Alternate Title: Handing a loaded gun to children.
I swear I don’t go looking for problems, but somehow they find me. A relative sent over a series of documents purchased online, the core of which was a special needs trust, and I was asked to take a look. The documents were purchased from a business that was certified as a “legal document preparer,” the principal of which had proud experience selling cars bearing high-end marques. He was not a lawyer, and at the end of his small-print disclaimer, admitted so. He was offering no legal advice, he said.
The fee for the documents was, well, high. Very high, given that these were fill-in-the=blank forms, prepared once and then resold to anyone willing to pay. It was not substantially less than had these documents been obtained from a lawyer, who would have been capable of providing legal advice, but the seller gave the impression that purchasing the docs from him would be substantially cheaper. And, he explained, anybody could fill in the blanks, so there was no need for legal advice. A purchaser could beat the system.
When the docs came to me, they were already filled in. They were lengthy, which is always very impressive to a non-lawyer who can feel weight far easier than quality. But the fact is that the docs were surprisingly good, well-written and comprehensive. They came with instructions that were also quite good. In fairly straightforward language, they explained what the docs meant and what role the various named positions played. Some of the language in the docs was off, and there were small mistakes, but given the whole, it was excellent work.
And it was a looming disaster.
The existence of fill-in-the-blank documents is hardly as new as its supporters think. Bloomberg sold legal forms decades ago at stationary stores, which contained all the expected verbiage for basic legal documents. They were always available for the public to buy, though most of Bloomberg’s customers were lawyers. You would buy a pad of 50 general releases, or an envelope with all the papers needed for an uncontested divorce.
Some business owners used the forms for their recurring needs, but for the most part, people left the forms to the lawyers. They understood that the form wasn’t the value, but the advice as to what form to use, how to fill in the blanks, that distinguished the lawyer’s work from the piece of paper.
Testamentary documents are among the most serious legal papers around, not only because they protect our children, but because they can’t be fixed after the testator dies. Screw up now and it’s too late later. My relative put names into blanks that seemed to make sense at the time. In doing so, the documents would have created a situation so unwieldy as to be functionally useless, and enormously expensive merely to cover the expenses required by the choices.
There was a fine set of docs. There was no concept of how to create a cohesive and viable plan to make them work properly. It was a tool without the understanding of how to use it. This is the Utopia of legal futurists, where every person can be their own lawyer with an online form and a printer. It’s a lie.
The virtual lawyer concept was exposed by the success of takedown lawyer David Blade. Not because the virtual lawyer concept didn’t necessarily work, but because David Blade didn’t exist. It may make your life as a lawyer easier, and enable you to run a practice from Starbucks, but it allows David Blade to do the same. If you care only about what’s in it for you, then you likely couldn’t care less that on the internet, nobody knows you’re a dog.
The sale of legal forms is part of the transparency notion that is so heavily promoted, that if we put all the statutes, caselaw and forms on the internet, people can be their own lawyers. Because any idiot can correctly understand the law. It’s easy. Just ask anyone, and they’ll tell you.
To the extent it might require some additional insight, as if lay interpretation of law might not always be sufficiently clear and precise, the futurists tell lawyers that we should spend out days explaining it to non-lawyers so that they can play lawyer for themselves. The non-lawyers will like us more if we do that, we’re told, and the banks will accept their deep appreciation in lieu of repayment of school loans. Well, maybe not.
Lawyers are expensive. People would much prefer not to pay for legal advice, and the notion is being promoted hard that they shouldn’t have to. It’s a commodity, they’re told. It’s easy. It’s their law, so why should they need lawyers to explain it to them or do it for them?
The people doing this talking haven’t spent a lot of time holding hands and wiping away tears of real people, who explain that they thought they knew what they were doing but, well, were absurdly wrong. And are now stuck in disastrous litigation, or have so badly screwed up an estate that could have been easily handled. Or are under water on a home with a mortgage that they could never afford to pay. It seemed so easy at the time. It make so much sense to them. And it produced a disaster.
Criminal defendants and their families explain their understanding of the law to us all the time. They have for years. They watch TV, and have what they consider to be a pretty good idea of how things work. And then there was the old lady on the corner who knows all about stuff. They tell us their understanding. And they are utterly clueless.
The law isn’t easy. It isn’t clear. It two lawyers and a judge can’t agree on what the law means, why would a non-lawyer be able to do so? The law has developed over centuries, and embodies a lot of odd rules (think “fertile octogenarian”) that only make sense if one understands the context and history. Non-lawyers don’t, and so they couldn’t possibly know that the rules exist or why. They aren’t supposed to know. And yet, they are being handed forms and told that they are just as capable of handling their legal affairs by themselves. And they believe.
We are setting people up for massive failure by telling them a lie. People who naively believe that non-lawyers can manage their legal affairs just fine with a little help are leading them down the path to failure and misery. Remember all the gurus who ask, “has any client ever been fooled by what a lawyer says online”? Ask David Blade’s clients.
And when the realization that this fool’s panacea has failed them, left people in misery because they had blanks to fill in without the knowledge to understand how and why, the same non-lawyers who think they got one over on lawyers will hate us even more, blaming us for having lied to them when they were told they could do it all by themselves.
Endnote: This won’t affect my practice, so it’s no skin off my nose if non-lawyers buy their forms online and gain their “knowledge” from websites that offer information they don’t understand. I have no horse in this race and say this, against a tidal wave of marketers, futurist, technophiles and academics, who are leading non-lawyers to disaster.
Alternate Title: Handing a loaded gun to children.