Subject: fx-lawyer

From: Fred Zimmerman <[email-masked]>
Date: Sun, 10 Apr 1994 09:01:05 -0400

Hart and Sachs, THE LEGAL PROCESS, @ 198

A lawyer is "an architect of social structures," an expert in the design
of frameworks of collaboration for all kinds of purposes, a specialist
in the high art of speaking to the future, knowing when and how to try
to bind it and when not to try at all.  The difference between a legal
mechanic and a legal craftsman turns largely on awareness of this point.

Anyone who adopts a plan for the future commonly makes a choice among a
great variety of possible courses of action.  A complex of variables
affects this choice among variables.  Even if the exercise of a legal
power is not involved, three types of problems are usually presented:

First, what is the objective to be sought?

Second, what is the most promising means of accomplishing it, judged by
what is now known about the circumstances, existing and probable, which
are relevant to success?

Third, what contingencies now unpredictable may jeopardize success, and
what is the best means of guarding against them?

If the exercise of a legal power is involved, two additional types of
problems will be presented (in addition to problems of compliance with
procedural requirements for due exercise of the power, which presumably
will be the same whichever plan is chosen):

Fourth, which, if any, of the plans under consideration is outside the
scope of the power, or involves a disproportionate risk of being outside
its scope, in respect either of objective or means?

Fifth, when a plan is decided upon, what form of words is necessary and
appropriate to effectuate it?

... This view of the process of drafting may suggest the reasons why
sklled lawyers find that they can be more effective if they participate
in making the plan as nearly possible from the beginning... 

The lawyer who does this will find himself in a strategic and highly
responsibile position.  He is the principal expert among the
power-holder's advisors on each of the last three groups of problems.
As the plan takes shape, his advice on these matters will constantly
channel judgment on the first two, even though its direction is largely
negative rather than positive.  ... 

In this strategic position, it is natural for the lawyer to participate
also in working out the discretionary aspects of the plan--the questions
of business or governmental policy which may be involved.  How well he
can do this depends partly on his familiarity with the details of the
particular field of activity to which the arrangement relates.  But with
or without prior familiarity he may have, here also, a specifically
professional contribution to make.  If conflicts of interests or of
views are involved, the lawyer's skill as a negotiator is brought into
play. 

This means more than tact and a nice smile.  By force of his whole
training, and by force it should be of every professional instinct, the
lawyer is an expert at finding the common ground among disputants who
are interdependent, and so developing the most fruitful basis of
cooperation among them.  In small matters as well as large, the lawyer
should be a specialist in making the pies of social living larger.