4/9/16

Bad Lawyering, Not Bad Forms

As Robert Ambrogi has been reporting, Avvo launched a new legal forms offering to compete with LegalZoom. Mr. Contract himself, Ken Adams, reviewed an Avvo form and concluded that Avvo was another of the "hack vendors" that was "foisting crap" and "dreck" on consumers. Avvo responded to Adams's "silliness" in a way that suggests to me that we are witnessing two different debates. Both warrant exploration.

Legal Forms are a Bad Idea

Avvo wants to debate the merits of consumer-facing legal forms. The basic outline of this debate is fairly well settled:

Should lawyers create legal forms? Yes. Anytime that a lawyer repurposes old product--which happens all the time--they are making the case for some form of document assembly or automation. If you have a good indemnification clause it is stupid to draft a new one from scratch.

Should consumers use legal forms? Sometimes. Form contracts are everywhere (home purchases, car lease, software licenses), and we do fine without legal counsel. When the need is straightforward, most people are sufficiently adept at filling out basic forms. Even if they aren't, lawyers are cost prohibitive.

Isn't there a danger? Sure. Not every situation is straightforward. The untrained person is more likely than the trained person to make a costly mistake.

This is where the debate normally heats up. The question becomes where to draw the line. At what point is the provider of the form handing the consumer something too likely to lead to self-inflicted harm. The standard criticism is that the kinds of forms Avvo is providing (prenup, codicil, quitclaim, etc.) are not suitable for consumers to use without guidance from a lawyer. Avvo was ready for that debate.

First, they point out that their target audience is people who are already seeking to use forms rather than hire a lawyer. Second, they explain that the purpose of their free forms is to "upsell" consumers-- i.e., convince the consumers to pay for assistance from a lawyer through Avvo Legal Services.

At worst, Avvo is providing a free service to someone who was not going to pay for a lawyer under any circumstances. The implicit suggestion seems to be that their free service is better than what the consumer would have otherwise done or, at least, just as good as the forms that the consumer would have paid some small amount for at LegalZoom.

Avvo not only concedes the standard critique--most people would be better off if they consulted an attorney--Avvo's business model is based on convincing consumers of that premise. Avvo's CEO Mark Britton referred to DIY as a "virus" and is adamant that you cannot compare mere forms to the bespoke work product of a trained lawyer:
"This is just silliness. The point that is being missed here, is that you have over 50 percent of people who have money and are potential clients but who are not using lawyers. You have this explosion of DIY that is like a virus. The question is how do you get in front of those people who want to do it themselves. Even though they say they want to do it themselves, they don’t really mean that. You cannot compare a bespoke product from a lawyer that will cost you thousands of dollars to a product that is an entry-level product designed for people who are doing everything they can to avoid a lawyer. Let’s get them that product and then start the conversation from there."
The primary questions in the debate in which Avvo is engaged:

1. Whether consumers are better off consulting a lawyer than using forms

2. Whether the provision of free forms is more likely to convince consumers to use lawyers

3. Whether consumers who are not going to pay for a lawyer under any circumstances are better off with access to free forms

Avvo answers in the affirmative to all three.

Forms are Fine, Lawyers are Bad

Ken Adams is having an entirely different debate. He is stating that Avvo's forms are "crap" on their own merits. That is, Adams is comparing Avvo's form to a good form. He is not comparing Avvo's form to the bespoke work product of a good lawyer.

Adams, however, is famously less than impressed with bespoke work product from putatively good good lawyers. In a previous post, he subjected a LegalZoom contract to the same kind of scrutiny and came to a similar conclusion: "commoditized mediocrity." He then added this gem:
It’s clear why business customers might want to try LegalZoom. Lawyers cost more than LegalZoom. Choosing a lawyer can be a crapshoot. And there’s a fair chance that an NDA produced by a lawyer you retain wouldn’t be any better than LegalZoom’s.
Let that soak in for a second. Adams is absolutely saying that the forms from Avvo and LegalZoom are mediocre. But he is also saying that a fair number of lawyers are just as mediocre, if not worse. Where I made the banal observation that it was stupid to start from scratch if you already have a good indemnification clause, Adams would likely counter that the indemnification clause you have probably isn't all that good and that most lawyers are incapable knowing the difference, let alone writing a good clause on their own. As he writes in the Avvo post, "the quality failure of the consumer market is just part of the quality failure of contract drafting as a whole."

Consider an analogous post where Adams takes the same critical eye to a two-page, simplified cloud contract for which IBM was getting accolades. Adams labels the contract the work of "dilettantes" and then lays out a case that most lawyers should leave contracts to the professionals (i.e., being a lawyer does not make one a contract professional):
What conclusion do I suggest you draw from my markup? That contract language is specialized—it’s best left to specialists. Knowing your company’s transactions doesn’t make you a specialist. And many years of being steeped in traditional contract language doesn’t make you a specialist. You become a specialist only by making a concerted and disciplined attempt to familiarize yourself with the building blocks of contract language, the good and the not-so-good.
If you’re not a specialist, you’re a dilettante. Those responsible for IBM’s new cloud services contract are presumably knowledgeable, enthusiastic, and hard-working, but when it comes to contract language, the shortcomings in the new contract suggest that they’re dilettantes. That’s to be expected. In fact, the contracts ecosystem would work better if contract language were left in the hands of a limited number of “legal knowledge engineers” (to use Susskind’s clunky but apt phrase) working closely with those who have a broader understanding of the business and legal issues.
Adams made similar comments in a post labeling the Google-Motorola merger agreement "a mediocre piece of drafting. It’s bloated and hard to read, and that takes a toll at every stage—drafting, reviewing, negotiating, and monitoring compliance. And there might be lurking in the verbiage some bit of confusion that metastasizes into a dispute down the road."

With respect to the high-prestige drafters of the Google-Motorola merger agreement, Adams anticipates the obvious question:
Mediocre? How can that be! After all, Google is represented by the prominent law firm Cleary Gottlieb—presumably they did the bulk of the drafting. Well, the Google–Motorola merger agreement is mediocre because all big-time M&A drafting—or at least all that I’ve seen—is mediocre.
That should come as no surprise, seeing as the language of mainstream drafting generally is dysfunctional. That’s due to a mix of factors. The root cause is that because any transaction will closely resemble previous transactions, drafting has become largely an exercise in regurgitation, with most contract language being given a pass. Also, law firms aren’t suited to the task of retooling and maintaining template contracts. (For more on these factors, see my article The New Associate and the Future of Contract Drafting; go here for a PDF copy.)
But in addition, most of the M&A luminaries I’ve approached have made it clear that they’re wedded to old habits and conventional wisdom. Perhaps what makes M&A drafting particularly resistant to change is that clients are less inclined to meddle when it comes to “bet the farm” work such as the Google–Motorola deal.
The way to fix M&A drafting would be to turn it into a commodity process. Google, if you want your M&A contracts to be free of shortcomings of the sort manifest in the Google–Motorola merger agreement, I suggest that you enlist some like-minded companies and form a consortium to create a rigorous set of document-assembly M&A templates. You could fund it with spare change retrieved from your couch. Judicious use of the carrot and the stick would get leading law firms to participate. The work could be done quickly and efficiently. The basic idea should be familiar to you—after all, this month Google Ventures invested in Rocket Lawyer, which aims to commoditize, in a much more rudimentary way, some basic consumer and small-business documents.
[In a subsequent post, Adams reviews an actual contract from Rocket Lawyer. The title of the post, "Rocket Lawyer? Contract Automation FAIL"] 
Adams is not opposed to forms. Adams is about the staunchest supporter of forms you can find. He just believes that most lawyers lack the training to author first-rate forms. He is not saying Avvo, LegalZoom, and Rocket Lawyer forms are mediocre because they are forms. He is saying they are mediocre because they are mediocre. He reaches similar conclusions about the bespoke work product of lawyers hired by IBM and Google.

As Compared to What

Avvo's position touches upon the IKEAization of law. Much of IKEA's furniture is disappointingly serviceable. It works for the intended purpose. But it is made of cheap, fragile particle board. It has a high propensity to break and is notoriously painful to put together.


Yet many of us shop at IKEA anyway because it is substantially less expensive than traditional furniture. Should consumers be permitted to make the same tradeoff when it comes to legal services? Slightly worse but radically cheaper.

It's an important question for every legal consumer, including in-house counsel who are not only under pressure to consider less expensive alternatives to traditional law firms but who should always keep in mind the lessons of Do Less Law. Budgets are finite, and resources should be put to their highest and best use. Tradeoffs are unavoidable.

But the question of slightly worse at substantially lower cost is of particular significance for consumers who cannot otherwise afford legal services. The access-to-justice gap is not going to close because we talk about it endlessly. Starting to close the access-to-justice gap will require actually making the structural changes that would provide more access to justice. This includes the tradeoffs necessary to make legal services more affordable.

But the whole IKEAization discussion rests on an implicit comparison. We know, for example, that the Avvo and LegalZoom forms are cheaper than consulting a lawyer. We can do that math. But do we really know whether the end product is worse than what the consumer would have gotten from the lawyer they would have hired (if they could have hired one)? The instinctive answers seems to be that, yes, we know the expensive human lawyer will outperform the inexpensive (or free) form. Adams, however, calls into question our knee-jerk reaction. And even if the forms are worse, the issue of how much worse is significant in a world of tradeoffs. Dangerous and suboptimal are different conclusions with different implications.

I would be interested to hear how crowds of lawyers react to Adams if/when he tells them that most of them are bad at contract drafting. According to Bryan Garner, they "bristle" when tells them that, "on the whole, our profession can't punctuate."  Garner, the authority on legal writing, does more than remark on poor comma usage [so guilty!], he tells rooms full of lawyers that we are bad at writing in general:
For many years in lectures, I’ve likened practicing lawyers, when it comes to writing, to 23-handicap golfers who believe that they’re equal to the touring professionals. For those not golfers, this would mean that pretty poor golfers—those who habitually shoot in the mid-90s but benefit from the big handicap—somehow fool themselves into believing that they really are shooting in the mid-60s, and that they’re about as good as it gets. I’ve been trying, in other words, to say that lawyers on the whole don’t write well and have no clue that they don’t write well.
In the quoted article, Garner discusses Dunning-Kruger, or illusory superiority. Ignorance begets confidence due to meta-ignorance--ignorance of our own ignorance. Because we don't know what we don't know, we labor under delusions of adequacy. We then erect those delusions of adequacy (or grandeur) as the standard against which we measure potential departures from the status quo. Legal forms are just part of a much broader discussion of what kind of work requires a human lawyer admitted to the bar in a particular state. Think of UPL regulations, humans as the "gold standard" in document review, the kind of work amenable to outsourcing, etc.

I write quite a bit about using process and technology to complement legal expertise. I spill most of my digital ink defending the complements--process and technology--and trying to explain how they augment or leverage the expertise. Maybe I need to spend a little more energy questioning the implicit assumption that the expertise is all that expert.


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Casey Flaherty is the founder of Procertas. He is a lawyer, consultant, writer, and speaker focused on achieving the right business outcomes with the right people doing the right work the right way at the right price. Casey created the Service Delivery Review (f.k.a., the Legal Tech Audit), a strategic-sourcing tool that drives deeper supplier relationships by facilitating structured dialogue between law firms and clients. The SDR is premised on rigorous collaboration and the fact that law departments and law firms are not playing a zero sum game--i.e., there is more than enough slack in the legal market for clients to get higher quality work at lower cost while law firms increase profits via improved realizations.
The premise of the Service Delivery Review is that with people and pricing in place, process offers the real levers to drive continuous improvement. Proper collaboration means involving nontraditional stakeholders. A prime example is addressing the need for more training on existing technology. One obstacle is that traditional technology training methods are terribleCompetence-based assessments paired with synchronous, active learning offer a better path forward. Following these principles, Casey created the Legal Technology Assessment platform to reduce total training time, enhance training effectiveness, and deliver benchmarked results.
Connect with Casey on LinkedIn or follow him on Twitter (@DCaseyF).

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