Lawyers have a lot of technical training and experience. They spend three years in a hybrid humanities / vocational graduation school, devote a few months to cramming a summary of one or two state’s laws into their brains, regurgitate and forget it all over two or three days, then spend a couple years learning, through bruising experience, archaic and frustrating — but utterly essential — issues like how to convince a prothonotary to praecipe a motion for disposition or how to suppress the fruit of the poisonous tree.
But you don’t hire a lawyer just so they can apply that technical knowledge. That’s a tiny part of why you hire them; most lawyers have either done those things a thousand times or can figure it out with minimal research.
No, you hire a lawyer for their judgment. Let’s consider two examples.
The internet exploded last week when Monica Gaudio posted a brief note on her LiveJournal account complaining that a small magazine (Cooks Source) had published, without Monica’s permission, a comparison of two medieval apple tart recipes she had written up a few years prior. After Monica contacted Cooks Source, she got an email back from the editor, Judith Griggs, which included:
Yes Monica, I have been doing this for 3 decades, having been an editor at The Voice, Housitonic Home and Connecticut Woman Magazine. I do know about copyright laws. It was “my bad” indeed, and, as the magazine is put together in long sessions, tired eyes and minds somethings forget to do these things.
But honestly Monica, the web is considered “public domain” and you should be happy we just didn’t “lift” your whole article and put someone else’s name on it! It happens a lot, clearly more than you are aware of, especially on college campuses, and the workplace. If you took offence and are unhappy, I am sorry, but you as a professional should know that the article we used written by you was in very bad need of editing, and is much better now than was originally. Now it will work well for your portfolio. For that reason, I have a bit of a difficult time with your requests for monetary gain, albeit for such a fine (and very wealthy!) institution. We put some time into rewrites, you should compensate me! I never charge young writers for advice or rewriting poorly written pieces, and have many who write for me… ALWAYS for free!
It hardly bears explanation that the above is wrong about “copyright law.” As Ken at PopeHat correctly notes, “Judith has, by the way, essentially admitted the elements of copyright infringement.” Worse, she’s admitted willful copyright infringement, which enhances the damages available to Monica for the infringement. 17 U.S.C. § 504(c)(2); see, e.g., Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 112 (2d Cir. 2001) (“Willfulness in [the context of statutory damages for copyright infringement] means that the defendant `recklessly disregarded’ the possibility that `its conduct represented infringement.'”) (quoting Hamil Am., Inc. v. GFI, Inc., 193 F.3d 92, 97 (2d Cir. 1999) (additional citations omitted)); Wildlife Express Corp. v. Carol Wright Sales, 18 F.3d 502, 511-12 (7th Cir. 1994) (same); RCA/Ariola Int’l, Inc. v. Thomas & Grayston Co., 845 F.2d 773, 779 (8th Cir. 1988) (same).
In short, Judith knew what she wanted to do, but she didn’t realize she needed a lawyer — not to apply particular technical legal knowledge (other than the basics of copyright infringement), but to tell her “no.”
As another example, Vanity Fair just published an excerpt of a book about the Conan O’Brien / Jay Leno / NBC battle for The Tonight Show, an excerpt that includes some insight into O’Brien’s strategic decision-making with his lead lawyer, Patty Glaser:
Finally, Glaser looked across the room to where Conan was sitting and asked him, “What do you want to do?”
… “I want to write a statement that says exactly how I feel about it. You guys are going to tell me that I’m giving up all my leverage if I’m supposed to go to another network or something, but I can’t wait. I don’t want to play games here.”
All his life, Conan O’Brien had lived through periods of debilitating self-doubt and insecurity, knowing that when the moment came to stand up for himself, when he was truly pressed against a wall, he would find a way to push all that aside, straighten his long Irish backbone, and be at his best. He described how much the show meant to him, the legacy of Carson, the offers he had passed up to get this chance, and how losing it would be crushing—and unfair. Because they were never really given a chance.
The words came freely; he composed them on the spot. …
When Conan finished, his group sat silent. Jeff Ross, his own eyes welling up, looked around and saw no dry eyes on the Conan team. Patty Glaser finally broke the silence. “I like it,” she said. She paused, then said definitively, “Let’s do it.”
Her quick assent was the last thing Conan expected to hear, but it stunned—and disconcerted—Jeff Ross. “Whoa, whoa, whoa,” he said. “Really? We’re gonna do this?”
“Why not?” Glaser said. “It’s from his heart. It’s what he feels.” She turned back to Conan. “Why don’t you write it, and we’ll look at it.”
That was all Conan needed to hear.
And that’s how Conan’s “People of Earth” letter came to be, and came to be published. He knew what he wanted to do, but he needed a lawyer to tell him “yes.”