How would we know if and why the “law” is “overly complicated and outrageously expensive”?
posted by Dave Hoffman
I agree with some of what’s said in this new essay about credentialing and the educational system. It’s worth reading. But the author makes a claim about “law” which I don’t quite accept:
“Today, we take it for granted that practicing medicine or law requires years of costly credentialing in unrelated fields. In the law, the impact of all this “training” is clear: it supports a legal system that is overly complicated and outrageously expensive, both for high-flying corporate clients who routinely overpay and for small-time criminal defendants who, in the overwhelming majority of cases, can’t afford to secure representation at all (and must surrender their fate to local prosecutors, who often send them to prison). But just as a million-dollar medical training isn’t necessary to perform an abortion, routine legal matters could easily, and cheaply, be handled by noninitiates.”
There is one statement here that is undeniably true: many people who would like to access legal services can not afford to do so. But the rest is not fully thought out.
Literally any vaguely competent human can draft a will. The relevant question is: what percentage of “routine” wills turn out to be complex down the line, such that lay drafting which doesn’t anticipate problems creates a joojooflop and expensive heartache? Does anyone actually know the answer to this question? I don’t. And given that I don’t have a sense of the relevant baseline risks, I would vastly prefer to have a will drafted by a competent T&E attorney than drafting it myself; and I’d prefer to draft it myself than take it from a form book or a “noninitiate.” That doesn’t make me a credentialist snob: that makes me risk averse. Indeed: it should be obvious that merely because many people can’t afford wills drafted by lawyers doesn’t mean that experienced nonlawyer will drafting is just as good as legally trained drafting. (It might or not be – the question susceptible to empirical investigation.)
Moreover, the reason that small-time criminal defendants can’t generally afford to secure representation isn’t because legal training is expensive, it is because criminal law has become…well…legalized. A hundred years ago, criminal cases were short, they terminated in trials in which lay jurors starred, and relatively few people ended up in jail. Now, cases are expensive and long, evidentiary and constitutional briefing predominates, most accused defendants plea, and many people serve time. I’d prefer the former system to the latter, but don’t think that credentialling or legal education itself is to blame, except in the most indirect possible way. Criminal law became dysfunctional through a highly complex political and social process generally intended to make the law more fair: making law school cheaper and quicker won’t turn around that ship!
Similarly , “high-flying” corporate clients probably do “routinely overpay”1 for legal talent – and we’re currently seeing what the result of a market correction in that sector looks like. But again, overpaying historically didn’t result from costly training itself, but rather the bar’s ability to limit entry, resulting in extra rents paid to lawyers. (Ah. The sweet days of yore. Sic transit gloria mundi.)
The point is this: to me, it seems quite hard to know if legal services get us the bang we expect for our buck. Selection effects confound efforts to rigorously study representation. Simplicity – or delegalizing law- might mean simply deferring problems until later. And the legal educational system is intertwined with economic effects of the bar monopoly. To say that expensive legal training causes complex and expensive law is unwarranted by the evidence. Legal training is too expensive. Full stop. That’s it’s own evil, worth solving, or at least ameliorating.
1Of course, high-flying corporations overpay for many things, while underpaying for other things. Presumably, over time, firms that routinely make a business out of paying too much for professional services will be dominated by those who don’t. The author’s use of this example was odd.
July 7, 2012 at 5:07 pm
Posted in: Sociology of Law
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Responses (4)
Prattle On, Boyo - July 7, 2012 at 6:36 pm
Au contraire, Dave, you are quite the snob, just not in the manner you think. There are plenty of credentialed non attorneys who are well versed in estate & probate planning. They’re called independent paralegals, or, in California, where the State Bar is so terrified of paralegals being able to provide similar services of an uncontested nature for about a quarter of the usual, bloated $500.00/hr. state bar member price tag, they had the state pass a law so that paralegals can’t even refer to themselves as such. They have to pay a fee to the counties they do biz and call themselves “legal document assistants” which makes about as much sense as attorneys having to call themselves court document assistants.
All too often I’ve experienced attorneys and law students contempt for paralegals, but the fact remains that paralegals in most instances are far more knowledgeable & competent than most freshly minted JDs and even some of their more experienced state bar brethren.
Stop spreading FUD -fear, uncertainty & doubt- and educate your audience that provided the appropriate due diligencing is conducted, an attorney is not necessarily the be all/end all of estate planning or any other non-contested facet of the law.
Dave Hoffman - July 7, 2012 at 6:54 pm
I’m not denying that nonlawyers can create excellent estate and probably planning documents. But it would be useful to have some evidence of the relative quality of those documents at avoiding estate problems. It wouldn’t shock me at all to find that experienced paralegals are better than newly minted lawyers. How about newly minted paralegals versus newly minted lawyers? Do you know of any evidence, one way or another?
It’d be useful if you could also expand on what you mean by “appropriate due diligencing.” Do you mean the consumer ought to investigate the service provider. By what metric?
Ken Rhodes - July 9, 2012 at 1:44 pm
Dave, I’m surprised by one sentence fragment in your original post, especially in light of your response to Prattle On. You wrote “and I’d prefer to draft it myself than take it from a form book…”
A few years ago I wanted to buy a house under unusual circumstances, with unusual terms and conditions. I contacted a highly regarded and highly competent real estate lawyer to draft a “custom contract” for me. His response was that he would be glad to do my work for me, but he would not start with a blank sheet; he would work from the standard Board of Realtors contract form.
I asked him why, with all my special terms and conditions, wouldn’t it be simpler just to write a custom contract. And his response, which in retrospect was surely correct, was:
“I can write your special terms and conditions, but there are a bazillion little details that have already been wrung out and proved over many years in the standard contract, and it’s more likely that I can avoid a mistake by using that form than trying to create my own.”
So what I’m getting to is that it seems to me there are a lot of “standard” types of documents that have been wrung out over many years, and countless court challenges, that you can buy for a buck-ninety-eight now, with more security in their accuracy than a custom-drawn document by even a very high-priced attorney.
Frank - July 9, 2012 at 2:31 pm
It would be interesting to know how many of the “Editors” behind the editorial are trust-funders or foundation favorites. Having that elite backing, I’m sure they would benefit if rival bastions of knowledge capital (like universities) dissolve.
It would also be interesting to know how many of them would actually use the Mao-style barefoot doctors they appear to be advocating, if they had a serious health concern. To paraphrase Mel Brooks: nobody expects the Cultural Revolution.
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