The Myth of Legal Populism

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.

15 comments on “The Myth of Legal Populism

  1. steve magas

    Consult Craigslist under “Legal Services” for the most accurate accounting of non-lawyers practicing law today. I think lawyers have an obligation to point these folks out to the UPL committees and let those folks make decisions about who is practicing law and who is not – in today’s Cincinnati craigslist there is a  website listing to help you with your Child Custody issues – and a grand disclaimer :

    We are not Attorneys, Lucky for you!

    We do not give legal advice, we are here to assist  you with your Pro Se court case. (See Services) 

    (will add more soon) 

    What do they do, as non-lawyer helpers, you ask – well just consult their “services” list [more than a few of which sound surprisingly like "lawyerly stuff" & some of which sound awfully much like fraud]- God help “apposing” counsel if you find THESE bulldogs on the other side –

    Some of the services we can provide:

    Mediation & Settlement (When possible)
    Assist by Drafting or Re-Drafting parenting plans
    Supply all proper documents for filings. (The court is very picky about their document’s, and there are many)
    Assist by Drafting powerful Motions (Contempt, Revision, Modification…)
    Drafting Clear and concise Proposed Court Orders (For the Judge/Commissioner to sign)
    Assist by Drafting Responses to Motions
    Assist by Drafting Strict Replies (When allowed)
    Assist by Drafting affective meaningful Declarations
    Can assist in Filing Motions, in a timely manner
    Transcribe Recorded hearing
    Helping you stay on top of court dates.
    Notify you in advance of all up coming hearings.
    Notifying via phone or e-mail of when to confirm hearings (Preventing having to re-file motions)
    Assist in drafting dialogue, to be read by you Pro Se in court. One on One Coaching prior to every Corurt hearing
    Have the apposing side served in a timely manner, and file proof of service with the court.

    Just to mention a few.

    [Ed. Note: links added in for your reading pleasure.]

  2. SHG

    What could possibly go wrong

    At least it’s only child custody. Nothing really important there. Which of the promoters of the “new normal” will explain how this is going to work out just fine; that evil, greedy lawyers aren’t needed and anyone can do it?

  3. steve magas

    I’m sure the “one on one coaching” services alone, to help you deliver your “prepared dialogue” to the court with just the right emotional content, are worth their weight in gold…

  4. Ryan Kalamaya

    I don’t disagree with anything in this post. The cold reality, however, is that many people simply cannot afford an attorney. There has been an explosion of people proceeding pro se in family law cases. It’s a big problem. I consistently see cases where people screwed up their divorce and are now seeking legal advice to unwind things. If they would’ve consulted with an attorney beforehand, they wouldn’t be stuck in such a mess. The problem is finding an attorney that will spend an hour or two to ensure they’re doing things right. (I’m not saying that all cases require 1-2 hours.)

    There’s a critical distinction between “futurists” who take a simplistic view of the law and advocate for expanding the market of fill-in-the-blank-forms, and lawyers who are trying to help people who would otherwise forgo legal advice because it is too expensive. I don’t see anything wrong with the latter. In fact, I think it would be a disservice for the legal profession to remain so rigid and preclude those in need from obtaining competent advice. How we balance our ethical obligations to assist those in need with the complexities in the law isn’t easy. Highly skilled lawyers will always fill an important role in society. That’s a given. For those that simply cannot afford thousands of dollars for an attorney, the choice is less than clear.

  5. SHG

    It’s critical to separate one problem (that some people cannot afford legal representation) from a second problem, that most people would rather not pay for legal representation if they think it’s unnecessary. There are indigent people in need of legal help, and then there are people of modest means who can afford a lawyer (like they can afford a vacation, or a car, or a diamond ring) but, given the DIY option, will take their chances. 

    The former deserves help and sympathy. The latter, not so much, and certainly no more so than lawyers who struggle to make a living.  That people forego competent counsel isn’t necessarily because they can’t actually afford to pay, as much as they are being told they don’t have to, they can go it alone, and would rather use their money elsewhere.

    It’s unclear from your comment whether your concern is for the truly indigent, or for anyone who isn’t well-off and would prefer not to spend money on a lawyer if they can avoid it. If your concern is for the indigent, then the solution has nothing to do with selling legal forms, or unbundled services, or virtual lawyers, or any of the other sham nouvelle concepts that are in vogue among futurists.  If your concern is for the people who could pay, but prefer not to, then I don’t share your concern.

  6. Robert Hewes

    I read an interesting article today by a doc that sounded remarkably similar, only in hers she expressed frustration that the affordable care act was allowing nurse practitioners to do what only doctors can do now. Key takeaway: you should probably avoid NPs that practice interventional pain management.

    If you’re interested, it’s the November 11th post at apennedpoint dot com

  7. SHG

    Very interesting post .  At least nurse practitioners have significant training, though it’s curious that the NPs are willing to perform functions for which they are untrained. Kinda makes one wonder about their ethics and dedication, no? I’m not sure her assessment that nurses have better PR, and the solution for physicians is better branding, is quite accurate. It may be a bit more well-founded than that, but whatever.

    As for law, the guys on the other end of some website might be used car salesmen, for all anyone knows. Or 12-year-olds. Or a dog.  It strikes me that in the zeal to save money, we’re regressing as a society to the days when barbers performed surgery and everybody grew their own food and sewed their clothes. I wonder whether everyone will be happy when we finally return to the dark ages?

  8. Michael

    That’s the problem my friend, the court system is full of lawyers, in fact they are all lawyers. The fact that they have made this process so complicated should tell you something in itself. Ask yourself a question: Why is it ok to expect and force a family to spend their life savings hiring litigators to settle a family dispute? How does that make any sense? FCA at CustodyIssues.org did a wonderful job helping my sister, after spending her entire savings on greedy lawyers.

  9. SHG

    No family has to spend their life savings hiring litigators to settle a family dispute. If there’s litigation, it’s because one or both parties chose to fight. And if they did, any fault belongs to the parties, not the lawyers. Your comment brands you a clueless moron, surprised that the legal system is run by lawyers? Who would it be full of, shoemakers?  The system is deeply flawed, but simplistic nonsense isn’t the solution. 

    As for your shilling for the wonder of custodyissues, a doubtful proposition coming from someone as ignorant and self-serving as you, I hope they do help someone. More importantly, I hope they don’t hurt many people. Of course, if your sister spent “her entire life savings on greedy lawyers,” then she wouldn’t have been able to pay custodyissues (oops, you screwed up).  But your credibility was shot long before your final line.

  10. John Neff

    I am confused it is ageed the justice system is deeply flawed and the justice system is run by lawyers. If I understand what you said they are unrelated.

    My take is the lawyers are afraid that if someone were to try to fix the system the would just make it worse. That seems a bit self -serving to me.

  11. SHG

    It’s correlation/causation logical fallacy. It’s not that they are unrelated, but that one doesn’t cause the other such that a legal system run by non-lawyers would not be deeply flawed.  Lawyers (as if we were all the same) may be responsible for the state of the system, but that bears no rational connection with the idea that non-lawyer wouldn’t turn it into a far worse disaster. One being bad doesn’t make the other better. 

  12. whatever

    Nice fake-out. Neff, you are so correct it isn’t funny, regardless of whatever merits SHG’s posts and comments have.

    We are confronting a ruling class made up of lawyers. In the 1600s, 1700s, and 1800s in this country, lawyers were not well-liked and were not even welcome as neighbors. Towns prided themselves on not having any lawyers as residents and for the longest time Harvard and Yale hardly graduated any lawyers at all. It was an extremely unpopular profession. This is why.

    We are dealing now with legal imperialism.

  13. John Neff

    We are getting off the original topic but I would like to say that not all of the imperious denizens of justice system are lawyers.

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