I recently had a conversation with an acquaintance that works in the hospitality industry. We were discussing what estate planning entails and who really should have an estate plan prepared. She stated that she had considered pursuing an estate plan before, but was too intimidated to call a lawyer, and was afraid fees might be incurred if she did.
I’m guessing most people aren’t surprised to read the prior sentence, which is unfortunate. Could any other industry thrive while scaring its prospective customers the way the legal industry does? The legal profession has many problems, not least of which is an almost universal and outmoded bill-by-the-hour pricing scheme. By definition, billable hour arrangements take control out of the hands of clients and simultaneously place most or all transactional risk in the hands of clients. The lawyers who staunchly defend the system were likely trained in firms that gave them no options, and they have little imagination for anything else.
Of course, pricing isn’t the only issue. We can’t cover all of them here, but another issue includes the unnecessary complexity that is often infused at every level, making transactions, cases, and outcomes utterly confusing to clients. While it’s true that many areas of the law are complex, it’s also true that most lawyers aren’t looking for ways to simplify matters for their clients. Complexity serves the industry well, keeping the phone ringing with endless questions for clarifications, updates, amendments, and general help. Simplifying matters might enable laymen to answer their own questions or maybe even draft some simpler contracts for themselves, and we wouldn’t want that, would we? Simplicity can be created by lawyers who are willing to understand and explain the principles that underlie a law, case, or contract. Most people can understand the spirit of a matter, if not the letter.
Lastly, and perhaps most detrimental, is the fundamental assumption that drives most lawyers, which is that everyone sitting opposite their client is an adversary. The American legal system is of course adversarial. Presumably, evidence will be sought and witnesses will be questioned rigorously if adversaries can meet in courts with structure and rules. While the system is quite effective in litigated matters, problems arise when lawyers allow the adversarial nature of the profession to color every engagement, even when the parties themselves want the outcome to be driven by mutual goodwill. If the best outcome of a transaction requires aligning the interests of the parties, do you have confidence that your lawyer will spot that outcome? Or, does he or she see the interests of the “opposing” party only as potential sacrifices to be made on the altar of an adversarial system?
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