The Independent Contractor
I’m in the midst of a scientific study. A month ago I discovered the beginning of a spider’s web in our guest bathroom and immediately decided that it was the proper subject for an experiment.
The experiment? To see how long it would take our cleaning lady to discover the web.
To begin, you should know that the law contemplates two different kinds of workers: “Independent contractors,” and “employees.” If you control the “details” of your worker’s performance — things such as when they are supposed to arrive for work and when they leave, what they do while working, etc. — then the worker is your “employee.” On the other hand, if the worker chooses her hours and what she does while working for you, with you imposing only general guidelines and not the details of her performance, then the worker is an “independent contractor.”
I control absolutely nothing about our cleaning lady’s performance. She arrives on a day of her choice; at the hour of her choosing; stays until she feels like leaving, and, while she is here, does whatever she wants. (With one exception: the first forty-five minutes she plays with the dogs. They, at least, exercise some control over her activities. I certainly don’t.)
What’s more, she hides my toothbrush and toothpaste each week. And, if I have carelessly left them lying about, my moccasins and any book I happen to be reading are hidden as well. After she left last week, it took me fifteen minutes to find the book, ten for the moccasins, but only one for the toothbrush. She must not have been at the top of her game.
This week she arrived while I was watching an on-line continuing legal education program about good writing for lawyers. Each year, lawyers in my state are required to complete a certain number of hours of continuing legal education programs. Mainly this is to fool the public and, not coincidentally, to keep several people employed in an otherwise unnecessary bureaucracy. It also keeps a cottage industry going: Lawyers who can’t make a living in the real world travel around on the seminar circuit telling other lawyers how to do it. And, because every lawyer has to have a certain number of hours of these seminars every year, there is a paying, captive audience for these people whenever they go out on a raid.
Famous Trial Lawyer Perry Mason
Early in my career as a trial lawyer. I attended a seminar about trying cases taught by one of the national stars of the lecture circuit. During a break another lawyer asked me, “If he knows so much about trying cases, why isn’t he out there trying cases?” A couple of years later the lecturer actually tried a high profile case that made all the newspapers. He lost.
The idea behind the continuing legal education requirements is to assure that lawyers maintain a certain minimal level of competence. It works about as well as the cleaning lady. Good lawyers stay up-to-date notwithstanding any silly minimum requirement of annual seminars and bad ones don’t.
Not only are we required to have a minimum number of hours, we must have two hours of “ethics” instruction and one of “professionalism.” (Given its control over the details of our performance, we must be employees of the state Supreme Court.) Nobody can tell the difference between the two. As best I can tell “professionalism” means being polite to everybody, especially the judges who write all these rules and “ethics” means not cheating. Why we need three hours of instruction annually about that is a mystery. Good lawyers are ethical and professional and bad ones aren’t. No amount of instruction is going to help.
The Hawk's Book on How to Write
But, there I was, in my home office, listening to the “How to Write Like a Lawyer” seminar on my computer when the cleaning lady arrived. (Actually, to be precise — and the lecturer told me to write with precision— I should write, “attempting to listen.” Our bar association must still be using MSDOS. The program was always “buffering” during the most interesting parts. Oh, who am I kidding? There were no interesting parts. The guy didn’t even know he was in the home of Professor Henry Weihofen, or as we called him, “The Hawk.” He wrote the bible about legal writing and the lecturer mentioned him not once.) Anyway, I was trying to listen when, like I said, the cleaning lady arrived. This caused the usual eruption of noise from the dogs because she truly is their favorite human being. I thought the noise might be sufficient to destroy the spider web so I went to check. Although vibrating furiously, it stubbornly clung to the wall and ceiling. That spider does not need any “continuing web-building education.”
Returning to my seminar, I learned — over the noise — that when I write a brief I am supposed to outline it first, then write a detailed statement of all the facts in the case and, only then, begin arguing my case. That’s nonsense. Any lawyer who waits until half-way through her brief to start arguing her case might as well turn off her computer and go home. You start arguing your case in the first sentence of the brief. If you haven’t convinced the judge by the time you get to the “argument” section of the brief, you’ve failed and no amount of continuing legal education is going to help you or your client.
Anyway, the spider web is still there and getting larger. I suspect that generations of spiders will grow old in it. I’m going to start putting my toothbrush and books in it before the cleaning lady comes. Then she can’t hide them because she won’t see them.