May 12, 2020

Lawyerizationvocabulary for lawyer involvement and influence

In health we have the concept of “medicalization”, the process of seeing, classifying, and handling problems as medical problems through doctors and hospitals, pharmacists and pharmacies, therapists and treatment centers, other professionals and their institutions. In law, we sure could use a good vocabulary of “lawyerization”, the process of treating problems as legal problems for lawyers, judges, and the legal system more broadly to solve.

The first step toward lawyerization is involving any lawyer at all. Thankfully, most potentially legal issues get resolved without lawyerly intermediation. But even as a lawyer who only comes into the picture after this first step is taken, a good deal of my work boils down to advising on whether, when, and how to further lawyerize a problem. We can put some milestones along that path.

Say two sales reps, one for a market leader and one for an upstart competitor, both attend a trade show. The market leader’s rep notices the upstart using her company’s name and logo in head-to-head comparison ads and posters.

Partial lawyerization involves a lawyer advising at least one side of an issue out of sight of the other side. If the market leader’s sales rep reaches out to her company’s lawyer by e-mail, the issue becomes partially lawyerized. At least one side, the one talking to its lawyer, will begin to see the issue at least partway in legal terms. Not just “they’re using our logo” but “they’re infringing our trademark”.

Stealth lawyerization involves lawyers advising both sides of an issue backchannel. If the market leader’s rep makes an accusatory comment to the upstart company’s rep, who then sends an e-mail to his lawyer for reassurance, the issue is stealth lawyerized. Both sides begin to see the issue at least in part as a dispute about trademark infringement.

Full lawyerization involves both sides communicating to each other that they have lawyerized the process. If the upstart company’s sales rep sends an e-mail to the market leader’s vice president, loudly dismissing the accusations as ridiculous and copying his own JD, to which the VP responds, copying hers, the issue is fully lawyerized. Especially if the lawyers then begin talking to each other, in front of their clients or separately.

Lawyerization is complete when lawyers do most of the talking. This may look like cease and desist letters and responses, and eventually a legal complaint and subsequent pleadings. Or it may simply mean e-mails or phone comments from one lawyer to another. Not just the issue itself, but the details and circumstances involved, start to get expressed primarily in legal style.

Aspects of the lawyerization process make it something of a slippery slope. One of those is “leakage”, the tendency of clients’ language, style, and posture to skew more and more quasi-legal, the more they talk to a lawyer on their end. The receiving end often picks up on subtle changes of tone and framing before the sender does, registers them as escalation, and reaches back for more involvement of their own counsel. The effect is often progressive, with both sides hearing and sounding more and more legal as time goes on.

In my practice, I often find it worthwhile to proactively police against leakage. For example, clients often ask me to take first draft of a written notice or response. I’m happy to do that work, but I often ask clients to accept an outline rather than a draft, or to read a draft and put into their own words, to avoid making them read or sound like I do.

I get the distinct feeling good attorneys I work across from do the same. Which means we sometimes end up conspiring to avoid crossing the line from stealth to full lawyerization. We know from experience that business issues that could become legal issues can often be resolved or simply made irrelevant by higher-level agreement between client representatives. And we know from experience that direct disagreement and frank talk of competing interests, which lawyers experience as boring and normal, gets many clients’ adrenaline pumping. Clients, as a rule, avoid conflict. Lawyers, as a rule, specialize in it.

Many lawyers also resist lawyerization reactively from time to time, when clients want to escalate or simply delegate responsibility for a problem, by setting the dogs of legal war upon their enemies. To a legal mercenary, there’s no business like perpetual war, and no fix for combat addiction—the more, the bloodier, the better—like permission to practice scorched earth. For some, the drug is money, and the high margin of billable-hour combat pay simply can’t be beat.

Both creatures have their uses. But both clients and lawyers should be aware that the state of a deal or a dispute is a function of two. Both under- and over-lawyerization can be costly and irreversible.

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