John’s interesting post below leads me to ask a definitional question, what is puffing? Some people believe it to be a broad term describing all dissembling in negotiation and other see it more narrowly, simply as exaggerating the positive qualities of an item. It sounds like John’s definition is the former, while David Hoffman, author of the article The Best Puffery Article Ever, is more along the lines of the latter. My old Blacks Law Dictionary from law school goes with Hoffman, which is how I discuss the topic, but this may be a case where popular use is the trump card. Years ago when discussing the definition of mediation Len Riskin said that how a term is used determines its meaning. Maybe the horse is out of the barn with regard to puffing. What’s your take?
Interestingly, the online version of Blacks does not include puffing in the words it defines.
I love teaching law students about misrepresentation in negotiation. I call this class, “lying like a lawyer.”
Of course, civilians (i.e., non-lawyers) regularly fudge the facts, let’s call it. While it might be nice if there were bright-line norms of scrupulous honesty that were universally followed, that’s never gonna happen.
I’m no expert on moral philosophy or the social psychology of lying, but I think that most people probably believe that some misrepresentation is acceptable and even justified. Students in my Lawyering course regale the class with tales of their perfidy, sometimes with pride rather than shame. Movie and television audiences seem to find lying endearing when sympathetic protagonists do it. (I base this observation on the fact that writers use this hackneyed plot device over and over and over again.)
In the legal context, the rules prohibit misrepresentation of material facts but permit puffing about one’s interests, positions, and general opinions. Art’s research with Jess Alberts suggests that some lawyers think it’s appropriate to misrepresent material facts in some situations. This can lead to useful discussions about what are material facts in particular circumstances and how lawyers can ethically and effectively handle these situations.
I think that puffing is especially challenging for law students and lawyers because they generally feel a strong duty to protect their (would-be) clients’ interests, which they feel can override other concerns. They seem to have a particularly hard time with puffing because it is legally permissible. Some can justify it because they may believe that “everybody does it” and the other side expects it. Some seem to feel that failing to puff is a failure to do their duty to their client.
Given these circumstances, I think it’s important to help students consider why they might not want to puff. In my classes, we discuss the fact that puffing can harm the clients’ and their own relationships and reputations, lead to future disputes, and make them and their clients feel bad because puffing is inconsistent with how they see themselves. (FWIW, we discuss strategies recommended in their text, such as evasion, distraction, and refocusing the discussion, which I jokingly refer to as “lying like a lawyer,” though they involve neither misrepresentation nor puffing.)
Based on new research by University of St. Thomas Prof. Neil W. Hamilton, there is another reason for law students and lawyers to be cautious about puffing. It could hurt their career opportunities.
Hamilton surveyed lawyers responsible for hiring in big firms, small firms, county attorney’s offices, and legal aid offices in Minnesota. He asked respondents to rate the importance of various competencies in their hiring decisions. Overall, the most important competency was “integrity / honesty / trustworthiness.” This got the highest rating for big firm and county attorney’s offices and the second highest rating for small firm and legal aid offices.
Of course, this term could mean a lot of things and it isn’t directly related to puffing. I suspect that, in practice, lawyers distinguish between what they consider to be reasonable and unreasonable puffing. If so, some puffing is not necessarily injurious to their reputations and employment prospects.
But these findings should prompt students to consider whether they really are expected to puff, what puffs are acceptable, and the consequences to them and their clients.
(More generally, I like this article because it reinforces my preaching that students shouldn’t expect that they can go through law school on cruise control and expect to learn everything they need to be a good lawyer and get a job. It provides practical advice encouraging students to take responsibility for acquiring the competencies they will need.)
Lauren Newell (Ohio Northern) has published “Redefining Attention (and Revamping the Legal Profession?) for the Digital Generation” on SSRN. The abstract:
With computers, text messages, Facebook, cell phones, smartphones, tablets, iPods, and other information and communication technologies (“ICTs”) constantly competing for our attention, we live in an age of perpetual distraction. Educators have long speculated that constant exposure to ICTs is eroding our ability to stay focused, and recent research supports these speculations. This raises particularly troubling implications for the practice of law, in which being able to pay sustained attention to the task at hand is crucial.
Research also indicates that the brains of today’s young people, the “Digital Generation,” may function differently than the brains of their elders because the Digital Generation have grown up immersed in digital technology. This suggests that the techniques today’s legal professionals might use to cultivate attention in the face of technological distraction could prove to be inappropriate for future generations of lawyers. When the Digital Generation are both the attorneys and the clients, it may be the practice of law — rather than the lawyers — that needs to change.
This paper explores the science of attention and explains why attention is important. Next, it introduces the Digital Generation and their relationship with digital technology. It then examines the connection between ICT exposure and attention and reviews several suggestions that others have made about how legal professionals should respond to the challenges ICTs pose to focused attention. This paper then takes the conversation in a new direction: It predicts ways in which the legal profession, rather than the legal professionals, will necessarily have to adapt to technology in the future. Finally, it offers thoughts about how the legal profession should view its relationship with technology going forward.