King’s Counsel
Senior, brainy, court lawyers. The JC is lucky enough to know a few, largely because he shares with them a fondness for cricket. They are excellent men and women, to a one, but they engage in a part of the legal process of which the JC is constitutionally committed to steering as clear as he can: litigation. Not just because suing and being sued is hard, gives you a tension headache and is beset with fiddly, procedural bear traps, but because the road is strewn with absurd conventions, unarticulated rules of etiquette, and unspoken ways of behaving that you have to get formally; right, hang whether you were right in substance. That’s not just how the JC rolls.
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Office anthropology™
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In legal practice, court lawyering is golf you see, and the JC is a cricket kind of fellow.
And then there is the small matter that, for any proud contracts lawyer, even talking to a Queen’s Counsel — to any litigator, really — except one you are standing next to in the slips, or who is purporting to act in an “advisory capacity” (HA!) — is a confession of professional failure. We cannot notch our belt with our conquests; we have no kill emblems to paste on the fuselage. We are like dogs in the nighttime: you know us because we do not bark. We mark our serene performance by the lack of cuts, scrapes, bruises and abrasions on our pretty faces. Our measure of success is that our contracts are so clear no one would dream of litigating.
For the most part, financial services professionals know what they are about enough that their contracts — the “verbiage” — don’t wind up in court very often. When they do, it is generally as a result of some cataclysmic failure in the industry, where institutions that were supposed to have been immortal, indestructible and impervious to any kind of weakness turn out to have been run by utter morons. This happens every ten years or so; for the rest of the time the utter morons that run our institutions get away with it. But suddenly Lehman, you know. The litigation is conducted by someone — an insolvency practitioner — who will have barely the first idea about derivative contracts; and will be heard by another someone — a commercial court judge — who may not have even heard the word swap before.
Now, readers, exactly the same thing is true of litigators. They hate financial markets transactions. They’re so hard, they give you a tension headache, they are beset with fiddly, procedural bear traps, and because the road is strewn with absurd conventions, unarticulated rules of etiquette, and unspoken ways of behaving that you have to get formally; right, hang whether you were right in substance. It is much more fun cross-examining Mrs. Pinterman about her alibi, establishing the mens rea and objecting to things. I mean security waterfalls? COME ON.
Queen’s Counsel might see ISDA Master Agreements — quite a few of them at once — every decade or so, whenever a systemically important financial institution hits the wall. In-house legal eagles — people like you and me, my brothers and sisters — we live with them, animate them, give them life, every day of our working careers. So if you wanted to ask a down home expert how the mechanics in an ISDA Master Agreement work, you would go find someone in the doc unit. Do you see where I am going with this?
Now every now and then, the partnership of Allen & Overy, of Linklaters, or Clifford Chance (who between them wrote the damn things, back in the day, by the way) are presented with a question of profound importance on the construal of an ISDA Master Agreement or a similar contract form. Is a derivative really insurance?
Anyway, this is about a special kind of golfer. Now there are all kinds of hazing rituals and
By the way: never say “Queen’s Council”.