The most common word in 5 common law documents is exactly what you think

I miss spreadsheets. There was always something so nerdily fun about trying to work out why an Excel formula wasn’t giving the right result. I can even remember the code you typed in to older versions of Excel to get access to a cool flight simulator game. It was Excel 97 and the code was to press F5, then type X97:L97 and hit Enter. Then, you hit the tab key, then held Control and Shift, and clicked on the Chart Wizard button. You then got to fly a little plane around on company time. I should add, this was before Facebook and high speed internet and recaps of The Walking Dead minutes after it aired and me having friends. Ah, 2004, I miss you. Except for the no friends part.

Now, like all lawyers, I live in a world of words, and Word, and .doc, and .docx, and PDF and so on. Today, I reviewed several 150 page loan agreements because I get paid to do so (or am meant to get paid – PAY YOUR BILLS CLIENTS) and make very complex legal arguments on drafting. These include such gems as:

‘what you have drafted is not market standard and our client will not accept it’

and

‘you need to add the words “acting reasonably” to any clause that gives your client the right to take action against our client in this document’.

I know, law is so sexy. Who needs friends when I can use words like ‘henceforth’ and mean it.

Like my own speech patterns, where I seem to say ‘I don’t disagree’ and ‘greatly appreciated’ way too much, legal documents tend to have a number of phrases or words that crop up again and again, regardless of the type of document or transaction.

That got me wondering – what are the most commonly used words in some of the more widely used legal documents?  Hey, I’m bored, let me find out.

I have to set some ground rules for this experiment.

Firstly, I need to get a life after this. Seriously, what am I doing?

Secondly, particles like ‘a’, ‘the’, ‘an’ ‘its’ and so on are excluded from the count because, while useful, they are boring and probably expected to come up a lot of times. I also excluded ‘document’, ‘agreement’ and ‘deed’, as all these documents repeatedly say things like ‘this document’ or ‘this agreement’, so these words skew the results.

Thirdly, I will go with five documents I regularly see as part of my practice. There is no science to the selection of these documents, I just have them handy. They are:

  1. the Australasian Loan Market Association Syndicated Loan Agreement
  2. the New South Wales contract of sale of land, with what I consider to be some pretty standard special conditions
  3. A share purchase agreement for shares in an unlisted company
  4. A privacy policy for a major international company
  5. In the spirit of multinational relations, a US law governed aircraft leasing agreement. This is the longest, by the way. 459 pages of closely spaced, 10 size font, text with no formatting and little in the way of numbering or headings. Ah, America. Clear legal drafting must fall within the same category as the metric system for you guys – you have heard of it, but refuse to acknowledge it.

And the results are…

Want to guess?

Still reading this?!?! Thanks so much, I’m touched.

The top 3 words used in these sample documents are:

NUMBER THREE

In third place, with a total use across all 5 documents of 770 times is: other.

Yes, lawyers like to create options, alternatives and confusion. It’s how we justify charging so much per hour. So rather than saying ‘let’s go to the beach’, we will say ‘let’s go to the beach other than on a day that is a weekday other than when it is a holiday period other than when guests are staying with you for said holiday period. Other.’

SECOND PLACE

In second place (‘Second comes right after first’ – Buzz Aldren), with a total use across all 5 documents of 891 times is: under.

This one threw me for a bit, but then I took a look at the documents and they do say things like ‘under this clause’ quite a lot. It is wunderful.

FIRST PLACE

And our winner (seriously, you’re still reading?!), coming in with a massive total of 1,024 uses across the above 5 documents is: party

Everyone is a winner with party!!!!

Not that anyone ever invites me to their party *sniff*

FUN EXTRA BONUS

Just for fun, I ran the same test on just the US law document, to see whether there was a different outcome from that set out above. And the result? You’re not going to be surprised – the US loves their legal jargon:

In third place: indemnitee

Second place: trust

Most used word in my example US law document: participant

That third place is pure American. It did not come up once in any of the four Australian documents.

And, bizarrely, the words ‘erect’, ‘solicitation’ and ‘pubic’ (which I think is a typo, but given the source of this document, cannot be 100% sure), all arise once in the document. Those naughty Americans.

Happy Easter everyone. Thanks for all your support and peace, love and respect to you all.

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Stop comparing yourself to others. Set your own goals.

My recent post on performance reviews got me thinking about the competitive nature of lawyers, and the way in which they invariably compare themselves to their peers. It is a sad fact that lawyers are almost compelled by their profession, and the way in which it assesses performance, to compare themselves to others, and this brings with it an incredible amount of stress and anxiety for almost all lawyers, regardless of their speciality, position or the firm they work for.

To take a simple example, the classic billable hour. I remember all too vividly the feeling of not meeting my billable hour target despite long hours and weekend work, while others in my team appeared to met and exceeded their target with ease. It made me feel insecure, inadequate and worried for my job.

The irony, of course, is that there were times when I did exceed target, and those that were exceeding target fell behind. Suddenly, roles and perceived ranking were adjusted. The next week, adjustments happened again. And it keeps on going in its insidious and destructive way, like some sort of workplace anxiety tornado.

The billable hour is the standard measure for workplace performance, and I know that many lawyers cannot help but sneak a peak at their peers’ hourly figures to see how they compare. Quality of legal service, skill in negotiation, client business development; none of these things matter when we can simply use billable hours to rank ourselves with other lawyers in our team or firm.

What exacerbates this behaviour, in my view, is the personality of those who gravitate towards the law. They are all high achievers, used to long hours alone studying and working, relying on their own skills and ability to achieve. Some lawyers I’ve worked with in the past also admit to fear of failure as the biggest driver for them at school and university, and that fear led to a singular focus on achieving the highest possible results in tests and assessments.

Getting into law at university is not easy (although perhaps not as hard as it once was, although that’s another topic for a later day). Once you enter law school you are competing against some of the very best and brightest, who have also got into law school because they are focussed and, usually, competitive (whether with others, or with themselves). And that continues through into the law firm environment. All lawyers are highly intelligent, and many have very similar personality traits.

The result is that we end up comparing ourselves to people who are almost a mirror image of, well, ourselves. I’m not saying that lawyers are all the same. Of course, we are all beautiful butterflies who have our own strengths and weaknesses, our own personal lives, our own history and our own future. But, I am sure you will agree, we are also all highly driven and inherently anxious about how we rank against our peers, because that’s what a law firm environment does to people like us.

I have been there. The fear and anxiety has not left me just because I work for myself and have no-one to compare myself against any more, whether by way of billable hours or otherwise.

And I cannot offer any solutions or suggestions to others who feel this way.

What I can say, and what I hope anyone reading this who feels this way, is that you are amazing. You are talented, driven, kind, intelligent and friendly. You would not have got into a law firm if you didn’t have these qualities. I know you can’t really judge yourself on your positive qualities as easily as you can your supposed negative qualities, but please try it once in a while. Remind yourself that you are comparing yourself to the best and the brightest, and to people who are all too close to the type of person you are. And guess what? You’re equal to them, but also unique and incomparable. It is your own individuality that is the true measure of your personal success and your success as a lawyer.

I know it sounds trite, but make your own internal performance goal one that focusses on your many positive qualities. And remind your colleagues of their positive qualities too – trust me, they are just as anxious, concerned and stressed as you and would love encouragement. Help them, help yourself, and continue being amazing.

Wow, I’m a really bad motivational writer. And hey look, I just did what I told you not to do. Told you it never really leaves you, but I’ll try and focus on my positive qualities instead. I’m kind to puppies, I guess.

From the mouths / keyboards of F2F charity workers

I have been a little quiet on my 2016 mission of doing something about face-to-face charity workers on the streets of Sydney, and apologise for that. However, I have not been (all that) idle in the last few weeks, as I have been speaking and emailing a couple of people who actually do this work. Yes, I have been corresponding with the enemy.

And you know what? They were all very lovely people who really, really didn’t like doing this work either.

Their insights were very interesting, and to me are a great summary of all that is wrong with the current state of regulation of the chugging market in New South Wales.

There is really one big company that employs chuggers on behalf of charities. And its name is…

 

Cobra Group. I kid you not. Look, they even have a website where they try and justify their existence.

As soon as I learned the company hiring and contacting chuggers was the same name as the big bad criminal organisation in GI Joe, the world of charity collection made a little more sense to me.

Cobra enters into service agreements with various charities to run the face-to-face and door-to-door charity collection operations on behalf of these charities. It is Cobra that does all the selection and hiring of chuggers, contracts with them, pays them, and takes a cut of the proceeds raised on the street by their workers before passing the balance back to the relevant charity.

I haven’t found any hard evidence to support this, but the people I interviewed seemed to think the money raised by the people on the street was split as follows: 20% to the chugger, 50% to Cobra for administration costs other than salaries / commissions paid to the chugger (that’s the previous 20%), and the remaining 30% to the charity.

One kind person even emailed me the job advertisement that Cobra uses when looking for new people to work as face-to-face charity workers. It is about what you would expect:

Thanks for showing an interest in the advertised position. After reading your application I’m delighted to be able to offer you an interview for this position on Monday 3rd March at 9am PLEASE DON’T BE LATE as you may miss your interview place. we will go over all aspects of the position and will answer any questions you may have. Address: [withheld]. Opportunity: Urgent position to fill, we are looking for you to start immediately; we will provide all training, no experience necessary. Big launch on a public awareness campaign for Amnesty International concerning everyone in Australia! I look forward to seeing you. Any problems or questions please don’t hesitate to contact me.

What it is like to work as a chugger

 

I will let the people I interviewed tell their story. Each has agreed to allow me to post their comments on condition of remaining anonymous. I have censored the more descriptive language as well, but I am sure you will be able to fill in the blanks.

 

Person 1: Payment

I can’t remember exactly but I was on around $700 a week. I only got commission for a sign up after I had signed up 7 people in a week. Then I got $50 commission a sign up. We had to sign people up to a $30 a month deal. The place I worked for had multiple charities they raised for. Lots of backpackers / travellers were doing it.

The managers get you to learn a script they’ve written and get you to nod, smile and agree lots with the person you’re trying to get sign up. Most of the managers seemed to be full of themselves like they had been reading “The Secret”. “If you believe you can do it, you can do it” type weirdos. Some people were making lots of money, especially the hot girls. Most were not but they get a constant flow of travellers to replace them so it’s ok.

The spots they stand in have all been organised with the local councils, and they have to book these spots for the days they want to work there. To be honest, they annoy the **** out of me too, and I really hated myself when I was doing it but I don’t think they should be banned, these people are just trying to make a living and helping a charity. People really need to chill out a bit, someone asked you for a minute of your time every now and then and you act like you were just assaulted.

 

Person 2: Life on the street

A lot of these chuggers are roped into the job via fancy marketing job ads that promise lots of travel opportunities, and lots of money. You end up getting to travel to Blacktown and Mount Druitt, and have to attempt to coerce some of the lowest income earners in Sydney to hand over their money.

Its generally commission based, one sign up is approx. $100 for the chugger. The aim is 2 sign ups per day. Only the best of the best will ever hit 2, and these are the ones who have sold their souls for money.

There is no regulation. These “companies” constantly change their names, but can sometimes be associated with “The Cobra Group” – googling that name will get you lots of hits. When you join, you don’t work for the company, you work for yourself as a contractor. They force you to create an ABN and sign lots of paperwork, basically freeing them of any liability and offering you zero protection – “BUT THINK OF THE MONEY YOU COULD MAKE!”

I did it for 3 days when I was 18 and fresh out of high school. It didn’t sit well with me that I was approaching people and making them feel uncomfortable and cornered simply to make quick buck. Also it was absolutely draining having to put on a smile all day long whilst people actively avoided me – like being rejected a thousand times.

If anyone reading this is job searching, you should be smart enough to smell these places from a mile away. Their job ads ALL HAVE CAPITAL LETTERS!!!! Interviews are very unprofessional, their offices are usually temporary / rented out, and they will often gloss right over you and feed you a spiel before asking you anything about yourself. You are often taken on a field adventure to observe other chugger superstars use their tactics on the public. Your “mentor” for the day might also walk into a jewellery or pawn store to look at expensive things, as if they have SO MUCH MONEY from this wonderful job to flaunt and spend on anything they like. If you ever find yourself in a place like this, save yourself the time and just leave.

 

Person 3: The interview process

The “interview” was in a group of around 10, there were backpacker-looking people. They asked questions like “why do you want to work for Amnesty”, general interview questions. I was desperate for a job at the time, so I said how I was part of the Amnesty group during high school, and did some projects relating to Dafur or something.

The money raising was for child soldiers… somewhere. Forgot which country, sorry.

They obviously knocked people back- the ones who weren’t that convincing, or didn’t speak English that well, or seemed tardy. There were some people who came to the interview looking quite casual (wearing thongs or whatever), and they were knocked back too. It was easy to guess which people were knocked back.

The second day I came in (training day) was when they went through their whole spiel of “you can go on interstate trips! We go on team-building camping exercises and tell stories around a campfire!”. The person leading it was someone who had started from the bottom and worked his way up to the top (of course…). We learnt about how to sell things (like asking lots of questions with a “yes” answer, so when it came to the final “would you like to donate” question, they would also say “yes”), and the whole commission system.

 

Thank you to everyone that agreed to let me ask them questions on this. It was a very interesting experience for me, and hopefully a helpful and insightful one for you, the reader.

IMG_0348

Video Games and the Law – No. 3

Ladies and gentlemen, I have found law gaming nirvana. And it comes in the form of a digital version of the late, great Jerry Orbach.

landOrder1

I spent a few hours playing ‘Law and Order: Dead on the Money’, the first in a series of video game adaptations of the incredibly diverse and longlasting Law and Order television show.

Oh, did I mention it also has the voice (and disturbingly weirdly proportioned body) of Elisabeth Röhm, who as you will all know played Assistant District Attorney Serena Southerlyn on the original Law and Order show until she… um… I can’t remember. Did she go into the witness protection program, or something? Anyway.

landOrder0

This game just oozes 2002 video gaming quality, which means lots of low resolution video, limited voice recordings so Mr Orbach seems to say the same things again and again, and multiple CDs (apparently – I played an online digital version and so should you).

Everyone will remember the opening monologue to each episode of Law and Order:

In the Criminal Justice System the people are represented by two separate, yet equally important groups. The police who investigate crime and the District Attorneys who prosecute the offenders. These are their stories.

And that is pretty much how the game is structured. You start off playing the sidekick to the absolutely amazing Jerry Orbach, and are investigating the murder of a stockbroker. Then, once you have a suspect, you switch over to Ms Röhm to live out your fantasy of being an ADA for the city of New York.

To make things more interesting, your initial investigation is subject to an overall time limit. So regardless of what you’re doing, if that time limit expires and you haven’t arrested someone, you’re out of luck. Or if you have arrested someone but spent too little time gathering up all the required evidence, you won’t be able to prosecute them successfully. I know, STRESSFUL.

The game itself is pretty much your standard adventure-style game in appearance, where you click at random things on the screen to interact with them (say, clicking on evidence to collect it), or selecting from various dialogue options when talking to other characters (say, interviewing a suspect). The style of game is actually pretty simple and straightforward, and if you’re at all familiar with the show you’ll be pretty used to the narrative arc the storyline takes.

landOrder3

I played it with a walkthrough as I am a dirty cheat, but I challenge anyone who is not a US lawyer to beat the courtroom scenes without one. I’ve said before that I am not a litigator and hate court work down to the very deepest part of my being, and this game makes you learn about US court process and rules in order to beat the court scenes. It is kinda crap, or at least less exciting than hanging out with digital Jerry Orbach.

You can still buy the actual original copy for investment purposes, and with the improving Australian dollar I strongly advise you to do so. Available here, thank me later.

Rating? 5/5, because Jerry Orbach.

 

PS – all photos credited to http://www.metzomagic.com/showArticle.php?index=465, with thanks.

PS – check out the system requirements. Does anyone under 30 even remember the Pentium CPU?

Pentium II (or compatible) 400 MHz, 96 MB RAM, DirectX-compatible 8 MB Video Card, 12x CD-ROM Drive, 700 MB of Hard Drive Space, DirectX 8.1 or later (on CD).

Need Help Writing your Performance Review?

Performance Review

There are many great things about working for yourself, such as being able to control your day and the way in which you want to work. Of course, there are also downsides as well, such as occasionally feeling isolated and not having anyone else to blame if there is no skim milk in the refrigerator. Curse you, full fat milk!

There are two times a year, however, when I am particularly glad I work for myself, and that is at the time my friends and colleagues are preparing their yearly or half-yearly performance reviews.

Almost every workplace will do this in some form or another, whether it’s by way of an informal chat – for example:

Manager: Everything going OK?

You: Yes. I work so hard, though. Can I please have a raise?

Manager: *looks slightly pained* Well, times are tough you know. How about I keep your salary at the same level, but you work even harder and do the jobs of two other people who have just quit? That would be a good goal for the year ahead right?

You: ….

Manager: Great, I’ll let HR know.

or a formal, long, annoying detailed and always slightly confusing written performance review based on a template devised by the Human Resources team, or pulled off the internet.

At the last few places I worked, it was a combination of both of these. I was asked to prepare a formal written report that was submitted to my supervising partner, and I could also nominate other people I worked with to provide feedback. We then had (or were meant to have) a formal sit-down face to face meeting. That part never really happened.

I’ve also had to GIVE performance reviews to people, because someone at sometime mistakenly took me for being a boss who had underlings. Little did they know that it was the team around me that made me look good, and without them I was nothing.

So where am I going with all of this?

Performance reviews are terrible, but unavoidable. The worst part is starting them, and if you are anything like me you leave it until 8pm on the day before it is due. I feel for anyone going through this process, and so wanted to post three tips I have for doing your performance reviews.

I am not saying my tips are by any means perfect or universal to every lawyer or non-lawyer. If you like them, great! Please use them. If you don’t like them, well, at least you know what NOT to write. Right? Write. Right.

TIP 1 – GET CLIENT FEEDBACK THROUGHOUT THE YEAR

The best performance review I ever did was my last one at my former firm, where I simply put ‘See Attached’ in each of the categories I was meant to complete. I then attached client feedback forms I had gathered throughout the year. It didn’t really matter what the performance review category was, I just referred to the client feedback and hoped for the best. I was past caring at this stage, to be honest, and saw this as a lazy way of getting the performance review done with minimal effort on my part. After all, I was just about to resign.

For whatever reason, this method worked and I got great feedback (although no raise). Bosses and bosses’ bosses love to know that the people paying the bills like the people issuing the bills. Really, if clients like you, it makes it hard for the firm to say anything bad about you.

I would therefore strongly suggest that, during the course of each year, after you complete a deal, no matter how big or small, you pick your favourite person at the client’s business (or the client themselves, if they are an individual) and send them a short one-page feedback paper. In that paper, ask your client to write down a sentence or two of feedback ‘as it would really help me out’.

Most people are, by and large, halfway decent and will be happy to do this. I think about 90% of the people I asked ended up giving me some sort of response to my questions.

The template I used to send out was as follows – feel free to use and adapt:

1. How would you describe the quality of services provided by [lawyer]? For example, was [he / she] professional and polite? Did [he / she] provide timely responses and meet all of your deadlines? Did [he / she] understand your requirements and provide you with the legal advice you required?

2. Overall, were you satisfied, indifferent, or unsatisfied by the legal services provided by [lawyer]?

3. Was there anything specific that [lawyer] did that really had an impact on you? Can you give an example of where [lawyer] exceeded your expectations?

4. What do you think [lawyer] could do to improve his services to you?

Notice how all these questions are designed to get you positive feedback? Keep the responses on file and bust them out at performance review time.

TIP 2 – USE HARD FACTS

For lawyers, performance reviews really come down to two things – how many hours did you work and how much money did you make the firm?

Most time entry programs will let you work out your weekly or monthly number of billable hours. Take your monthly number of hours worked, divide by 30 and get a daily rate (round up if possible, but don’t push it too far).

If it is under the target billable hour number, don’t worry. Have you done non-billable work? Client development, presentations, mentoring or work for clients that was done fee free or pro bono should help justify why you are under the target.

Estimate how many hours a day you spent on these non-billable activities, and say something like ‘In accordance with our firm’s policy of doing pro bono work and going above and beyond to meet client expectations, I have also committed [x] hours per day to non-chargeable work. However, as the attached client feedback shows, this work was highly valued by the client and directly led to our firm being re-engaged by the client for significant billable work’.

The second thing to do is take your monthly number of billable hours, and times it by your (full) charge-out rate. That tells the firm how much money you made them each month.

If you want to be really tricky, divide this monthly revenue figure by your monthly salary to get your ‘multiple’ – that is, how many dollars you brought into the firm, for each dollar the firm needed to pay you. Somewhere over 4 is great! No pressure though.

TIP 3- LET YOUR BOSS KNOW THEY WOULD BE LOST WITHOUT YOU

Are you the person clients call when they have a problem? Let the firm know.

Are you the only one who knows how your partner files emails and where to find stuff on the document management system? Again, let the firm know.

Your aim here is to remind your reviewer/s that if you leave or are let go, your reviewer/s are going to be in deep poo, as the person that used to have their back and look after them is gone.

Don’t hold back here either. Most performance review forms have a section on organisational skills and complying with document management policies. Make it very clear that you are not just responsible for your own document management, but you also actively ensure that the ‘rest of your team’ (AKA your supervising partner) comply with such policies.

Firms are paranoid about getting audited by the Law Society on these things, so knowing there is someone in the team that has this covered makes you a very, very valuable asset.

Hope that helps, good luck with your performance reviews all!!

GoGet, Uber and AirBnB -Summary of new Service Agreements

Like many summer-scarf wearing, coconut water drinking, cold brew brewing 30-something hipsters, I have heartily embraced the use of services such as GoGet for car hire, Uber for when I am being super lazy or when getting a ride into the city (no public transport seats for this man’s bottom), and AirBnB when I wish to go to Byron Bay or Noosa or wherever the cool kids are hanging out these days.

When I subscribed to these services, I was almost immediately emailed a copy of each of their respective Service Agreements or Terms of Service, and did the thing that I am sure most of us do of ticking the box on the screen that said ‘yep, read and agreed to them’, even though I had absolutely no intention of actually reading those contracts.

However, due to my desire to avoid work give back to the community, I have read and summarised the key terms of each of these, and in particular highlighted what I think are the weirdest or unusual clauses in each – the ones you might actually want to take into account in deciding when and how to use these services

1. GoGet

You can access GoGet’s latest Service agreement here.

I always like trying to work out what firm prepared this, based on the formatting and styling. For GoGet, I think it is Clayton Utz, but prove me wrong people.

Pretty straightforward for the most part. Kicks off with the definitions, then moves into the nitty gritty like don’t crash the car, don’t let drunk people drive (or drive drunk yourself), don’t use it to teach your kid without telling us first, and so on.

I always like clauses like this:

You acknowledge and agree that in becoming a Member and/or accessing the GoGet services, you have read and accepted the terms of this Agreement.

I am no litigator, or even much of a lawyer, but surely that sort of clause can’t be used in court if the person has not actually read the agreement. I mean, what if it said ‘You acknowledge and agree that in becoming a Member you agree to pay GoGet $1,000 just for the privilege of reading this fine document’. That wouldn’t be binding, right?

Moving on.

Your main obligations under a GoGet contract are:

  • pay the required fees;
  • not let any other drivers use the car, unless they are approved by GoGet prior to them driving
  • not go over your booking time, or you’ll pay for it
  • make sure there is at least a quarter tank of fuel in the car when you return it (making it a bit like Russian Roulette as to whether you’ll be the unlucky person who has to fill it up or not)
  • try not to crash or do anything illegal – if you do, you’re responsible
  • Return the vehicle from where you collected it, in the same condition.

Oh, hello there, what’s this:

You acknowledge and agree that GoGet may monitor your usage of its Vehicles via its on-board technology monitoring system. The usage information gathered by GoGet will be stored and used in accordance with GoGet’s Privacy Policy

So you’ll be tracked wherever you go, and they can sell that information so long as their Privacy Policy allows them to.

Scary. But not unexpected. Let me know if you use a GoGet car to go somewhere like Ikea, and suddenly your Facebook page is full of Ikea advertisements.

2. Uber

What’s with the re-branding, Uber? It’s all a bit… well… ineffectual if you ask me. I quite liked the previous design and logo.

Let’s move on, though. Uber’s latest Service Agreement is available here.

It is hard to tell which firm might have prepared these. I suspect they were done in-house as they use lots of “…” around defined terms, which I think all law firms have now done away with and replaced with the loud, proud bold for defined words.

Uber comes in swinging in the very first paragraph, with the following:

Uber may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.

Summary: Don’t mess with Uber or else.

Now, this is interesting. Turns out Uber itself is not about ordering cars to drive you around. No, no. Instead, they make it very clear that they are a:

…technology platform that enables users of Uber’s mobile applications or websites provided as part of the Services (each, an “Application”) to arrange and schedule transportation and/or logistics services with independent third party providers of such services

And just in case that was not clear enough THEY PUT THE NEXT BIT IN CAPS:

YOU ACKNOWLEDGE THAT UBER DOES NOT PROVIDE TRANSPORTATION OR LOGISTICS SERVICES OR FUNCTION AS A TRANSPORTATION CARRIER AND THAT ALL SUCH TRANSPORTATION OR LOGISTICS SERVICES ARE PROVIDED BY INDEPENDENT THIRD PARTY CONTRACTORS WHO ARE NOT EMPLOYED BY UBER OR ANY OF ITS AFFILIATES.

What does that mean for you? Once you order the car, that’s Uber out. The rest of the relationship is between you and the driver, so if something happens to you, you’re suing the driver not Uber – at least, that’s what they are trying to do in their Terms of Service.

Again, I’m not a litigator. Do the use of capitals make things easier for judges to agree with? Uber is betting big on this being the case.

One final weird thing. Your use of Uber is governed by the laws of The Netherlands.

Except as otherwise set forth in these Terms, these Terms shall be exclusively governed by and construed in accordance with the laws of The Netherlands, excluding its rules on conflicts of laws.

Conclusion? A US lawyer drafted these. Only they would have such reckless use of capital letters and governing law.

3. AirBnB

Ah, AirBnB. So controversial, so useful. Thank you for allowing us to stay in a place where maybe 10 to 15 people a year sit on the toilet, rather than several hundred per toilet per room, which happens at your fancy pants hotels.

Terms of Service for AirBnB can be accessed here.

Crap, these are long. And the text gets smaller the further you go. They are really discouraging people from reading this. However, I am going to soldier on, bravely. It’s times like this I wish I drank alcohol.

Don’t drink alcohol to excess. It is not cool. Public service message over, for now.

AirBnB is adopting the Uber approach. They don’t provide accommodation or rental services. They provide an ‘…online platform that connects hosts who have accommodations to rent with guests seeking to rent such accommodations’.

See, phrases like the above is why no-one likes lawyers. Why not just say ‘We make an app, that lets you rent home from people who aren’t home, when you want to use their home.’. How hard is it to say that?! Admittedly, it uses ‘home’ too much, but the point still stands.

What is this? They used the same lawyers as Uber surely, as the next paragraph says:

THE SITE, APPLICATION AND SERVICES COMPRISE AN ONLINE PLATFORM THROUGH WHICH HOSTS MAY CREATE LISTINGS FOR ACCOMMODATIONS AND GUESTS MAY LEARN ABOUT AND BOOK ACCOMMODATIONS DIRECTLY WITH THE HOSTS. YOU UNDERSTAND AND AGREE THAT AIRBNB IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN HOSTS AND GUESTS, NOR IS AIRBNB A REAL ESTATE BROKER, AGENT OR INSURER. AIRBNB HAS NO CONTROL OVER THE CONDUCT OF HOSTS, GUESTS AND OTHER USERS OF THE SITE, APPLICATION AND SERVICES OR ANY ACCOMMODATIONS, AND DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW.

TOO MANY CAPITALS. I am sorry, gentle reader, it hurts me just as much as it hurts you.

Blah blah blah we can change fees and stuff… Blah blah you can’t sue us ever… Blah blah … wait, what?! You mean I can’t use AirBnB for purposes that are ‘…defamatory, obscene, pornographic, vulgar or offensive’.

That’s it, never using AirBnB ever again. Forget my petition against face-to-face charity collections, overruling this oppressive AirBnB condition that prevents me from using AirBnB for pornographic purposes (why not just say ‘naughty stuff’??) is my new 2016 mission.

Any other terms and conditions you want me to take a look at?

 

 

Inside law offices – Mills Oakley

Mills Oakley are one of the faster growing smaller mid-tier firms, which I think may be just about the most confusing and grammatically incorrect sentence I have written in some time.

I got the chance to go pay them a visit earlier this week and took a few photos while I was there, because I am weird.

They are located in the same building as Telstra’s Sydney head office, which is now just about what used to be the old Darryl Lea’s building on the corner of King Street and George Street in the Sydney CBD. Yes, right where all the light rail construction work is going on.

As I am highly covert, and easily intimidated by the large security desk at the main entrance to the building, I took the side entry off King Street.

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It has these revolving doors, and as I was walking into my little section of the door, not one but TWO guys got in the same section as me. I just don’t understand this sort of behaviour. That was MY section, I got it and it was MINE. It is not like it was the last section of the day either. The door would have kept on revolving, and they could have each had their own little section if they had just waited an extra 5 seconds. Apparently they are too busy and important for that, so instead I got the pleasure of being pressed up against the front of the glass of this door while two portly gentlemen leered over me from behind.

Please, dear reader, respect each person’s right to their own space in a revolving door entryway and don’t be like the two fools that I encountered on that fateful day.

This is a photo I took while silently raging about the gentlemen behind me. I hope you can feel the anger in every pixel.

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Once inside though, my mood improved, as they have lovely artworks along the walls that go into the lift area. The lifts themselves are controlled by snazzy touchscreen panels, however confusingly the panels are nowhere near the lifts, meaning that you have to push the button for the floor you would like, then run around trying to find where the relevant lift is. I had to try 3 times, although I am sure most of you are not as hopeless as I am with directions and will get it first or second time.

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In the lifts now. Nothing much to report here, other than this is a slightly meta shot of the lift as reflected in the mirrors in the lift. Yes, I accidentally took this photograph and did not have a better one to use. Sorry.

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Action time. Here is the lobby of Mills Oakley. Pretty nice, in a Spartan, monochrome kind of way. Note the black leather couches and beware – they make a distinct farting noise when you sit on them too quickly. I am sure this is to put opposing lawyers on the defensive immediately upon their arrival at the offices of Mills Oakley. Well played, sirs.

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The reception staff were truly lovely. They were suitably wary of a man purporting to be a lawyer but wearing jeans and a tshirt (and sweating more than he should be) arriving to collect some documents. But once we established some rapport, we got along swimmingly. Note this is not me in the picture. My posture is nowhere near that good, nor my hair so long and shiny.

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My journey done, it is time for me to depart. Thank you Mills Oakey, I give your offices 3.5 out of 5. A fine effort.

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The one thing I believe law firms need to improve. Now.

A few weeks ago, some very kind people who have moved from a law firm to an in-house role shared their thoughts on the differences in the way that a law firm manages their staff, versus the way a company manages their staff.

The differences that came through in these responses were very clear, and the message consistent despite the different industries that these people had moved into after their law firm life.

The overwhelming response was that working in-house was an improvement for the respondents. Many also commented that they took comfort from the more formal management and career structure that applied to them in their in-house role. They also found it refreshing that there were clearer communication lines, even if the cost of that was more meetings and management presentations.

Law firms could learn a lot from these responses. Importantly, law firms need to start focussing more on their own lines of internal communications. In my experience at several different firms, of different sizes and structures, the biggest consistent issue that I have seen, and about which my colleagues have also expressed frustration, is the lack of clear communications between the various management levels at law firms.

Put simply, I believe that law firms do not communicate in any meaningful way with their staff. This lack of communication has serious consequences for the firm and the individuals that work for it. I also believe that failing to communicate with staff is the biggest cause of conflict, inefficiencies and unrealistic expectations in law firms, and unhappiness and dissatisfaction in lawyers and support staff at law firms.

What law firms fail to recognise is that with the ability to recruit, and profit from, the very best and brightest, comes a responsibility and a moral imperative to ensure that lawyers and support staff at law firms are cared for, listened to, and given the opportunity to discuss their concerns and ideas with the most senior members of the firm.

Instead, what we get at law firms are people working their absolute hearts out with no clear idea of how they are performing against expectations, and management decisions made by a small number of managers or partners at a firm, in isolation from the wider staff group. If management decisions are communicated to staff, these are usually done at at quarterly staff meetings, perhaps, or in all-staff emails, and this is always done after the decision has been made. Under this model, the ability for staff to contribute to the decision-making process, or provide their input, is impossible.

Law firms need to find a way to better engage with their unique, amazing employees. Equally, law firm employees need to start communicating their concerns and ideas to their managers, supervising partners and to the most senior people in the law firm structure. This can only happen if law firms make a real effort to improve their internal communication, and create an environment where discussion and debate at all levels is encouraged.

I cannot offer any meaningful solutions on how law firms can better engage with their staff, as each law firm and the staff at each law firm is very different. Again, there is no simple solution. But identifying that there is a problem with lines of communication in law firms, and truly and properly resolving to work together to do something about it, would be a great first step, and not one law firm I know has done this in a truly unified, committed and honest way.

So what can we all do about this issue now?

To all lawyers and support staff at law firms: Tell the most senior people in your organisation what they’re doing wrong. Tell them you want to work with them to fix these problems, and offer real solutions that go beyond simply asking for more pay or a bigger office (even though we all know you deserve it).

Law firm managers and partners: Get rid of the idea of ‘us’ and ‘them’. Step down into the trenches with the junior lawyers and ask them if the way the firm is set up is letting them be the best lawyer they can be. Ask the support staff how they too can be supported, and what are the barriers preventing them from better helping or working with their teams.

To all at law firms: Work together to improve the way the firm communicates, even by a small amount, and I know that there will be financial, emotional and physical benefits for everyone.

If we do not take a first step, small though it might be, to improve the lines of communication and open discussion in law firms, and take it soon, then I fear that more and more lawyers will continue to be unhappy and unmotivated, that they will bounce between law firms (yep, that’s me) in the hope of finding something better, or that they will leave the profession entirely.

We can start to fix this issue now. Law firms just need to start talking more about talking more.

 

Video games and the law

Part 2 of my super exciting series on video games that feature law, or lawyers, or a courtroom or anything at all legal related depending on how desperate I am for source material at the time of writing.

Not today, though. Today we have a real law game. It even has ‘Attorney-at-Law’ in the title, so you know it is going to be a straight-up, unobjectionable, full bench approving legal computer game.

This one is particularly bad though. Just to set expectations, as I find I have to do all too often in my life. ‘Set the bar low, boy’, my father would tell me, ‘and even then, you might be setting it a little too high for yourself. Why can’t you be tall, dark and handsome like your brother here?’. Ahem. Moving on.

Want to play a game where the main character is voiced by Gary Cole, who is that guy from shows no-one in Australia watches like Veep? Apparently he was also in Suits, but I have never seen it so can neither confirm nor deny this.

How could you not want to play a game where this dude tells you what is the what.

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Want to play a game based on a cartoon that 6, maybe 7 people have watched?

Want to play a game on a system that had a brief shining moment of glory, when we all thought that Wii Tennis was the greatest thing ever until we realised it was pretty lame, and then no-one bought the system any more?

Well, your prayers have been answered, as I gave ‘Harvey Birdman, Attorney-at-Law’ a quick (very quick) play on the weekend, and boy oh boy was it amazing.

Quick slightly related side-bar: This was not an easy game to get hold of and review. Not looking for praise, just saying this is probably one of those games that people are going to sell for millions of dollars in 20 years’ time.

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By Source, Fair use, https://en.wikipedia.org/w/index.php?curid=15208993

 

It is almost identical (some would say too identical, but they would be IP lawyers) to Phoenix Wright, which I wrote about last time. Except this one has STREETFIGHTER CHARACTERS.

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I am not sure what to say about this game really. I played it through a… errr… unofficially supported means and the controls were crazy as hell. The videos were pretty good though, in a ‘my eyes they burn’ kind of way. Check it out here, at home, alone, with the lights off:

My rating? 2/5, and that’s only because I am being generous.

 

Law firm bathroom tips

This might just be me, but of the 7 or 8 law firms that I have worked at over my years as a lawyer, not one of them had what I would call a respectable level of bathroom cleanliness.

Maybe it is the stress of being lawyers that contributes to this. Maybe it is that all the reading and book learning, which means that lawyers have bad eyesight or reduced targeting skills.

Regardless of the reasons, it is something that has been perhaps the most consistent issue across all the firms I have worked at. Seriously, is it that hard to keep the bathrooms in a neat and tidy condition? Apparently it is. Have some respect people.

Therefore, I would like to take this Friday afternoon to share some techniques I have implemented to minimise the disgust and unpleasantness of the above issue.

Firstly, learn the cleaning schedules for your favourite bathroom. Many bathrooms in buildings will have a cleaning roster somewhere on the door or wall, where each cleaner marks that they have cleaned the bathrooms and the time at which they did it. Check this out, and work out the average time of day when the bathrooms are cleaned. Then, if you can, get in there 5 minutes after the cleaners have finished, as trust me, that room won’t be any cleaner at any other time of the day.

Secondly, and this is a bit more of a risky manoeuvre, but if you have a preferred stall (I know you all do), then put the seat for the toilet in that stall down at the start of the day, or just after the cleaners have left. Whenever it is cleanest. I know gentlemen, crazy talk! Stick with me on this one.

Most people, when faced with a known known (that is, a toilet with an open seat where there are no hidden surprises) will take that known option rather than risk a nasty surprise by lifting a toilet seat and seeing something in there smiling back at them. So if you close the lid, you’re utilising people’s natural fear of the unknown and hence will minimise the number of people that will use that toilet throughout the course of the day. Less users means (hopefully) a cleaner standard on average for your favourite thinking spot.

Of course, there is always the potential that you yourself will suffer a shock of exposing something that should remain hidden when you lift the seat, but I feel this is the exception to the rule and worth the risk.

Finally, and this is a mean trick and I would never personally implement it, but if you do have a favourite toilet and want to keep it all to yourself, print an ‘Out of Order’ sign out and stick it on the stall door or above the toilet bowl when it is clean. No-one wants to use a broken toilet so it will be yours for the whole day!

Just don’t use the disabled bathroom if you’re not disabled. There is no excuse for that. Ever.

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