are there no parts of the Constitution that are unclear and open to interpretation? Really? And what about those parts of the Constitution that conflict with one another?

You're a little upset because your claim that case law trumps statutory law has been found wanting in the extreme, due primarily to your attempting to write authoritatively on a subject you clearly don't understand.

Anonymous YIH October 05, 2012 10:28 AM  

The question of ''billable hours'' not only applies to lawyers but to car mechanics as well. For decades there has been a debate over which is better ''book hours'' or ''clock hours'' in billing for service.
With ''book hours'' you look up the make a model of the car, what the apparent problem is and you get a (often padded) estimate of how long it will take to perform the service. If gives the mechanic the ability to say up front ''it will take X amount of time and cost you $Y''. If the mech works for a company that bills by ''clock hour'' (billed for the length of time required from first touching the car to job completed) there is a much more vague estimate that often has little to do with the final bill.
There's the dilemma; Do you (or your company) say ''we will provide you with an estimate before starting the work and the final bill will be no more than say, 10% of the estimate''. In some areas that's not only a custom, it's required by law.
Or do you bill with the mech punching a clock? ''Yeah mister, I'm working on your car *turns page on Playboy*'' the potential for abuse is obvious.

Anonymous O.C. October 05, 2012 10:35 AM  

> ("Did he say 'Thou shalt not kill' or 'Thou shalt not murder'?")
>
> Not really helping your case there...those two phrases are *very* different in meaning.

In English, you are right.

In the original Hebrew there is ambiguity, and people have been arguing over the correct way to translate the verb into other languages for nearly 2,000 years.

Anonymous Edjamacator October 05, 2012 10:35 AM  

Really. Which rulings by the Supreme Court are "false" VD? And why are they "false"? And are there no parts of the Constitution that are unclear and open to interpretation? Really? And what about those parts of the Constitution that conflict with one another?

I'd say a ton of crap the SC lets go in the name of the 1st Amendment are false. How many times do courts rule to silence religious speech in schools, public places, government buildings and the like claiming "separation of church and state?" Especially since the only thing the 1st Amendment puts a limit on is Congress MAKING A LAW respecting an establishment of religion. Tell me, exactly, how banning a Christian from thanking Jesus for her educational success in public is the direct equivalent of Congress making a law.

Blogger IM2L844 October 05, 2012 10:39 AM  

You are blatantly lying. I never thought, much less wrote, anything of the kind.

Vox, keep in mind that even though it is not unusual for liberals to be blatant liars they also typically display delusional disorders and very often claim to have a supernatural ability to read minds.

Anonymous Edjamacator October 05, 2012 10:40 AM  

Vox, keep in mind that even though it is not unusual for liberals to be blatant liars they also typically display delusional disorders and very often claim to have a supernatural ability to read minds.

And oddly enough all those minds seem to have the same personality disorders as their own.

Anonymous VD October 05, 2012 10:41 AM  

Really. Which rulings by the Supreme Court are "false" VD? And why are they "false"? And are there no parts of the Constitution that are unclear and open to interpretation? Really? And what about those parts of the Constitution that conflict with one another?

You're an idiot and a liar, George. This is why I ignore most of your comments. You can't argue your way out of a paper bag.

You're a little upset because your claim that case law trumps statutory law has been found wanting in the extreme, due primarily to your attempting to write authoritatively on a subject you clearly don't understand.

This is the third time you've lied in this post alone. I'm not upset at all, and I have proven that interpretive rulings always trumps statutory law at the judge's discretion. The amusing thing is that you can't even figure out that you are arguing with your own position.

Anonymous Daniel October 05, 2012 10:42 AM  

YIH - the difference with the mechanic is that I can (and did, just yesterday) go back into the garage and see them actually spending the hour doing things to my car, and my car drives off improved. Now, some of that comes from having a trusted mechanic (and knowing enough about cars to trust one), but, even if I trust my lawyer, there's no possible way to verify

Book hours are certainly padded, and I almost exclusively go to clock hour mechanics, but the fact of it is that you can still take the car (except in case of breakdowns - where vulnerability to de facto monopoly effect presents a far bigger threat than the inherent weakness in billable hours) to get another estimate.

Not so easy with a lawyer. The lawyer's billable hours is simply: "It's $350 per hour, and every phone call, no matter how brief, is 1/6th of an hour (or whatever)"

In other words, the bucket has no bottom. I've never been to a mechanic, book or clock, who says, "Yeah, its $75/hour labor. God knows how long that's going to take..."

I'm not saying billable hours for mechanics are ideal. I much prefer the shops with menu pricing when I can find them (if they are good), and they certainly aren't obligated to bill by the hour.

The one lawyer I know who doesn't do billable hours has had to buck the system for decades. I know plenty of mechanics who do straight menu pricing for at least the basics.

Anonymous George October 05, 2012 10:45 AM  

Edjamacator said:

"I'd say a ton of crap the SC lets go in the name of the 1st Amendment are false. How many times do courts rule to silence religious speech in schools, public places, government buildings and the like claiming "separation of church and state?"...Tell me, exactly, how banning a Christian from thanking Jesus for her educational success in public is the direct equivalent of Congress making a law."

First, you need to understand the 14th Amendment. Then you need to go read Lee v.Weisman. It's all laid out right there.

Anonymous George October 05, 2012 10:51 AM  

VD said:

"You're an idiot and a liar, George. This is why I ignore most of your comments. You can't argue your way out of a paper bag."

While I'm well outside the paper bag, you are still inside of it trying demonstrate that what you call "interpretive law" and what most people call "case law" trumps Statutory law. But in fact, it's a pretty simple and basic principle that "case law" is nothing more the collection of cases that result form judging the meaning of statutory law. In otherwords, STATUTORY law is the basis for a decision in nearly every instance. You really must get an education if you want to swim in these waters.




Anonymous Porky? October 05, 2012 10:51 AM  

The fact that a law can both be upheld and overturned based upon the exact same statute is evidence enough, no?


Anonymous George October 05, 2012 10:56 AM  

Porky wrote:

"The fact that a law can both be upheld and overturned based upon the exact same statute is evidence enough, no?"

It's evidence that you have a statute or law that is unclear, poorly written or conflicts with another statute or law.

Blogger thimscool October 05, 2012 11:01 AM  

when I sign a book contract, I don't know how long it will take to write the book anymore than a lawyer knows how long it will take to resolve a legal case.

I have never written a book, but it strikes me that you can define the scope of writing the book in a single sentence; or maybe a paragraph if you want to impose a lot of conditions on the author. Defining scope in a professional service business is often a lot more challenging than that, because there is unpredictable feedback, and the potential for discovery of consequential but originally unknown circumstances. It is not reasonable to ask the attorney to assume the risk for their client's undisclosed but relevant zingers.

Tire kicker customers will try to exploit this difficulty in defining scope by having extended and hopefully unbillable conversations, as if they were talking to a car salesman. But the lawyer is not selling anything other than their time, their expertise, and their gravitas in the relevant venue.

A young lawyer might make the mistake of patiently spelling it all out in a written estimate, only to see the client balk and take the estimate to a competitor that reads it, chuckles, and says they'll do it for 10% less. Cost of sales just went through the roof and the competitor is getting easy pickings.

An experienced lawyer will be able to provide a broad estimate for most circumstances without spending a lot of time meeting, assuming that the scope does not change materially during the proceedings.

If you don't ask for an estimate, and just resent that they are charging for their time, then get a better lawyer... because they should be discussing cost as a matter of course.

I'm not a lawyer, although I have several of them as clients. In my opinion, billing hours is not a dishonest business practice, but rather a rational response to the market conditions. There are firms that bill in package form, but they typically cost a lot more money per hour when you do the math, as they tend to appeal to clients with more $ than sense.

Blogger Jonathan Bennett October 05, 2012 11:04 AM  

Quote: This is the Goldman Sachs defense. So long as you can somehow trick the person into giving you carte blanche, you can do whatever you like with them. The fact is that it is only an honest agreement if the alternatives are equally plausible.

Really? So if two parties agree to something, it's suddenly dishonest because you feel your preferred alternative wasn't considered? I declare that any billing arrangement is dishonest unless payment in moon rocks is seriously discussed.

Again, I simply find no evidence that hourly billing is in itself corrupt. It may be abused more easily than other arrangements. It's not dishonest, however, until it is abused.

To make my position more clear, when I am called by someone needing a virus removed from their computer, how am I being dishonest or corrupt by charging an hourly rate? I don't believe I have ever charged more than an hour for this service. There are some forms of malware, however, that require a full system reinstall to really get rid of. In such a case, would I be in the wrong to charge for a second hour of work?

Quote: My method would be to break the government-imposed monopoly. Let anyone who wants to practice law and charge whatever they want, however they want. One cannot claim that hourly billing is honest when the supply of services is kept artificially low by the use of government licensing. I suspect some clients would prefer hourly billing, perhaps as much as 5-10 percent.

This is a more reasonable position. Ending government licensing of law would naturally deflate the price of their services, and lower the bar of entry to practicing. It is worth pointing out, however, that the average lawyer is not responsible for the government-imposed monopoly. Beyond this, the monopoly also serves to make it much more expensive and laborious to become a lawyer in the first place. Simply supply and demand economics dictate that the price of a lawyers services increase in such an environment. It is rather untenable to call any individual lawyer immoral for charging industry standard prices that are a result of supply and demand. In short, hate the game, not the player.

Anonymous Stilicho October 05, 2012 11:04 AM  

STATUTORY law is the basis for a decision in nearly every instance. You really must get an education if you want to swim in these waters.

Quack, heal thyself. What part of the concept of "purported basis" can you not understand? The fact that judges' decisions are supposed to be based upon statutes in most cases along with the fact that they often pretend to such a basis does not change the unalterable fact that judges routinely interpret statutes beyond anything contained within the statute to achieve the desired result. One of the more prominent examples of this is Roe v. Wade.

Anonymous Josh October 05, 2012 11:05 AM  

With mechanics, or other services that bill by the hour, you get an estimate for the total cost.

I'm not aware of lawyers doing anything like that.

Blogger thimscool October 05, 2012 11:07 AM  

The lawyers that I have worked with for various matters all gave me estimates, Josh.

Did you ask for one?

Anonymous George October 05, 2012 11:12 AM  

Stilcho wrote:

"What part of the concept of "purported basis" can you not understand? The fact that judges' decisions are supposed to be based upon statutes in most cases along with the fact that they often pretend to such a basis does not change the unalterable fact that judges routinely interpret statutes beyond anything contained within the statute to achieve the desired result. One of the more prominent examples of this is Roe v. Wade."

You may not like the Roe ruling, but if you read it, it is based on various parts of the constitution. You may disagree with those interpretations of the constitution, but you can't disagree that the ruling was based on the constitution.

You are like VD. You think every part of the constitution is black and white, that its meaning is always perfectly clear, that there are never conflicting parts of the constitution. That's a fantasy built on the desire to criticize the courts for decisions you don't like.

Anonymous Asatru Heathen October 05, 2012 11:12 AM  

Josh said:

With mechanics, or other services that bill by the hour, you get an estimate for the total cost.

I'm not aware of lawyers doing anything like that.

In the UK, solicitors are required by their regulatory body (the SRA) to provide an initial estimate, as well as regular updates. A failure to do so will result in any subsequent bill being overturned.

While I've already noted that some of the people defending lawyers are their own worst enemy, some of the people criticizing lawyers seem to only have encountered them on television, or in a jurisdiction very dissimilar to Commonwealth jurisdictions.

Anonymous VD October 05, 2012 11:20 AM  

You are like VD. You think every part of the constitution is black and white, that its meaning is always perfectly clear, that there are never conflicting parts of the constitution. That's a fantasy built on the desire to criticize the courts for decisions you don't like.

Fourth lie on this post alone, George. You're not only observably stupid, you are incredibly dishonest.

Anonymous Stilicho October 05, 2012 11:38 AM  

You may not like the Roe ruling, but if you read it, it is based on various parts of the constitution. You may disagree with those interpretations of the constitution, but you can't disagree that the ruling was based on the constitution.

Please quote the portion or portions of the Constitution that authorize the ending of a uniquely human life based solely upon the whim of the mother.

Anonymous Stilicho October 05, 2012 11:42 AM  

Fourth lie on this post alone, George. You're not only observably stupid, you are incredibly dishonest.

Indeed. I'm nothing like VD. I'm blond, taller, slightly slower, and much better looking.

Anonymous Jake October 05, 2012 11:49 AM  

I am not a lawyer (work for an engineering consulting firm). Our business is very competitive. Probably 90% of our work is fixed fee. We do on occasion have clients ask for T&M (mostly folks who sell directly to the government appropriately), but on occasion we also insist on it ourselves. Generally we do this on smaller jobs where the price doesn't justify the effort of giving a fixed price or where we know from experience that the client is going to expect/demand far more work from us than they're asking us to quote.

In my experience then, there is a place for hourly billing, but in a free and open market it is very limited (and all our hourly work includes a "not to exceed" limit). Of course we also are interacting with our clients several times a week, so there's much closer supervision than I suspect most folks enjoy when hiring a lawyer (hope to never find out first hand).

Anonymous dh October 05, 2012 11:54 AM  

Please quote the portion or portions of the Constitution that authorize the ending of a uniquely human life based solely upon the whim of the mother.

This is stupid. The Constitution does not authorize things, it recognizes rights, and constrains the government from doing certain things.

It no more authorizes you to breathe than it authorizes you to stop breathing. There are few restrictions on the individual person, and when there is, it's in relation to the person joining government - for example, rules on the requirements to be a Senator or President, and rules about granting titles to persons (i.e. the government can't do it).

Anonymous Megabozz October 05, 2012 11:54 AM  

Off topic:

http://www.digitalspy.com/odd/news/a409638/woman-falls-off-cliff-while-texting-on-phone.html

Anonymous YIH October 05, 2012 11:57 AM  

@Daniel: That's why I generally have no beef with ''book hours'', the mech has an incentive to get the work done faster for more 'turnover' plus there's the risk they assume that just because the 'book' says it takes three hours, it may take longer (rarely, but it happens). On most cars swapping out the alternator is a piece of cake and can done much faster than the estimated three hours. Not with this car, the Japanese in their own inscrutable way put that bugger where it's quite hard to get at. Took six hours total, I paid for three plus the part. It wouldn't have bothered me if it took one hour and I had to pay for three anyway (plus the part). So long as the shop states up front ''we charge by book hour'' so be it.

Anonymous dh October 05, 2012 12:03 PM  

VD--

Freelance software development is very much like what you describe the ideal condition for the practice of law to be. Anyone can advertise anything, and you are free to negotiate terms with whatever client you can attract and convince to use your service.

As the provider of the service, I will tell you that the billable hour is the only thing that protects the provider from unscrupulous clients. Negotiating a set price with an uninformed client is nearly impossible. The choice, as a provider, becomes to either starve, or try to set an arbitrarily high price that will cover whatever contingencies your client will try to pile onto your plate.

I suspect you realize this, given your background in game development. It's impossible to properly factor in the risk that the shader engine you are going to be using will have major bugs, or that whatever requirement blooms into a full-scale side project.

In a few cases, I have found, that a flat price works for both myself and the client. This is when I have some portion of a project already partially accomplished, and essentially re-sell a portion of it to a new client, at a mutal discount.

Anonymous VD October 05, 2012 12:07 PM  

I suspect you realize this, given your background in game development. It's impossible to properly factor in the risk that the shader engine you are going to be using will have major bugs, or that whatever requirement blooms into a full-scale side project.

Not at all. ALL games are developed on the basis of a flat fee. There has never, ever, been a publisher who paid a developer on the basis of how much they worked on it. In fact, it is my experience in game development that makes me certain that the legal sales and billing structure is fundamentally dishonest. Lawyers claim that despite all their experience and expertise, they can't correctly estimate their costs... meanwhile game developers are often doing things that no one has ever done before in the history of Man and doing it for a flat, pre-set fee.

Anonymous George October 05, 2012 12:07 PM  

"Please quote the portion or portions of the Constitution that authorize the ending of a uniquely human life based solely upon the whim of the mother."

All you have to do is google "Roe v. Wade" and you'll find all this in the decision. It's not a matter of opinion. The opinion i the case is a matter of fact.

Anonymous George October 05, 2012 12:10 PM  

dh wrote:

"This is stupid. The Constitution does not authorize things, it recognizes rights, and constrains the government from doing certain things."

Of course it authorizes things. Read the 21st Amendment, specifically paragraph 2.

Jesus!!!

Anonymous Stilicho October 05, 2012 12:15 PM  

The opinion i the case is a matter of fact.

You cannot be this stupid and also be able to type. I call blatant lie # 5 for this thread.

Anonymous Anonymous October 05, 2012 12:17 PM  

My lawyer charges me per text, at a rate that is a fraction of her billable hours. I learned this only after getting a bill about $300 more than what I expected. I don't answer her texts anymore. House painters will "knock off" some material costs to help a customer; mechanics might throw in freebie or two. Lawyers charge for texts that take a minute to respond to.

Anonymous Edjamacator October 05, 2012 12:17 PM  

First, you need to understand the 14th Amendment. Then you need to go read Lee v.Weisman. It's all laid out right there.

So judges seeing something in the Constitution that's not there and stretching a meaning to absurd degrees? I'd still consider that false as far as the truth goes. I never said the courts were truthful.

I want you, George, to tell me how thanking Jesus in a pubic forum is the same thing as Congress making a law establishing a state-based religion. See if you can do it without taking a "broad" interpretation where you have to twist, add, subtract, or flat out make it all up.

When some of the judges see it one way and others don't, it kind of sounds like the majority is only "right" because they have a majority, not because they are actually *right.* If the SC took a "broad interpretation" to mean that the first amendment meant you couldn't have any religion in the U.S. completely, how quickly would you be turning in religious people to the police? Would you be a good little Nazi or would you reject that interpretation?

Anonymous George October 05, 2012 12:18 PM  

VD WRote:

"You are like VD. You think every part of the constitution is black and white, that its meaning is always perfectly clear, that there are never conflicting parts of the constitution. That's a fantasy built on the desire to criticize the courts for decisions you don't like."

Fourth lie on this post alone, George"

VD, I have news for you. If you believe the constitution is vague in places, that its meaning isn't always perfectly clear, if there are separate parts of the constitution that conflict, as I've suggested you don't, then you should further understand that "case law" does not trump statutory law. You should understand that "case law" is the explanation for how statutory law applies and why it applies.

But you don't seem to be ready admit this perfectly obvious fact.

Anonymous Stilicho October 05, 2012 12:18 PM  

This is stupid. The Constitution does not authorize things, it recognizes rights, and constrains the government from doing certain things.

Do you really want to claim that Roe v. Wade does not purport to find authorization for abortion in the Constitution? This was not a question of positive versus negative law.

Anonymous George October 05, 2012 12:21 PM  

Stilcho wrote:

"The opinion i the case is a matter of fact.

You cannot be this stupid and also be able to type. I call blatant lie # 5 for this thread."

What, you don't think the Roe opinion exists? It's there. Google it. As a matter of fact, the opinion in Roe exists.

Blogger Logos October 05, 2012 12:21 PM  

I posted this in the last thread to respond to George's question to me, but it looks as though this thread has taken center stage so I will re-post here.

Delayed response to George's question about how to find meaning in some of the Constitution's vagaries. Unless I'm mistaken, the gist of his question is that it only makes sense to rely on the Supreme Court to iron these wrinkles out, a notion I completely reject.

First, the Supreme Court's role is simply to decide cases and controversies. Sometimes the Court must intepret the Consitution to perform this function, but those interpretations are binding solely on the litigating parties and the lower courts -- they do not bind anyone else. Every branch of the United States has a duty to uphold the Constitution, so if the Court issues a cockeyed pronouncement, the other branches can and MUST disregard it. So should the States, according to none other than Thomas Jefferson and the very "father" of the Constitution, James Madison. To believe otherwise is to believe that the federal government is the final arbiter of its own powers, which is the quintessence of tyranny.

Second, the Supreme Court has gone beyond its function of "judicial review" (i.e., constitutional enforcement) and claims the right to update the Constitution to fit modern times (i.e., constitutional amendment). This is a grotesque usurpation, for the amendment process is spelled out in Article V of the Constitution and requires legislative supermajorities among the States and Congress. Once again, to propose that a simple majority of five lawyers out of nine may amend the Constitution is tyrannical in the extreme.

And third, as to the meaning of "speech" in the First Amendment, it's important to recall that the Bill of Rights was drafted to apply solely to the federal government, as John Marshall held in Barron v. Baltimore. The Supreme Court has twisted the 14th Amendment (which was illegally passed, by the way) to mean that the federal government may apply the Bill of Rights -- and "penumbras" and "emanations" thereof -- to States and thus perpetually censor their laws, which inverts the constitutional order and makes the federal government master rather than servant. There is no need to tie ourselves in knots over what "speech" means. The answer is simple. A State law is presumptively valid and falls within the vast reservoir of power that the States kept via the 10th Amendment -- unless the law violates one of the few prohibitions on the States such as ex post facto, bill of attainder, or impairment of contract, it survives. A federal law is presumptively invalid because 1) the federal government has only enumerated powers, so the law must point to its constitutional source, and 2) even those enumerated powers it has must not violate the Bill of Rights, which is really just a redundant safety device. As to Citizens United (which I assume you're driving at), that was a federal law restricting how corporations could spend their own money with regard to political messages. Even if there is no "speech" in this equation, such a law has no constitutional basis anyway. But the regulation was directly tethered to the type of spending, and that type was political speech, so it was doubly invalid.

Anonymous George October 05, 2012 12:26 PM  

Edjumacator wrote:

"I want you, George, to tell me how thanking Jesus in a pubic forum is the same thing as Congress making a law establishing a state-based religion."

http://www.law.cornell.edu/supct/html/90-1014.ZO.html

Blogger Spacebunny October 05, 2012 12:28 PM  

George - you were asked a question. A link is not an answer. Now, answer the question.

Anonymous Stilicho October 05, 2012 12:34 PM  

What, you don't think the Roe opinion exists? It's there. Google it. As a matter of fact, the opinion in Roe exists.

You didn't claim that the existence of the opinion was a fact, you claimed that the opinion is fact you short-bus-riding, sniveling piece of worm excrescence:

All you have to do is google "Roe v. Wade" and you'll find all this in the decision. It's not a matter of opinion. The opinion i the case is a matter of fact.

On the other hand, since your reading comprehension is so suspect, I may have to modify my earlier stance on your lie.

Anonymous JartStar October 05, 2012 12:36 PM  

Interesting how George either doesn’t care that people call him a liar or can’t be bothered to defend his claims. Of course this is behavior is from someone who on this very blog said he agreed more with Lucifer than God.

Anonymous George October 05, 2012 12:36 PM  

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Anonymous George October 05, 2012 12:41 PM  

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Blogger RobertT October 05, 2012 12:41 PM  

To be fair, we have minimum charges for most of our products, and 80% of our clients pay them. But for more complex jobs we have no other way than time to charge. In those cases we are like a contractor who hasn't yet pulled the drywall off the wall. Until he does, he doesn't yet know what's underneath.

Anonymous George October 05, 2012 12:42 PM  

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Anonymous WaterBoy October 05, 2012 12:43 PM  

George: "In other words if you want to know why anti-sodomy laws cannot stand in our land and if you want to know the reason why, you can go read Lawrence v. Texas."

Justice Scalia disagrees with you:

Scalia calls himself a "textualist" and, as he related to a few hundred people who came to buy his new book and hear him speak in Washington the other day, that means he applies the words in the Constitution as they were understood by the people who wrote and adopted them.
.
.
.
"The death penalty? Give me a break. It's easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state," Scalia said at the American Enterprise Institute.


Now we have a SCOTUS judge disagreeing with the interpretations of other SCOTUS judges. So who's right? (Rhetorical question, I know your answer already.)

The point is that every interpretation is subjective.

Anonymous Edjamacator October 05, 2012 12:46 PM  

My view of the question of school prayer aligns perfectly with that of Justice Kennedy and Souter as laid out in Kennedy's opinion and Souter's Concurrence. I can copy and paste it here if you like.

Nope, no "interpretation." Your interpretation and my interpretation cancel each other out, leaving just the text. Explain, using just the text, how a speaker thanking Jesus in a public forum equals Congress passing a law.

Anonymous JI October 05, 2012 12:55 PM  

Vox, you are spot-on. The commenter obviously has never had any experience with lawyers. Ignorance is bliss and all that.

Blogger Dr_Demento October 05, 2012 12:59 PM  

I can see some limited use of ''case law'' to cover things that legislative law could not have foreseen. In the US the 1st Amendment could not foresee Child Pornography so when the law banning it was fought in the SC (by of course, the ACLU) it was upheld on the basis that if producing the material requires the commission of a crime the material is not protected. So-called 'snuff films' (where an actual on-camera homicide took place to produce it) also fail that test. But proving that is much harder.

Blogger James Dixon October 05, 2012 12:59 PM  

> My view of the question of school prayer...

George, a single individual "thanking Jesus in a pubic forum" does not equate to school prayer in the sense that the supreme court was considering the matter. You know this quite well.

Blogger James Dixon October 05, 2012 1:01 PM  

> In the US the 1st Amendment could not foresee Child Pornography..

I doubt that very much. Pornography has been with us throughout recorded human history.

Blogger cardo October 05, 2012 1:30 PM  

Lawyer!.

Anonymous George October 05, 2012 1:43 PM  

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Anonymous George October 05, 2012 1:45 PM  

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Anonymous Edjamacator October 05, 2012 1:54 PM  

Hmmm...I assumed he was speaking about school prayer decisions. My mistake.

Yeah, my question was kind of vague. I mean, here's the first time:

"I want you, George, to tell me how thanking Jesus in a pubic forum is the same thing as Congress making a law establishing a state-based religion."

And here's the second time:

"Explain, using just the text, how a speaker thanking Jesus in a public forum equals Congress passing a law."

I can really see the confusion between that and prayer.

I don't care who someone thanks, real or fictional.

No, it means you can't answer the question. You know what the only answer could be and you don't like it.

Rule #2 of the blog states in part "If you fail to back up an assertion when called on it, but refuse to retract the statement, understand that I reserve the right to delete the relevant comment and all subsequent comments you attempt to make. If you are asked a direct question relevant to the topic, then you will be expected to answer it in a straightforward and non-evasive manner; providing links in lieu of answers is not acceptable."

Now, if no one wants to delete your comments until you can answer the question or not, it's up to them. But you can't "interpret" the text to mean they can't, or that you should be rewarded for being a weasel. I mean, it's not like you're a judge or anything...

Anonymous George October 05, 2012 2:03 PM  

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Blogger Spacebunny October 05, 2012 2:04 PM  

George- if you are too stupid to answer for yourself, then shut up already. You won't be allowed to comment here again unless you can answer for yourself in your own words. Using links to bolster your opinion is fine, using links to answer is not.

Anonymous Noah B. October 05, 2012 2:05 PM  

"Fees of this sort are deceptive because they are based on a fundamental falsehood, which is the labor theory of value. They are primarily the result of government intervention in the economy, which creates artificial shortages that permit the government-protected fee charger to force the client to purchase the fee charger's time rather than the service he actually wishes to charge."

This is true, but it's the world we live in. Are people supposed to completely avoid an occupation because it happens to be regulated by government? I would happily see an end to all laws requiring occupational licenses of any type. Until that happens, I don't know what to do other than to try to make the best of the situation. One thing you're ignoring here is that people with occupational licenses cannot force someone to hire them, and the government seldom controls how a licensed professional is paid. If a professional comes up with a basis of compensation that is generally preferable, that professional has a competitive advantage in the market.

"Fee chargers often resort to a deceptive defense, by claiming that they must charge for their time because they don't know exactly how long it will take to provide the service. This defense is belied by the fact that products and services in markets permitted to be competitive are delivered despite the fact that their time-cost is unknown. For example, when I sign a book contract, I don't know how long it will take to write the book anymore than a lawyer knows how long it will take to resolve a legal case. I therefore assume part of the risk; the longer I take to write the book, the more my compensation per hour will be reduced."

It's not only that I don't know how long it will take to perform a service, it's that others are often in control of that while I am not. In your example of writing a book, you are in control. How much would you charge to write a book of indefinite length and in which the editor has discretion to make you completely rewrite it as many times as necessary to make it satisfy his particular tastes, when he has given you no hard criteria in advance that you must satisfy? Quite often, that is the nature of consulting.

Someone who charges a fixed price for an indefinite scope of work that's under someone else's control will not be in business for long.

Anonymous George October 05, 2012 2:08 PM  

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Anonymous Jack Amok October 05, 2012 2:17 PM  

Not at all. ALL games are developed on the basis of a flat fee. There has never, ever, been a publisher who paid a developer on the basis of how much they worked on it. In fact, it is my experience in game development that makes me certain that the legal sales and billing structure is fundamentally dishonest. Lawyers claim that despite all their experience and expertise, they can't correctly estimate their costs... meanwhile game developers are often doing things that no one has ever done before in the history of Man and doing it for a flat, pre-set fee.

I'm a partner in a game development studio, and almost all of our work-for-hire is for a fixed fee, which we've estimated based on what we think it will take to complete. There are two exceptions however.

One, most of our contracts are for a fixed fee to deliver the game (or "V 1.0" of it), and then convert to an hourly (well, actually we charge by the man-day) rate for ongoing support and additional development after ship. The rate is also fairly high, because in general we don't want to do this sort of work. It's impossible to estimate ahead of time because it's all at the whim of the publisher and the scope is elastic. But most publishers (understandably) want some sort of guarantee the game will get post-release support and we won't just dump it in their laps and dissapear. But the reality is that publisher can convert us back to a fixed fee by negotiating a follow-on contract, where we have the opportunity to define the work and make a new set of estimates. So it gives the publisher the choice - if they have a handful of ad hoc changes they want to make, we'll do the work at a daily rate and they can scope it however they want. If they have bigger changes and are willing to be pinned down on them, then we sign a new contract.

The other good thing about this is that it encourages the publisher to make decisions. When they're paying for their dithering, they don't dither very long, but if dithering is part of an all-inclusive deal, they dither like crazy.

The second exception is if someone brings us a bungled project they pulled back from the original developer and asks us to salvage it. Going in, we have no idea what sort of shape the code is in. It could be reasonable and just need a little work, or it (more likely) is a mess that will be exceptionally difficult to fix. Odds are it would be cheaper for the publisher to just contract with us to rewrite the game from scratch, but they can rarely do that as it would mean admitting they wasted every penny they paid the first company. They'd rather pay us more in order to claim they salvaged their initial investment.

In either case, I hate working at a daily rate, I much prefer working on a fixed fee basis. Whenever I encounter an obstacle, I feel shabby if someone else is paying me for the time it takes to figure out a way around it. Of course, obstacles are the norm in software, and I've got enough experience to expect them, but I still get the same guilty feeling.

Blogger James Dixon October 05, 2012 2:19 PM  

> How much would you charge to write a book ... in which the editor has discretion to make you completely rewrite it as many times as necessary to make it satisfy his particular tastes...

Never dealt with editor, I see. Let's just say that I've heard of exactly that happening.

Anonymous George October 05, 2012 2:19 PM  

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Anonymous Noah B. October 05, 2012 2:21 PM  

@Jack Amok

That's pretty much the way I do things too Jack.

Anonymous number1fanofjumpingtoconclusions October 05, 2012 2:28 PM  

I agree with Vox!

Anonymous VD October 05, 2012 2:30 PM  

I'm a partner in a game development studio

What platforms are you working on these days? I know someone who may have need of a decent development team. Don't answer here, just shoot me an email.

Anonymous VD October 05, 2012 2:33 PM  

How much would you charge to write a book of indefinite length and in which the editor has discretion to make you completely rewrite it as many times as necessary to make it satisfy his particular tastes, when he has given you no hard criteria in advance that you must satisfy? Quite often, that is the nature of consulting.

No more than I would for any other book project... because that describes pretty much every book contract ever signed. Publishers have complete discretion, up to and including rejecting the book as substandard and refusing to publish it.

Anonymous Edjamacator October 05, 2012 2:35 PM  

I never made this assertion.

Nice weasel, but there are enough of your posts left to show you defending judges who twist the Constitution. You just can't defend them based on nothing but the text. So "false" laws, those that are just wrong, can and do exist. "Interpretation" doesn't mean "truthful" or "right," especially when multiple "interpretations" exist.

Blogger rcocean October 05, 2012 2:35 PM  

As shown by the above deleted and un-deleted posts "George" isn't just stupid - he seems mentally disturbed. Perhaps not posting here would be best for him.

Anonymous Noah B. October 05, 2012 2:45 PM  

"Never dealt with editor, I see. Let's just say that I've heard of exactly that happening."

No, I haven't. But I can't understand why someone would put themselves in the position of being required to do a possibly unlimited amount of work for a fixed fee.

Anonymous George October 05, 2012 2:48 PM  

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Anonymous Noah B. October 05, 2012 2:56 PM  

"No more than I would for any other book project... because that describes pretty much every book contract ever signed. Publishers have complete discretion, up to and including rejecting the book as substandard and refusing to publish it."

Under what terms can you cancel the contract without breaching it if you believe a publisher is acting unreasonably?

Anonymous George October 05, 2012 3:07 PM  

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Anonymous Kickass October 05, 2012 3:43 PM  

A lady lawyer working on two accounts for me (highly recommended by the way) did not catch an illegal fee on one contract that I caught after looking at it for five seconds. She then sent me a bill for $1200 billed in 15 min incriments for things like "left message" and "opened and read letter". I hired another lawyer who advised me to send her a check for $400 bucks with a memo that read payment in full and a nice note firing her. Didnt even have to she didnt "feel" we needed a retainer at the beginning. The bad far outweigh the good, the good worth their weight in gold...but I have researched and put together evidence for everything myself from then on, often being told I should go to law school. Why, apparently almost everyone who goes there does a worse job then me.

Anonymous VD October 05, 2012 3:56 PM  

Under what terms can you cancel the contract without breaching it if you believe a publisher is acting unreasonably?

Give back the money and tell them you can't do the book. They'll usually be reasonable about it, unless you're one of their chief money makers.

Anonymous Josh October 05, 2012 4:28 PM  

The bigger secret, though, is how does one get paid not to write a book?

Anonymous Noah B. October 05, 2012 4:49 PM  

"Give back the money and tell them you can't do the book. They'll usually be reasonable about it, unless you're one of their chief money makers."

There is one big difference between your situation and that of many consultants, including lawyers. When you submit a book to your publisher, you have a product that has market value -- or at least, so you believe and hope. If the publisher pushes you too far, you can get out of the contract and take your product to another publisher or self-publish. Your publisher knows this, so unless you submit work they genuinely think is terrible, they're probably not going to push you too far. They know that if they suddenly decide that a story about elves discovering their inner homosexuality and finding a wizard who can help them have children together is more marketable than what you've written, and they force you to revise your plot accordingly, you're probably going to switch to a different publisher.

Many consultants, including lawyers, make and do things that only have value under very limited circumstances, usually to one particular client on one specific case. If their client is too critical of their work, it's not as though they can take all of the research, pleadings, motions, briefs, etc. and just apply them to another case. Come to think of it, that may be a bad example -- I guess there are a lot of them who do pretty much do that. But if a good lawyer is using documents custom written for a specific case, instead of fill-in-the-blank forms, they're useless on another case. In my case, plans I draw are almost totally useless for a site other than the one being designed. Many people have jobs where their work is of value only to one client -- accountants, doctors, prostitutes, etc.

Under the fixed fee for open-ended services model, you have recourse if a client becomes too flaky. Many of us wouldn't.

Anonymous Noah B. October 05, 2012 4:50 PM  

"The bigger secret, though, is how does one get paid not to write a book?"

Easy. Party a lot with lawyers before they become politicians.

Anonymous Noah B. October 05, 2012 4:57 PM  

I really apologize for the spoiler, BTW. It just slipped out.

Anonymous Idle Spectator Esq., Bendini, Lambert & Locke October 05, 2012 5:16 PM  

Dude, did you people watch that movie The Firm from 1993?

The billable hours scam is a major part driving the plot.


You know it's sad when Hollywood and that Scientology-tard Tom Cruise gets it exactly right.

Anonymous Daniel October 05, 2012 5:24 PM  

If the publisher pushes you too far, you can get out of the contract and take your product to another publisher or self-publish. Your publisher knows this, so unless you submit work they genuinely think is terrible, they're probably not going to push you too far -

Bzzt! Dead wrong. Quite the contrary: publishers, never the most scrupulous contract-makers on the planet, have doubled-down in the face of self-publishing: They aren't scared of it one bit, and are happy to release a potential midlist book producer to fend for themselves. There's a line of writers around the block just begging for contracts that:

Pay writers pennies on the cover price
Take over copyrights for the life of the product
Collaborate with agents to fix prices
and otherwise Bend the authors over spiked barrels and then tell them to start running

If you don't know an author who has been royally or modestly screwed in spectacular fashion by modern publishing contracts, then you don't know many authors.

And why is there such a line just begging to get into the potential low-rent brothel that is the modern publishing industry?

Two reasons:

1) Banking. Publishers are fairly good at loan sharking, which, in essence is what an advance is, with far more subtle collateral than broken fingers and legs. Authors (who are notoriously business avoidant) can get themselves into a heap of trouble (or, at best, business losses) by accepting the contracted terms of the advance, which is a loan against earnings. Writers think "Oh, since I never have to pay this back, it is like getting paid to write!" It isn't. More accurately, it is being given a no-interest loan that does not, in most cases, have to be paid back...yet it counts against future earnings.

The advance is a clever carrot - attached to a very sneaky stick.

2) Acceptance - a ton of people write books so that they can be validated, not necessarily to make money. Many authors are willing to trade solid business opportunity away for a myth.

See also: notoriously crappy contracts in the music industry.

That's it. If it were a rational world, traditional publishers would have developed more producer-friendly contracts in light of the new publishing environment, and the bad players in the industry would have had to fold up their tents and concede the field to independents and decent traditional houses who run a tight ship and don't lie about their sales.

But it ain't a rational world.

Authors are interchangeable. Content in general is coveted, but, when a mid-sized house is cranking out 40 books a month, with the hope that each of those books will make their money in about 6 weeks, one author striking a blow for his autonomy and offering his midlist book to another publisher...is not scary to the publisher.

In fact, it may not even be noted.

Anonymous Noah B. October 05, 2012 5:37 PM  

"If you don't know an author who has been royally or modestly screwed in spectacular fashion by modern publishing contracts, then you don't know many authors."

That's not my world, so I am definitely heaping on some assumptions here, perhaps bad ones. Still, if you're making the point that authors tend to get the short end of the stick when dealing with publishers, I don't see that as a strong argument that people in other professions should pursue the same contractual arrangements that authors do.

Anonymous Daniel October 05, 2012 6:09 PM  

Oh, yeah, no - not at all. I'm just suggesting that the notion that authors have a bargaining chip (content - a marketable product) to coerce publisher with is misplaced.

No way is the most common publishing contract a decent business model for the author.

Blogger Andrew Taylor October 05, 2012 6:09 PM  

I'm amused how K's interactions with his lawyer in Kafka's The Trial are just like this.

"Try to realize that this vast judicial organism remains, so to speak, in a state of eternal equilibrium, and that if you change something on your own where you are, you can cut the ground out from under your own feet and fall, while the vast organism easily compensates for the minor disturbance at some other spot--after all, everything is interconnected--and remains unchanged, if not, which is likely, even more resolute, more vigilant, more severe, more malicious. One should leave the task to the lawyers instead of interfering with them." (Mitchell trans., 1998)

Anonymous bw October 05, 2012 8:10 PM  

The bigger secret, though, is how does one get paid not to write a book?

+1

UnAccountable Lawyers and the Courts have been used as a back-door tyranny, taking some heat off of the vermin Congress.
Joe Sobran's Pensees covers the common sense aspects.

Anonymous Joseph Teach October 05, 2012 8:51 PM  

Hey, I'm just trying to make a buck too, and educate some young kids- check out my latest book 'The Fable of Bearack Obama' on amazon.com. Go to http://amzn.com/1479194778 and buy your own copy today!

Anonymous Stilicho October 05, 2012 8:54 PM  

The bigger secret, though, is how does one get paid not to write a book?

A couple of ways:

1) dig up (or make up) dirt on politicians who need to run for re-election. Send them a draft; or

2) Change your name to Stephen King, write some good books, develop a great reputation and following, sell the rights to those early books, write some really crappy books, get owners of the rights to early books to pay you to stop writing in order to protect your reputation and their assets.

First way is easier and does less real harm.

Anonymous Paradisum October 05, 2012 9:24 PM  

George: "Of course it authorizes things. Read the 21st Amendment, specifically paragraph 2."

AMENDMENT XXI, Section 2: "The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."

Would any of the lawyers here be kind enough to explain how this authorizes something?

Also, I did a word search for "authorize" (@ the National Archives) and it only occurs once in AMENDMENT XIV, Section 4: "The validity of the public debt of the United States, authorized by law. . ." This isn't an explicit constitutional authorization but a reference debt authorized by other laws. No?

Anonymous Toolbox October 05, 2012 9:52 PM  

I think the whole billing method issue is really just a symptom of a greater problem with the legal system. Alluded to in the OP, the user is held hostage by governmental interference (as with a whole host of "professions" these days) creating whole false economies. Where forever in before times, men represented themselves in court before the king, now there has to be an intermediary who has "passed the bar" keeping the common man out of court. Now, we do know that men can still represent themselves. But the procedures now are so unforgiving and complex lawyers routinely make mistakes and something like 90% of cases are won or lost on procedure alone. If a man does represent himself, he is routinely admonished by the judge of his "errors" (or not) and even though the judge knows what the man is trying to do, the judge is going to slam the gavel of "justice" down upon him to crush his case on procedural issues. This is de-facto a bar on access to the court. There is no justice (or little) done in our system anymore.

Another issue is the source of law. Though related, that is a discussion for another place and time.

BTW, this post and thread was awesome!

Anonymous Jack Amok October 05, 2012 11:40 PM  

Vox,

Sent you and email. Probably have to take a pass as we are already overbooked, but always good to talk, and thanks for the consideration.

Anonymous Jack Amok October 05, 2012 11:50 PM  

Toolbox is right, and so is Vox, the source of the problem is the rent-seeking guild nature of the legal profession.

It started with Hammurabi deciding to write down the laws so everyone could know what they were expected to obey. But of course, mortal man being imperfect, the written laws had flaw and could never anticipate every contingency in any event. So it is essential that written laws be interpreted on occasion, but the rot in the system is that the lawyer guild concocted the notion of the adversarial pursiut of the truth, which is fine in theory but utterly immoral in practice.

When there is a legitimate dispute over what the written law means, what we need are people of good faith seeking truth, but thanks to lawyering, we have professional debaters seeking to win and damn the truth (of course, they hamstered the fiction of the "adversarial system" into existence to give themselves a fig leaf). The need to keep their rice bowls full has caused the occasional need to debate the meaning of a well-written law to metastasize into a society-wide plague of intentionally obtuse law-making and contract creation. The gross inefficiencies, corruption, and substandard product quality common in the legal profession could only exist with the help of a government protected cartel.

In the grand sweep of history, we see example after...

I'm ranting, arent' I?


Blogger Francis W. Porretto October 06, 2012 6:06 AM  

From the opening strawman ("So anyone who has ever worked for wages at an hourly wage is inherently dishonest?"), I knew your correspondent for a liar and a cheater. I sincerely doubt that his clients truly "worship the ground I walk on."

Nearly all attorneys practice the "eight minute quarter hour." They bill in quarter-hour units, and any slice of time more than 7 minutes 30 seconds counds as one such. With a little attention to the clock and a careful arrangement of the file folders on his desk, virtually any attorney can bill out six or seven quarter-hours per actual clock hour.

We'd never tolerate this from any other occupation. But lawyers -- how they have corrupted the notion of "professional!" -- own the game and the rules; he who steps into any sort of legal morass is at their mercy.

I'll close with what Robert Ringer said in How You Can Find Happiness During The Collapse Of Western Civilization: "In all fairness, it's only about 97% of attorneys who are dishonest, negligent, and/or incompetent, yet they make a bad name for the whole profession."

Anonymous map October 06, 2012 6:50 AM  

I don't understand George. Of course judges can overturn legislative law and judge-made law on a whim. They don't have to give reasons either. Of course, they do run the risk of being overturned by a higher court and that can be embarrassing. Otherwise, yes judges have enormous discretion.

Blogger robwbright October 06, 2012 10:58 AM  

Vox:

First, a short (for me) response and a question.

"And finally, robwbright attempts to get lawyerly, which is always unwise when dealing with a superintelligence armed with facts and logic, at least outside the courtroom."

Now the question (Credit to my pastor who is a sometimes reader of your blog):

Is human superintelligence armed with facts & logic a legitimate source of authority?

Before you answer, allow me to appeal to another authority - higher than either of us... Note that God answers the above question "No":

He catches the wise in their own craftiness"; and again, "The LORD knows the thoughts of the wise, that they are futile." and "Therefore let no one boast in men."

A wise (and pretty intelligent) man once said:

"But may I never boast about anything except the cross of our Lord Jesus, the Messiah, by which the world has been crucified to me, and I to the world!

It is interesting that you always call out someone when they appeal to their own authority, but you CONSTANTLY appeal to and boast about your own superintelligence and consider that acceptable behavior.

Will you directly answer the question "Yes" or "No". It should be a simple question for a superintelligence to answer.

Blogger robwbright October 06, 2012 11:35 AM  

Now for my direct responses to Vox's accusations, etc...:

Vox stated: "I used the term "written law" because I am not addressing an audience of lawyers here, and there is absolutely no need to resort to legal jargon in order to make clear the difference between the statutory laws that are written and passed by the elected legislatures, (which is what most people understand the law to be)..."

Not true. Much/most of the general public understands the simple concept that cases from courts of appeals (i.e. "case law") are, in fact, "law". Roe v. Wade, the Obamacare ruling, etc... I suspect there are few in the entire country who believe that abortion is legal because a statute was passed to make it legal. Your superintelligence is stumbling around here, unable to admit that you were, in fact, imprecise in your original post. You KNOW that the general public understands that Court of Appeals cases are, in fact, law - you're just unwilling to admit it, because - if you do admit it - you will also have to admit that you erred in the original post.

As informal evidence that your term "written law" is imprecise and can be misunderstood by someone other than a lawyer, I submit that I just read your original section containing the term "written law" to my non-lawyer wife. She responded hesitatingly and said, "Well, ummm, he probably means laws that are put on the books." It took about 8-10 seconds for her to think and come up with that answer - precisely because your term "written law" is imprecise (She's IQ 123, so I'd assert that it wasn't a lack of her intelligence that made it difficult for her to understand a term which you assert was intended to be easily understood by a group of non-lawyers).

Blogger robwbright October 06, 2012 11:36 AM  

Vox stated: "which the lawyers in the system agree to mutually pretend are "case laws" possessed of a standing intrinsically superior to the legislative laws."

I know no lawyer who believes or pretends any such thing. Please refer me to one or more that do - if you can. All lawyers know that as far as level of authority, statutory law trumps case law in the system - and if we're given a choice between citing a statute in support of our position and citing a case in support of our position, we will ALWAYS choose to cite the statute.

That said, you are correct that judges sometimes trump statutory law with their rulings. And Courts of Appeals often over-rule those erroneous rulings - and sometimes they don't. I have no problem admitting that statutory law IS sometimes trumped by a Judge's ruling and then not overturned on appeal. It does happen occasionally.

Blogger robwbright October 06, 2012 11:40 AM  

Vox stated: "I have personally witnessed interpretive rulings repeatedly trump legislative law in several Minnesota and Federal District Courts, and there are no shortage of similar examples I could cite."

So you also have some experience by which to appeal to authority. How many cases? 5? 10? 100? Even if it's 100 cases you have personally witnessed, that's 100 out of millions. An occasional occurrence does not establish the fact that case law does trump statutory law as a practice.

Further, I don't think that by "trump" you REALLY mean that the Judge over-ruled the statute in most of those cases.

As I believe I mentioned in another post, statutes are often badly written and leave lots of room for interpretation. But a Judge making a ruling that interprets a badly worded statute in a way that you or I doesn't like is not, in fact, a trumping of the statutory law. You will rarely, if ever, see a judge's ruling trump the following clearly written statute:

-------------------------------

61-8B-3. Sexual assault in the first degree.

(a) A person is guilty of sexual assault in the first degree when:

(1) The person engages in sexual intercourse or sexual intrusion with another person and, in so doing:

(i) Inflicts serious bodily injury upon anyone; or

(ii) Employs a deadly weapon in the commission of the act; or

(2) The person, being fourteen years old or more, engages in sexual intercourse or sexual intrusion with another person who is younger than twelve years old and is not married to that person.

(b) Any person violating the provisions of this section is guilty of a felony...

-------------------------------

That's a concise and reasonably well written statute that is not easily subject to interpretation. If a person actually committed the acts described in the statute, no Judge's ruling dismissing the case is going to be upheld on appeal. That is what would be required for the Judge's ruling to trump the statute.

Unfortunately, many other statutes are not so clearly written and leave more room for interpretation. I do not know the particular instances that you refer to in your personal experience, but interpretation of a statute that left room for interpretation is - I expect - more than likely what you are more likely complaining of when you talk about case law trumping statutes.

Of course, statutes are sometimes actually overturned and then the overturning affirmed at the Supreme Court as a result of an initial ruling in a particular case. Or they're sometimes repealed by the legislature. But neither of those appears to be what you are talking about.

Blogger robwbright October 06, 2012 11:42 AM  

Vox stated: "we must assume that any judge or lawyer who uses the term "black letter law" risks appearing as if it's not even possible for them to have an informed opinion about it."

I can't recall a single judge or lawyer ever using the term "black letter law". It's a term reserved for academics in law school - which you would know if you were actually around the court system regularly. I cannot recall hearing that term used a single time by a lawyer or judge since 1997. Those of us who actually practice use the terms "statutory law" and "case law" on a daily basis - including in conversations with our clients - and those clients seem to easily be able to understand the terms and the difference between them.

Yep, I did appeal to the authority of my own experience (which is, admittedly, far from universal).

That does not change the fact that it is highly likely that I have more experience with the Court system than most if not all non-lawyers here - and the lack of familiarity of many here with the way it actually works has led to some of the mis-perceptions here.

Blogger robwbright October 06, 2012 11:48 AM  

And finally...

"I trust this demonstrates how feigning ignorance and confusion is a counterproductive means of attempting to rhetorically undermine an opponent, particularly when one is attempting to establish oneself as a trustworthy authority."

Nope, not a bit. I was NOT feigning personal ignorance and confusion. As you noted, I guessed what you meant - but I did have to read that section two or three times and think about it before I became reasonably certainly that by "written law" you meant "statutory law" - and I was never absolutely certain what you meant until you confirmed it. Come on, Vox. You're a writer. It's ironic that you complain strongly about judges interpreting statutes that are badly written, yet, you used a term and wrote a sentence that was more difficult to understand than it needed to be. Then you have refuse to merely admit that you could have been more clear.

It's a good thing you're not a legislator - or we'd have even more unclearly written statutes.

In my original post being critical of you, I was pointing out that your terminology was not precise and, therefore, might lead to confusion on the part of others. In fact, you WERE NOT precise and clear. You could have been precise and clear by using the commonly used terms - and spending one short sentence each in explaining what they meant if you actually thought people wouldn't know what the terms meant. Of course, you have revealed that you are not, in fact, familiar with the terms that are commonly used to describe the different types of law - because you keep trotting out archaic academic terms like "black letter law".

Again, your assertion that most people understand the law to be only statutory law is incorrect. Therefore, using the term "written law" to describe statutory law as a means to "dumb it down" for the masses is a bad choice if you intend to be easily understood.

Blogger robwbright October 06, 2012 11:50 AM  

map" "Of course judges can overturn legislative law and judge-made law on a whim. They don't have to give reasons either. Of course, they do run the risk of being overturned by a higher court and that can be embarrassing."

If they don't give reasons, they will almost certainly be overturned on appeal. Findings of Fact and Conclusions of Law are typically used in such a situation in order to establish the basis for the ruling.

Judges DO have discretion, but most of them don't like to be overturned on appeal. Thus, they USUALLY give their reasons.

Blogger robwbright October 06, 2012 12:51 PM  

"Fee chargers often resort to a deceptive defense, by claiming that they must charge for their time because they don't know exactly how long it will take to provide the service...For example, when I sign a book contract, I don't know how long it will take to write the book anymore than a lawyer knows how long it will take to resolve a legal case. I therefore assume part of the risk; the longer I take to write the book, the more my compensation per hour will be reduced."

You are comparing apples to oranges. In your example you use of writing the book, YOU are in control of the process of how long it takes to write the book.

The attorney's case is different because the attorney is not in control of determining when the case is "complete". First, Judges will not always allow an attorney to withdraw from representation of a client. That issue is outside of the control of the attorney.

Further, the client often controls when the case is concluded.

My office had child custody dispute between a doctor and a nurse (with a wealthy new husband). The parties started fighting with a 50/50 split of custody. The doctor was disrespectful to the court, really hard to get along with in relation to the nurse, etc... Doc was, at that time, represented by other Counsel. Doc's visitation was reduced to 5 days a month.

Doc comes to our office and we charge him a retainer of "x" to handle his custody case - with the assumption that if the retainer is used up, doc pays hourly. Doc willingly contracted to pay by the hour. Such a case would normally take 6 months to a year. Not that one.

It took 3 years to get him under control and eventually convince the Judge to give him 50/50 again - and the length of time was 95% as a result of the Docs unreasonableness and being hard to get along with. The amount of work by the hour far exceeded the initial retainer - and Doc refused to pay the excess - even though he signed a contract to do so. Doc was not satisfied with 50/50 and wanted the nurse's custody rights terminated - even though nurse had not done anything to justify that. Doc wanted us to keep filing motions and appeal the decision, etc... Doc held the firm hostage by refusing to pay the amount he had agreed to pay. He threatened to never pay if we resigned and he promised to pay if we continued.

Fortunately, he did eventually pay most of the bill. If we had agreed to rep him for a flat fee on a "normal" case schedule, the firm would have lost a lot of money - entirely because of his unreasonableness.

The book situation as you describe it is hardly similar. You said "the longer I take to write the book, the more my compensation per hour will be reduced" Based on your own statement, you are in control and you don't have a Judge or a client's unreasonableness to worry about.

Personal injury or medical malpractice are different - the case is over at end of trial and attorneys DO take those cases on contingent fee, DO assume substantial risk and DO lose money. So, when there is a possibility of a clear end to the case, attorneys will do something other than a billable hour agreement.

Vox, your position on this issue is ultimately that you want to prohibit freedom of contract. No attorney forces any client to sign the fee agreement. The client signs of his/her own free will. If they don't like the terms, they can go to another attorney (which happens fairly often) or they can represent themselves. Therefore, your entire argument is anti freedom of contract.

Of course, you will likely try to argue that the client has no choice because all attorneys do it the same way. Not true - I recently agreed to take an entire divorce for a $500.00 flat fee. Further, even if all attorneys did do all cases hourly, the client would still have a choice - they could rep themselves - and some here believe that would be as good, if not better, than retaining an attorney.

Anonymous John October 06, 2012 11:53 PM  

Daniel, or anyone else,

So how would a prospective author educate himself on publishing/contracts law? So he doesn't get screwed over after signing a contract. I don't know anything about law.

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