the Zealous

18 Aug 20

We’re paid to be prophets.

When we study law we are not studying a mystery but a well-known profession. … The reason why it is a profession, why people will pay lawyers …, is that in societies like ours the command of the public force is entrusted to the judges …, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.

Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harvard L. Rev. 457 (1897) (emphasis added).

Contract drafting is an exercise in prediction. We are writing for an intended outcome, based on predictions we make about how a fact-finder, judge or arbitrator will process and construe the language we've written. It is no less true in this endeavor than in any other: collaborating with trusted peers, and opening ourselves up to meaningful challenge, is the best way to refine our craft and improve the accuracy of our predictions.
30 Jul 20

Knocking down a false, weak or misleading characterization of your opponent's argument is to engage in strawmanning. This kind of argumentation fallacy requires that the audience be ignorant or uninformed of the original argument to be successful.

18 Jul 20

In a study published in the Journal of Corporation Law, law school Professors Badawi and Webber examined, over a five-year period, takeover target share price changes in reaction to the perceived quality of the law firm(s) filing litigation challenging, on behalf of institutional shareholders, the fairness of the announced proposed merger or acquisition. The professors grouped the plaintiff firms into "high quality" and "low quality", based on a number of critieria, including value of settlements recovered and whether any of the firms were openly criticized by the Delaware Chancery judges as being, well, worthless leeches, basically.