“It’s like selling insurance,” he told me as he pondered whether to accept the judgeship. He knew he would be losing half of his income, knew that he would become a government employee, knew that his international practice would be a thing of the past. Instead, he would be sitting in a black robe in a stuffy court room hearing people squabble over whether the heater worked in an apartment or whether the car’s air conditioner was under warranty. But he was probably going to take the judgeship and my friend was telling me why.
We were in the lobby of a hotel in New York, two ships passing in the night, he on the way back to San Francisco to likely resign from his firm, me to Italy to work with a family I knew that had problems with Trust administration. We were both waiting for taxis to take us to the airport and had run into each other that winter morning.
I looked at him questioningly. “Practicing law is selling insurance? Tell me how that’s the case.”
He leaned forward towards me on the too soft sofa. “Because no one wants to buy what we sell. They figure they have to. Figure they have no choice. But they don’t want it, would rather spend the money on almost anything else and that taints the entire relationship. There is always that tension there. Like buying life insurance. You feel warm and fuzzy dealing with the guy who sells you life insurance?”
I thought about it as he fidgeted with his airline tickets. I didn’t buy his thinking. “Life insurance is about death. I think that’s why people hate to deal with it. You and I sell power. And protection. We hone the contracts, the documents and the structures that allow our clients to do what they want to do. Death is normally not part of that.”
He shook his head, studying his plane ticket. “Naw, it’s not like that at all, in my experience. They figure they can do the business on their own, don’t need the damn lawyers getting in the way. Or they trust each other and think lawyers hurt the relationship. Or figure they will never need the lawyers so why bother with the big expense when the money could be spent on setting up the business or whatever. They are only seeing us because there is that slight chance things could go wrong.” He looked up. “Just like life insurance. No real difference. And deep down they dislike us for that.”
“Any smart business person knows he needs us. That we can make a huge difference in whether they make it.”
“Yep, and any smart person knows they need life insurance. But they hate buying it and they sure hate being sold it and told they need it and why.” He grinned. “Of course, when they see us after things have gone sour they love every bit of protection we give them. Then we are heroes. But until that happens…or if it never happens…they just see our fees like premiums for life insurance when you don’t die. A waste.”
I grinned back. “With life insurance, if you don’t buy it and then find out you needed it, you’re already dead…so you don’t know you blew it. Not true for what you and I sell. It’s pretty clear when you’re alive that you needed us a lot more when that contract clause you didn’t ask us about kills you.”
He sighed and looked out the lobby. “Yeah, true enough. But by then it’s too late for the client. They don’t have the clause they need and they are likely to lose. And they wonder why the legal system is so tough on them.”
He leaned back and sank into the couch, hands holding the ticket in his lap. “You know, when I started out, I thought I’d be the knight in shining armor. People coming to me desperate for help and I’d go to court and slay the dragons. You know what my client told me last week? That we’re a protection racket. He has to pay me the big bucks to protect him against the other lawyers like me. He was smiling…but I think he really meant it.”
“And he has a point,” I responded. “But he misses the lesson. He’s blaming the guy who is protecting him in a system that actually works pretty well. It’s one reason the U.S. has a business climate that is the best in the world.” I was getting warmed up now. “Try to do business in China or Russia or Brazil and you see quick enough that our legal system…our system of contracts… works far better than theirs…you can’t even get to court there, the judges are often corrupt and the contract that you relied on is often ignored. Here, at least, you may have to pay to protect yourself…but the payment results in real protection. You can make your contract to do pretty much what you want. You buy your protection and that purchase has value. You know the real difference in our legal system?”
He raised his eyebrows. I kept going. “We treat people like adults. We say if you want protection, grow up and buy it and if you are smart, you will buy the right protection. And it costs something. But it works.”
He grinned. “Yep…just like life insurance. Be an adult and buy some…but don’t expect them to like the life insurance agent.”
He stood up. His ride was here. “And these guys who write the checks think they shouldn’t have to pay for it. That a good and fair system should not require all this paperwork. If it weren’t for us lawyers, blah, blah, blah.” He held out his hand, we shook, and two weeks later he was on the bench.
And two years later I was standing in a garage wailing at my mechanic about the cost of a BMW clutch and he put his oiled rag down on the hood of the car and tilted his head, listening to me. Finally, he interrupted.
“I know you don’t want to buy it. I know you’d rather buy a trip to Hawaii. So would I. But with all due respect…grow up. Most everything you want and need you gotta buy. That’s life. “
And, as I pondered my reaction on the ride home I realized that the reason for my annoyance was not resentment at the mechanic…he was a good honest guy and I had worked with him for a decade. Nor was it my distrust of the car since it was one of the most reliable that I had ever owned. It was deeper.
It was my unconscious feeling that things “should go right” unless I personally did something wrong. And that, perhaps, was why we resisted and resented buying insurance…or lawyers.
Deep inside, I felt that the car should work unless I abuse it, that the business relationship should work without contracts if built on good will and trust, that the sink should not clog up if we use it right, that my health should be good if I do not smoke, overeat or fail to exercise. In more general terms, if you are a good boy or girl, you will be rewarded.
Silly, of course, but deeply ingrained. And particularly Western in outlook, I now realize. In most of Asia, they fully expect things will eventually deteriorate and go wrong and that one must enjoy the here and now since no matter what one does, the current good situation is eventually going to change. What makes Americans so inherently optimistic is their conviction that they can change their reality for the better and that the vicissitudes of life and luck will not make their efforts fail.
And when they have to face the far more likely truth that things do go wrong even if one does not err, they are likely to feel as I felt with the BMW repair: somehow cheated. I didn’t do anything wrong. Why do I have to pay for the repair? Juvenile, perhaps, but typical.
And selling legal protection or life insurance simply prepares for things going wrong, of course. No wonder it is a “duty” and expense one wants to avoid…but knows one must have the protection.
And like the ad for motor oil said: “Pay me a little now or a lot later.” Get the protection or take the chance that one will be unprotected if and when things go wrong.
I once had a French client who, used to business in China, insisted upon business only being cemented with a handshake, knew that I felt arbitration was critical for cost benefit in any business deal, but smiled when I insisted he put that in every contract and that every contract be written. “Distrust breeds distrust,” he would say.
“Trust but verify…and keep your powder dry,” was my retort.
His system worked for him for almost a decade and then the inevitable litigation erupted over a shipment and half a million dollars in fees later he bemoaned the tremendous expense of our legal system and the delay in obtaining a judgment.
“It would have taken six months and a quarter of the cost if we had arbitration,” I responded.
“Yes, but that would have required a written contract. Twenty years of doing this I never needed a written contract. It is your American method of business that forces it.”
“Yep, you are probably right. But guess what?”
“Yes?”
“You’re in America. Where contracts and lawyers matter. Where if you don’t protect yourself as a mature business person must, you will eventually pay the price. And one more thing…”
“Yes?”
“It works. That’s why you are doing business here and making a fortune. You learn the system, you pay the cost of playing the game…and it works.”
“In China this method does not work.”
“In America you buy justice…and that includes paying for efficient justice up front. We call that the right contract with the right provisions.”
“I hate spending money for what I may not need.”
I grinned then. “Yep, I know. Me too. But we are big boys…and just have to do it.”
He wasn’t happy. He shook his head with mock despair. But then he nodded yes.
As my mechanic said: That’s life.