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Between Two Worlds:

When Law Becomes a Commodity

By Thomas J. McDennott, Jr.

Observe, Marsha White, confidently striding into this ornate

courthouse where she will take an oath of office to uphold the laws
of her community, her state and her United States. She will emerge
in a feio moments, a lawyer at last. She will stcpjorioard, not into
the bright sunlight ... but into ... the Twilight Zone! (Suitable Music)

I could
t be. If Rod Serling were with us, it
could be. He did it chillingly once before,
in one of the most famous episodes of
one of the most famous series in television
history. When Anne Francis, as Marsha White,
a profession. An' \\"{'moving away from a pro-
fession to become. indeed, a business. As
Marsha While mct.uuorphasized into a man-
nequin, are \\T slated (0 become graven
images of ourselves.
walks briskly into a department store, she The original meaning of "profession" was a
is ... a suburban matron ... a secretary on person who provided his or her expertise for
break ... a lawyer. We don't know But as she the good of the community at nominal com-
shops, the atmosphere in that store becomes pensation. Professionals were ministers,
more and more eerie, more and more weird, teachers, doctors and lawyers. "Profession-
until finally, we realize that Marsha White is als" had to be highly educated and had to be
both the human shopper and something else. willing to limit t.heir acquisition of worldly
She is between two worlds. She is human, and
she is a mannequin. '
And she is confused, as who wouldn't be
between two worlds. Are you confused as you
enter the new millennium? You should be,
because you've been told, perhaps ad nausi-
urn, that the practice of law is a business. You Thomas 1. Mcllerruott, J1: practices with Man-
have also been told that the practice of law is au, Phelps & Ptiitlips in Los Angeles and is a
a profession. Nothing could be further apart member of the Ediioruil Board of California Lit-
in concept or in practice than a business and igation

40 ••••••••••••••••••••••••••••••••••••
 goods. Professionals generally provide ser-
vices and, particularly, services that promote
the "better" things of life; spirituality, educa-
tion, health and peaceful co-existence.
Business, on the other hand, generally
moves commodities for a profit, as high a
profit as the traffic will bear.
My theme then is, as T. S. Elliot might have
intoned: "All is confusion. Nothing can be
done."
, To view the impact of
technologlj in turning a
profession into a business,
one need only look
to medicine. '
Or as Spack might have elaborated to Cap-
tain Kirk: "All is confusion! Nothing can be
done! We are doomed!"
Or as Seinfeld might put it for today's dis-
engaged: "All is confusion! Nothing can be
done! We are doomed! Or whatever."
What has caused the lawyers' descent from
a lofty professional to a bottom-feeding busi-
nessman? Is it technology? Is it something
else? Can nothing be done? Follow along.
Technology certainly has changed the
practice of law. In the last 40 years, we have
embraced the electric typewriter, the confer-
••••••••••••••••••••••••••••••••••••
ence telephone, the copying machine, the
word- processor, the computerized database,
the videotape deposition, the ASCII disk, the
laptop, electronic research, video-conferenc-
ing, the Internet, e-mail and electronic graph-
ics for the courtroom.
How much "better" are these modern mar-
vels than the manual typewriter, the one-line
phone and the overhead projector, which are
about all lawyers had 40 years ago? They are
faster. Is faster better in a contemplative pro-
fession? Admittedly, one seldom hears "the
best thing about Learned Hand's opinions is
that he wrote them really fast."
These modern marvels produce more facts
faster than could have been imagined 40
years go. But facts are not information, just as
information is not knowledge and knowledge
is not wisdom .:Do we still need knowledge
and wisdom in this contemplative profession?
Is this still a profession? Absolutely not, if you
attend a seminar of managing partners or
read the legal press. This is a Business, with a
capital "B" and damn proud of it. Lawyers
should be ashamed of two centuries of put-
ting on airs of "professionalism" while their
clients, businessmen all, not only tolerated
these pretensions but also made more money.
Is there a fundamental difference between
the business of business and the profession of
law? Yes, at least originally. "Profession"
meant dedicating one's life to the betterment
of mankind or society without much possibil-
ity of making a lot of money. Business. in-
volves creating, maintaining and -exchanging
property, hopefully, for a profit. Law allows
these activities to occur in an orderly manner
without bloodshed. Law applies civilization as
an overlay to the warfare of commerce. Law is
about civility, not business, just as literature
and art are about civility, not business. Civi-
lization and commerce can, and generally do,
go hand-in-hand, but they are not the same
41.
..-----------
thing.
To view the impact of technology in turn-
ing a profession into a business, one need
only look to medicine. The result of using
highly complex, immensely expensive ma-
chines like MRI'sand artificial hearts has been
to improve healthcare, reduce suffering and
prolong life. It has also raised costs to a level
that can only be supported by spreading the
risk; hence insurance, Medicare and HMO's.
The injection of vast amounts of private and
public money has created pools of wealth that
can be tapped by the imaginative. Thus, a day
in the hospital now costs $15,000 and you're
lucky to get seven minutes with your doctor
and then only if you're really sick.
Although medicine provides more cures
than ever before, the public is suspicious of,
and antagonistic towards, healthcare pro-
viders due to the immense costs of the ser-
vice and the perceived wealth of its practi-
tioners. These practitioners don't like it much
either. Ask any older doctor and he or she will
tell you that medicine is not a profession any
longer. It's not even much of a job.
Technology is not the sole cause of this de-
sire to turn the profession of law into a busi-
ness, although its high cost certainly puts
more economic pressure on lawyers. There
seems to be a desire to make law a "business"
just because it sounds, somehow, more re-
sponsible and more profitable. But the law is
not a business, and, at least as far as litigation
is concerned, could never be a business.
Why? Because litigation is government.
There's the plaintiff, the defendant and the
court. One third, the most important third, is
a branch of government that cannot now, or
ever under our Constitution, be made a "busi-
ness." So how can a litigator be a "business-
man" or "businesswoman" if the office is the
courtroom, a public charge, not a private one?
The answer is, he or she cannot.
42
Cfi
"... the notion that a business is clothed with a
public interest and has been dev~ted to the
public use is little more than a fiction mtend-
ed to beautify what is disagreeable to the
sufferers. "
That's the United States Supreme Court,
by Oliver Wendell Holmes in Tyson & Broth-
er us. Bomion, 373 U.S. 418, 446 (1927). If
stare decisis is still the basis of American
common law, we lawyers seem to be espous-
ing a view that was overruled before it was
adopted.
The main problem, of course, is with the
"customer." (If we're going to be a business,
we might as well adopt its nomenclature.) I go
to a professional for advice and if it's good, I
go back. r go to a business for a product and
if it's good, I buy it again at any place that sells
it the cheapest I have no loyalty. Why should
I? A product is a product.
And if WP. keep insisting that we are run-
rung a business, we may see our "pro duc t"
turn into a conuuodity. It is a axiom of busi-
ness that all products eventually become a
commodity, that is a product sold in bulk at
the cheapest possible price. Consider the
computer. 'Twenty years ago, a computer sold
for a million dollars and up. Today, one may
be free with a twelve-month subscription to
the Internet. Or the cell-phone ten years ago
sold for $4,000 each. Today, they are one cent
with a purchase of service.
Could this happen to law? Mark Maraia, the
principal of Mark M.Maraia Associates, thinks
so. Summarizing predictions from lawyers
around the world at a recent seminar in
Phoenix, Arizona, he writes:
"During the conference, there were predic-
tions that white collar jobs (which includes
lawyers) "ill drop by as much as 60% to 90%
\\itILinthe next ten years. Legaljobs won't just
mvsteriouslv disappear. What will happen is
m~re and more legal work will become com-
moditized, As that happens, what lawyers
charge for their services will drop by as much
~------------~------~----~
as 90%. That will make practicing law much
less profitable and it will trigger a mass exodus
from the profession. For example, there is a
website called "LegaIOpinion.com" which
charges a flat fee of $39.95 for an opinion on
any number and variety of legal issues.
Cheesy? Maybe, but it's going to impact all of
us. You may be thinking, it won't happen on
high-end deals or it will only affect transac-
tionallawyers. Guess again. It's certain to hap-
pen in every facet of our profession. It's simply
a question of timing."
, There seems. to be a desire
to make law a "business II
just because it sounds,
somehow, more responsible
and more profitable. '
Put aside the cheesiness and the confining
aspects of turning law into a commodity. What
about the public's perception that Holmes
nails in the quote above. Lawyers have sunk
so low in public esteem that the lawyer joke is
a cliche, but just when you believe it can't get
worse, it does. Here's Eric Idle of Monty
Python fame in his novel Road to Mars:
"Fame is a t.erminal disease. It screws you up .
worse than your mom or dad. Somewhere in
the late 20th Century, the pursuit of fame
became a way of life. Suddenly, everyone
wanted to be famous. Newscasters, journal-
ists, weathermen, astrologers, cooks, interns,
even lawyers for God's sake ... "
••••••••••••••••••••••••••••••••••••
Not only do we intend to be bad, but it's
damn presumptuous of us even to believe we
have the ability to be bad.
And it gets worse. In February of the new
millennium, we hit the furmy papers. It's one
thing to be the butt of a wry cartoon present-
ed to the New Yorker reader's rather flexible
mind. The mind of the furmy paper reader
tends to be blunt and the joke better be sim-
ple, obvious and universal. The dialog from
Hagar the Horrible:
"Doctor: Sometimes I'm embarrassed to be
making so much money as a doctor.
Doctor: I have to ask myself am I doing this to
help people or to acquire great wealth?
Doctor: As a matter of fact, it's bothered me so
much that I'm thinking of changing jobs.
Hagar: What would you be instead?
Doctor Something that would benefit
mankind without a thought of personal gain.
Hagar: Like What?
Doctor: Maybe a lawyer. (Stunned look on
Hagar's face.)"
Obviously, technology alone does not bring
lawyers down to the furmy papers. But it is
hard to discern what other social or econom-
ic forces would cause rational human beings
to declare themselves lepers. Marcel Proust
said:
"A fashionable milieu is one in which every-
body's opinion is made up of the opinions of all
others. Does anybody have a different opin-
ion? Then it is a literary milieu."
Since mine appears to be definitely a dif-
ferent opinion, I will illustrate what might be
happening with a literary stew:
"So law behaves like literature where one
fellow writes it this way and then every-
body has to do it because if one fellow can
do it and befamous then any fellow can do
it and be more rich and more famous than
the first fellow who we all say joys to him.
But the second fellow does not do it as well
as the firstfellou: and the thirdfellow copies
43
 the second fellow and so on until it's not
good at all. But so many fellows are doing
it that it must be right and it must have a
name and it is modernism until it is so bad
that it is post-modernism and then it is
neo-post-modernism or something even
more dreadful. So one law firm says this is
a business and maybe makes some money
and then the second law firm tries to copy
the first law firm but gets mostly the bad
part right and then the third law firm
copies the second law firm and so on until
law is something that must have a name so
the name is business and lawyers believe
it. Joys to them also. "
Can the law actually be turned into a com-
modity? Perhaps more simply than you think.
Take a securities fraud class action in which
99% of the cases are settled after 9 to 36
months of lawyer-intensive, expensive litiga-
tion. Damages can easily be calculated on a
computer by selecting a "true value" of the
stock and calculating the difference between
the selling price and the true value on a day-
by-day basis, and then multiplying it by the
number of shares sold each day. This may
take a day of computer time. Because of argu-
ments over the actual "true value," the length
of the class period, and the variable of "ins
and outs," there will be a range of damages as
opposed to an absolute number, but the range
will be accurate. The cost to estimate dam-
ages would be approximately $100,000.
Discovery could be conducted by three
independent "examiners" who would review
corporate records for five days, then decide
on a range of probability for liability, say
between 55% and 75%. The cost of this exer-
cise would be approximately $75,000. A third
input would be a computer algorithm which
calculates the random aspects of jury ver-
dicts, including a possible variable of no liabil-
ity. Input the three variables into a further
computer program that generates a result by
choosing and manipulating the variables as a
44 ••••••••••••••••••••••••••••••••••••
jury might do on a random basis.
The parties can then take that result and
enter other variables such as the financial
capacity of the defendant and the possibility
that the defendant will go bankrupt. There
will be a final number. 99% of the cases will
settle, just as they do now, at 1/100th of the
cost currently incurred. And note that not a
single lawyer is needed.
Why that's preposterous you say. Is it? This
computer-generated result is exactly the way
the Los Angeles Superior Court determines
alimony payments today in an area of the law
that involves real people who receive real
trauma from the result. There is no consider-
ation of fault, common need, common goal,
human impact, no input of judgment or wis-
dom, no arguments by the lawyers, just a
computer program.
Nothing can be done. Or can it?
First, let's stop calling our profession a
business. Let's start emphasizing the civilizing
aspects of the law and the judgment neces-
sary to implement it. Second, use technology
as an "end" to the practice of law, not as an
end in itself. Stay away from giving free ad-
vice on the Internet. Stock transactions that
yielded $150 for the broker one year ago now
yield $7 thanks to the Internet. Throw out the
technology that isn't really useful. Third, get
some pride. Business is business and it's for
businessmen. Law is a profession and it's for
lawyers. Law requires judgment, imagination,
civility, diligence and prescience. Don't un-
derestimate how these qualities may be
incompatible with merely making money.
"Life in a Dwelling One Jo Square." That's
the euphonious title of a Basil Bunting poem.
A "jo" is Japanese for ten feet. "Life in a
Dwelling One Jo Square" is so mellifluous you
may remember it. That's what the legal life
will be like when law becomes a commodity.