• June 16, 2014

BabyMinnesota Litigator focuses on news and developments in Minnesota civil litigation but , from time to time, there is just nothing to say. What is a “content creator” to do? The internet’s hungry mouth commands round-the-clock feeding. And the internet is an infant that will never grow out of it…

The problem of the “24-hour news cycle” is particularly dangerous in all matters requiring deep and careful thought, deliberation, or the subtle measure of competing interests. Participating in the public discourse called “the news” is a risk factor for some lawyers, who are tagged as “authorities” and are dogged by journalists to help the journalists feed the baby. The lawyers, in turn, want to promote themselves, want to keep themselves relevant, want to boost their “Klout score” or their number of “Twitter followers.”

Many legal “stories” cannot be distilled into a few sentences or even a few pages. Even calling them “stories” presents a risk of dumbing them down to inherently misleading simplicity. True confession: I like to think of myself and lawyers in general as existing on some higher plain of mental sophistication than the hoi polloi. So maybe sometimes I, and lawyers in general, unnecessarily over-complicate things as a form of protectionism and/or self-aggrandizement. But, even allowing for the risk of that professional predisposition, I think it is true that the lawyers’ business is, in fact, complexity. If an issue is not complex, there is generally nothing for lawyers to say or to do.

This detour into navel-gazing was prompted by a recent New York Times article on the apparent fiasco at G.M. where a mechanical defect that posed a fatal risk went hidden, went “un-recalled,” while a dozen of people died as a result of the defect.

Under the June 7, 2014 New York Times headline, “G.M. Lawyers Hid Fatal Flaw, From Critics and One Another,” reporter Bill Vlasic writes that Professor Richard Zitrin, a professor of legal ethics at University of California Hastings College of Law, “said banning note-taking was not a standard practice in corporate law offices.”

Professor Zitrin has a mind-boggling resumé (including being a consultant for ABC television’s show, The Practice, which is just one of the indicia in his 14-page CV of authority). But Prof. Zitrin’s experience does not appear to include a single hour in any “corporate law office,” much less a sufficient number to opine on “standard practice” in “corporate law offices.”

Is it possible that Mr. Vlasic and/or Prof. Zitrin, under the pressures of deadlines and feeding the starving monster, over-extended themselves? (I note that Prof. Zitrin’s words are not directly quoted. We won’t ever know what he actually said.)

You can spend some time unpacking almost every word in this sentence, “Banning note-taking is not a standard practice in corporate law offices.” (What is “banning”? Is “discouraging” equal to “banning”? What is “note-taking”? Transcribing? etc. etc.)

Maybe we have to assume that the lengthy investigation of legal rock-star Jenner & Block attorney Anton R. Valukas into G.M.’s conduct on which Mr. Vlasic relied for his article is authoritative, definitive, and “the final word.” If so, then we must assume that the fired G.M. lawyers behaved badly and deserved to be fired.

Could it be, though, that another review by another investigator would have come out differently? Should we entertain the possibility that the facts might be more complicated and ambiguous than the simplistic system of our news cycle allows?

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