On Sale, Motion to Suppress

The ripple of people buying do-it-yourself Wills appears to be picking up steam, not that it has anything to do with criminal defense.  But smart money is behind it :

Google Ventures is part of the group that invested $18.5 million in Rocket Lawyer, one of a growing number of web-based services that can spew out documents like wills, leases and incorporation papers for a fraction of what many lawyers charge. In a separate deal, its competitor, LegalZoom, raised $66 million of venture capital last month from Kleiner Perkins and Institutional Venture Partners, among others.

Don’t sneer. When is the last time anyone offered you $18.5 million?  One of the fundamental tenets of criminal defense was that our job can’t be outsourced to India, or reduced to a fill-in-the-blanks form, making us immune from these threats.  Yet, there are other, more insidious, cute slogans attacking our flanks.  From Keith Lee at An Associate’s Mind :

“[In the future] The lawyers who succeed will combine Wal-Mart Efficiency With Neiman Marcus Feel.”

So says Thomas Morgan, a law professor from George Washington University, to the Florida Board of Governors and the Young Lawyers Division board at their recent joint Palm Beach meeting.  This in the wake of the current upheaval in the general economy and the law market specifically. Globalization barreling around the globe, law schools churning out too many graduates, and the rise of internet-based legal services such as LegalZoom, TotalAttorneys, and RocketLawyer. All of them are combine to put more pressure on lawyers to deliver high-quality, low-cost legal services than has ever existed.

Adding insult to injury, a couple of lawprofs have proposed a solution to law schools’ inability to turn a student into a lawyer for their $200,000 tuition, suggesting that  schools open their own “law firms” where students can “practice” until they get it right.  Mitch Rubensteiin at Adjunct Law Profs notes the irony of having lawprofs who never practiced (and many of whom aren’t even admitted to practice) teach students how to be “real” lawyers.

On the other flank, Stephanie Kimbro, who is writing a book on unbundling legal services, asked me how it applies to criminal defense.  I responded that it doesn’t, it can’t, and that there is no ethical way for a lawyer to handled “pieces” of a defense and absolve himself of responsibility otherwise.

Yet, I can see the tidal wave coming.  Just as young lawyers ignore the reasons for disciplinary rules that conflict with their chosen lifestyle, the lure of cheap is  powerful, and there aren’t nearly as many lawyers going to Neiman Marcus these days as Wal-Mart.

The public believes in the myth that law is easy, and lawyers just make it appear difficult to justify the outrageous fees they charge.  Lawyers have to charge these outrageous fees to pay off their law school loans, or otherwise justify the cost of tuition and lost opportunity, to do routine work that any monkey could do.  And if the guild was broken, we would all be freed from the slavish yoke of regulators who are charged with protecting the monopoly.

The argument in favor of this fantasy is that 80% of the public will do just fine with fill-in-the-blank forms and a brief consultation.  The percentage is pulled out of thin air, but it’s not important since no one can accurately predict a failure rate that has yet to happen.  Simultaneously, we’re seeing a sharp increase in pro se litigants, bolstered by the occasional story of the litigant who prevailed against all odds, when lawyers failed them. 

What of the 20% who buy a form or an unbundled service, only to later learn that they’ve blown it and wreaked havoc with their lives?  The proponents say people are willing to take that chance in order to save money.  It’s in their financial best interest to believe this is true, just as it’s in the public’s financial best interest to agree.  But it’s like wrongful convictions, where people aren’t too concerned provided they aren’t the ones to be wrongfully convicted.  Everybody assumes they will be on the favorable side of the odds, and they’re willing to take risks because they don’t believe they’ll be among the 20% whose lives are ruined.

And what does this have to do with criminal defense lawyers?  After all, we’re above this fray, our work being immune to market forces, outsourcing and unbundling.  Think again.

Once the public tastes cheap, our mystique will fade just like everyone else.  Surely it takes no genius to respond “not guilty” at arraignment.  And if they can haggle to buy a car, surely they can negotiate a plea.  The motion to suppress is just as susceptible to blank-filling as the last will and testament intended to secure a child’s future.  Is there anyone among us who hasn’t been told by a client how the police did something wrong (no Miranda, no telephone call, no video) that means the case must be dismissed?  Or the failings of the court (no “In God We Trust,” no American flag, the judge didn’t wear a robe) that denied him due process?

Crazy?  Can’t be done?  Ridiculous, doomed to fail?  Of course it is, but since when does reason stop a tidal wave?

The future of blank forms replacing lawyers is almost upon us, and the money behind these companies, the ones that see the potential to take a slice out of the middle of the legal fees paid to lawyers, knows something that lawyers refuse to see.  By giving away our dignity as a learned profession, we have fed into this mythical belief that what we do is easy and insignificant, that the practice of law is unworthy of respect.

This applies to criminal defense as well.  Misdemeanors for $500; Felonies starting at $1000?  Lawyers are fungible in the public’s eye, and if one lawyer can do it at Wal-Mart prices, so too can the rest.  Or maybe, just maybe, they really aren’t doing much of anything useful, particularly since so many innocent people are going to prison anyway, their high-priced lawyers having done “nothing” to help.  If a defendant has no chance of winning, then why throw good money after bad?

It’s not that any of this is necessarily true, though many lawyers appear hellbent on making it so. But to the extent that law is just another business, legal services just another commodity, criminal defense lawyers are just as exposed to these forces as anyone else.  And we have no greater power to stop this tidal wave.

It won’t be long before clients, if you still have any, tell you they only want to purchase an unbundled portion of your service because the fill-in-the-blank form sellers are running a special on motions to suppress.  But can you validate their parking just like they do at Neiman Marcus?

5 thoughts on “On Sale, Motion to Suppress

  1. Brian Cuban

    It’s not just the criminal arena. I get calls from people who used LegalZoom to file a trademark or copyright which was either rejected or the person got sued for infringement because they protected the wrong interest.

  2. SHG

    I expect the criminal arena to be one of the last to go, but with consequences far more severe than a mere trademark rejection.  But the public doesn’t believe and doesn’t care, until someone ends up being the one who gets burned because they handled it all wrong.

    Of course, it still won’t be their fault, but the fault of a hypertechnical system that doesn’t understand and appreciate them.

  3. John Burgess

    But of course! We’re in a period in which no one is responsible for his own actions or inactions. Somebody else is always to blame and they probably owe you money anyway. We’re constantly being told this. It must be true.

  4. Rhinold Ponder

    First, love your blog. I will add it to my blogroll.

    Second, lawyers will just need to figure it out. The marketplace is changing and it is about time. Lawyers will need to figure out a better way to deliver services and add value. Law School taught you how to think, not how to run business’s and there are a lot of people delivering services inefficiently.

    WE can gross about it all we want, but the practice of law is heading in the right direction for an overly litigious society. The truth is that there is no longer room for so many attorneys with the current business model and with better educated consumers.

    Finally, much of what lawyers do is not that difficult. A lot of what they do is made difficult to obfuscate the simplicity of some of the services they provide.

  5. SHG

    First, woo hoo.

    Second, don’t parrot nonsense because you think you’ve found a niche encouraging to pro se litigants. They won’t so happy with you when they come out of prison.

    Third, the word is “grouse,” not gross.

    Finally, maybe what you do is not difficult.  Maybe you’re doing it wrong.

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