Classic Lawyer’s Mistake

The SMG website features an interesting 7-minute podcast from colleague Marshall Van Alstyne, Associate Professor Information Systems, on IP and Open v. Proprietary Systems. Among other things he advises “don’t make the classic lawyer’s mistake” and equate “maximum value with maximum protection,” which he illustrates with a discussion of the birth of Google mashups. In a world of digital technology openness can enhance value.

Lawyers too often care more about not being wrong than about being right. We are trained to protect clients by erecting fences and installing padlocks, and overcoming that training requires conscious effort. Last week I had dinner with a friend who is in-house counsel for the regional branch of a retail mall development company. He wants to convince his client to save tens of thousands of dollars in legal fees by abandoning the typical, paragraph-by-paragraph slash-and-burn lease negotiation and focusing only on the narrow range of business and legal terms that go to the heart of each deal. “Why spend thousands of dollars negotiating condemnation and casualty provisions? They almost never matter.” It’s the “almost” that causes the problem. The company’s general counsel, back at HQ, will never agree to Steve’s proposal, which flies in the face of every lawyering-by-numbers manual and would require the company to change it’s risk-assessment culture.

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