Ship of Fools: Who Needs A Lawyer?

Thread: Who Needs A Lawyer? Board: Oblivion / Ship of Fools.

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Posted by Tortuf (# 3784) on :

Last night while watching highly educational and edifying shows on an online TV show site (McHales Navy), I saw several online ads for LegalZoom. LegalZoom is a web based legal document provider. You can form a business, draft a will, lease a house, and even set up a trust to take care of your pet after you kick off.

Why would you want to go to a lawyer and spend all that money unnecessarily?

I have made a lot of money litigating effed up wills. On the other hand, a lot of families would be a lot happier if certain dearly departed ones had made a will.

What do you think? Would you use a site like LegalZoom instead of going to a lawyer? If so when, and when not?

Posted by tclune (# 7959) on :

I haven't had much exposure to the tort system, but what I have had has made it clear that the legal profession is very protective of its turf. I took a case to small claims court once and the defendant (an insurance company -- I have no idea why they wouldn't settle without the small claims) acknowledged all the facts as I presented them. The judge said that he couldn't possibly take my word for the facts that were uncontested without my being represented by a lawyer and dismissed my case.

To my mind, the reason to have a lawyer prepare my will is the same reason as to pay the vig to a loan shark. I may not like it, but it's less painful than the alternative.

--Tom Clune

[ 23. October 2012, 14:31: Message edited by: tclune ]

Posted by Lawrence (# 4913) on :

the simpler the task the more likely you can use self directed forms. the more complex the task the more likely you should use an attorney expert in the relevant legal area. Where I live the bar association has a standard real estate contract for people to use when buying and selling a home. It is intended to comply with the law and allows people to not have to use an attorney for the contract. Most people use it because it has the imprimatur of the bar association. Now, if someone wants to start changing the standard language of the contract, you probably want an attorney to look at it. A detached, knowledgeable attorney who is your advocate may cost some upfront money, but may save you a lot of cost and grief down the road. You know the old saying: A man who is his own lawyer has a fool for a client

Posted by que sais-je (# 17185) on :

quote:
Originally posted by Tortuf:

What do you think? Would you use a site like LegalZoom instead of going to a lawyer? If so when, and when not?

Is this in the US? I'm aware of moves to make it easier to do this in the UK. For example, a few months ago I helped my stepfather create an LPA (Lasting Power of Attorney) so that, should he become mentally incapable, I can manage his affairs/medical and end of life treatment. The form from the court was long winded but came with lots of notes so you could do it all yourself, no legal terminology that wasn't explained and, tedious though it was we filled it in with no mistakes. Cost £130 v £750 estimated for a solicitor. Subsequently my wife and I each created LPAs in the same way.

It worked because virtually none of the boxes to be filled need more that straightforward factual information. I wouldn't say anyone could get it right - but I'm sure any shipmate here could.
However it is clear the Court of Guardianship which grants LPAs has given this some thought and tried to make it straightforward.

My next attempt was to do the same for my mother who has dementia. This being England it is handled by a different Court and, though you can do it yourself by filling in forms, what you are asked in each is so general that you need to know the appropriate forms of words. We used a solicitor (cost about £2000). Looking at the completed documents, they could have been presented in a way which made filling them in easy and no doubt it will happen one day if there is enough demand.

I have no problem with this sort of form filling. Where there is scope for appeals or some sort of adversarial response, I'd go for: The man who represents himself has a fool for a client!

Posted by Cod (# 2643) on :

Over here, the Public Trustee provides a free (basic) will service and has done for decades. One fills out a form by listing one's assets and who one wants them to go to. It's an expediency: it's probably cheaper for the Government to provide such a service and thus avoid dealing with the estates of those who would otherwise had died intestate. I doubt these estates would provide much work for litigators though.

Tom: I deal with lay litigants frequently, and they can cost the courts and other lawyers a good deal of time and trouble. I can understand why a judge would get a bit leery of having to decide a case without one around, although there might have been an overreaction in your case.

Posted by tclune (# 7959) on :

quote:
Originally posted by Cod:
Tom: I deal with lay litigants frequently, and they can cost the courts and other lawyers a good deal of time and trouble. I can understand why a judge would get a bit leery of having to decide a case without one around, although there might have been an overreaction in your case.

An overreaction? The small claims court system was explicitly set up to allow for handling of small-sum tort cases without involving lawyers. If the judge disapproves of the small claims system, he should have resigned instead of actively undermine the system he was being paid to serve.

--Tom Clune

Posted by The Silent Acolyte (# 1158) on :

Leases and notices to quit I do myself.

Wills, durable powers of attorney, healthcare proxies, advanced directives, HIPAA releases all go to a lawyer.

Posted by Sioni Sais (# 5713) on :

quote:
Originally posted by tclune:

quote:
Originally posted by Cod:
Tom: I deal with lay litigants frequently, and they can cost the courts and other lawyers a good deal of time and trouble. I can understand why a judge would get a bit leery of having to decide a case without one around, although there might have been an overreaction in your case.
An overreaction? The small claims court system was explicitly set up to allow for handling of small-sum tort cases without involving lawyers. If the judge disapproves of the small claims system, he should have resigned instead of actively undermine the system he was being paid to serve.

--Tom Clune

I know even less about US law than I do about English law, but our Small Claims Court process handles simple cases, and while there are limits laid down regarding the amount that can be claimed the judge can transfer cases of low value to another track if he judges it is not simple enough for the SCC procedure. If that happens, you might well need a lawyer.

Posted by Sober Preacher's Kid (# 12699) on :

Call around about lawyer's fees. I have a Will and Powers of Attorney for Personal Care & Property. As a diabetic who is one hypoglycemic episode away from needing them, they are necessary.

I called around my town and got a range of $185 for everything to $700+. I said the same thing to every firm: bachelor with no dependants and minimal property needs straightforward Will & Powers of Attorney.

I ended up going with a junior solicitor at a very reputable firm downtown, he was the cheapest. I didn't need a partner with a high billing rate, the junior was all I needed.

"Will Kits" are dangerous if the testator overlooks the obvious. It's all about asking the right questions and knowing the particulars of the law of your jurisdiction.

I hope to move to Quebec in the near future, which uses the Civil Code, not common law. Will Kits won't work there. I will have to take special care to decommission my common law Ontario will and replace it with a Quebec-compliant one.

Quebec has a special class of practitioner called Notaires, (Notaries). They compose legal documents and a notarial will is valid on its face, it is taken as evidence without question, that is the purpose of notaires. There is no probate in Quebec.

The legal profession in common law jurisdictions could do better at setting different price points for common, retail transactions like wills, things that rarely lead to court and are simple.

Posted by Og, King of Bashan (# 9562) on :

quote:
Originally posted by Sober Preacher's Kid:
The legal profession in common law jurisdictions could do better at setting different price points for common, retail transactions like wills, things that rarely lead to court and are simple.

We lawyers can tell you some awful war stories that start out with simple things that rarely lead to court. Part of the value of an attorney is that you have someone on your side who knows to expect a worst case scenario.

More to your comment, this is where flat rates rather than billable hours make sense, but there is an aversion to that system here, and they still lead to trouble. When I do debtor work in bankruptcy cases, I have a flat rate, which barely covers the actual time I spend on the case, if at all. There are a few lawyers who offer rates so low (about a quarter of my flat rate) that the bar has started to question if they could possibly be offering competent help- if you take $500 for a bankruptcy case, you would have to do so many a month to make ends meet that you wouldn't have time to actually do a good job of representing a client.

Lowering costs to increase access to justice has lead to another problem. Debtor's attorneys are allowed to "unbundle" services- charge the client for very basic services, with no obligation to represent the client beyond those basic steps. Unfortunately, when you give a debtor a call to warn them that they are about to lose their discharge because of something they did wrong, the lawyer who helped them is nowhere to be found, and it ends up being a bad situation all around.

But then I own a 50 foot drain auger because I would rather spend an afternoon with my head under the sink than call a plumber, so I don't have much room to criticize people who will not hire attorneys.

Posted by Sober Preacher's Kid (# 12699) on :

I didn't say it applied to everything, but in cases where the point is the production of documents, such as a will, power of attorney, etc. then flat fees make sense. The point is to have a systematic approach to it, a sort of assembly-line operation, and set the client's expectations' correctly before fees are paid.

If you go beyond that and contest something, then of course you should pay for the extra services you need.

Civil Law notaries are a special class who just produce documents and whose practice is designed to prevent litigation.

I don't think bankruptcy is the same thing as a will, because that is more contested, the creditors have to be convinced of a proposal at least and there are more details to be sorted out. You need more of the judgment and advocacy functions of a lawyer, rather than as a document producer.

Posted by Og, King of Bashan (# 9562) on :

I fully agree that flat fees should be the norm for many of the kinds of services you are talking about. Like Tortuf, I do a lot of litigation related small errors in what should be basic legal documents, so I have learned to be cautious about describing any legal document as simple and unlikely to cause trouble down the line.

Posted by orfeo (# 13878) on :

We've had a "Legal Will Kit" available here in Australia for years. I suppose it's probably gone online by now.

Posted by Tortuf (# 3784) on :

One of the problems with will kits and forms is they use legal phrases to make them sound more "official." That language is not always well explained.

There was a case where the hand written words in a blank said to distribute to the grandchild generation after the last of the children died. Immediately after that the form language said "per stirpes." The matter went up to our Court of Appeals because some grandchildren who would get cut out otherwise wanted a piece of the pie and insisted that per stirpes meant they should get their distribution immediately.

Ultimately, the grand kids lost. I cannot say what the grandparents actually wanted because their wishes were lost in the conflict between English and legalese.

On the other hand I see lots and lots of divorces where complete idiot attorneys who have been paid a small sum are disposing of their clients' lives and property as quickly as possible with as little effort as possible - because they aren't paid enough. If a good or aggressive lawyer is on the other side some of these folks just roll over and play dead as a negotiating tactic.

Having get your own divorce kits with a computer driven information tree fill in program might put a lot of lawyers out of work, but might also get people better deals in their divorce. There are programs like that in Phoenix; at least their used to be. I wonder how the program worked out.

Posted by Moo (# 107) on :

In the US, there is the problem of different states having different laws.

When my mother-in-law was admitted to a nursing home, the home insisted that a family member have a power of attorney. She was willing to sign the document.

We thought we could manage without a lawyer by asking my brother, who practiced law in another state, to tell us the proper wording. There was a long list of phrases saying, 'whether this or that'. We thought it covered everything, but the nursing home rejected it because it did not say, 'whether of sound or unsound mind'. Apparently the state of North Carolina required this.

Moo

Posted by Sober Preacher's Kid (# 12699) on :

In Canada and Australia, there are only a handful of jurisdictions at the state/provincial level, so the pool is smaller. Plus the Supreme Court of Canada/High Court of Australia are the final Courts of Appeal for both civil and criminal law, whether of state/provincial or federal origin. That tends to keep things together more.

Canada has Quebec, which uses the Civil Code. The effects are generally the same while the route to get there is different. Don't even think of using a kit in Quebec, especially an English language one.

Posted by orfeo (# 13878) on :

quote:
Originally posted by Tortuf:
One of the problems with will kits and forms is they use legal phrases to make them sound more "official." That language is not always well explained.

From the example you gave, that language isn't even English. And frankly that's appalling. Never mind kits and forms, lawyers crafting individual wills should be using the English versions of those crappy Latin phrases. But it's even worse in a kit.

Posted by Mockingale (# 16599) on :

quote:
Originally posted by Tortuf:
Last night while watching highly educational and edifying shows on an online TV show site (McHales Navy), I saw several online ads for LegalZoom. LegalZoom is a web based legal document provider. You can form a business, draft a will, lease a house, and even set up a trust to take care of your pet after you kick off.

Why would you want to go to a lawyer and spend all that money unnecessarily?

I have made a lot of money litigating effed up wills. On the other hand, a lot of families would be a lot happier if certain dearly departed ones had made a will.

What do you think? Would you use a site like LegalZoom instead of going to a lawyer? If so when, and when not?

As a lawyer, I can't believe I'm saying this... for something like a routine bill of sale for goods or a general power of attorney or a standard residential lease for the condo your wife's aunt left behind, prefab contract forms are probably fine.

If you're talking about a will or any sort of complicated deed, you want a lawyer. Transactions worth that kind of money aren't the time to cheap out.

Posted by Nick Tamen (# 15164) on :

quote:
Originally posted by Sober Preacher's Kid:
Canada has Quebec, which uses the Civil Code. The effects are generally the same while the route to get there is different.

Louisiana's legal system also derives from the Civil Code rather than the common law.

quote:
Originally posted by orfeo:

quote:
Originally posted by Tortuf:
One of the problems with will kits and forms is they use legal phrases to make them sound more "official." That language is not always well explained.
From the example you gave, that language isn't even English. And frankly that's appalling. Never mind kits and forms, lawyers crafting individual wills should be using the English versions of those crappy Latin phrases. But it's even worse in a kit.

Per stirpes is a well-defined term of art that can say in two words what otherwise is a bit more complicated to describe. Yes, it could be said in English, I suppose, but there are centuries of case law and often statutory law as well defining exactly what per stirpes means, so use of the term provides assurance that everyone will know exactly what is intended. (Unless, that is, it is coupled with other language that is arguably inconsistent, as seems may have been the case in Tortuf's example.)

Every profession and discipline has terms of art. Nothing appalling about that all. It's about precision. But that a kit would use terms of art without offering explanation of what they mean is, to me, just another example of why those kits should be avoided.

Posted by Mr. Rob (# 5823) on :

quote:
Originally posted by Tortuf:

Why would you want to go to a lawyer and spend all that money unnecessarily?

What do you think? Would you use a site like LegalZoom instead of going to a lawyer? If so when, and when not?

Because, matey, the law and the legal profession are a racket like all the professions, and if you don't buy into that idea and fact you will, quite possibly, be screwed by the system.

"All the professions are conspiracies against the laity."
-George Bernard Shaw, from The Doctor's Dilemma, 1911
*

Posted by orfeo (# 13878) on :

quote:
Originally posted by Nick Tamen:
Per stirpes is a well-defined term of art that can say in two words what otherwise is a bit more complicated to describe.

Then use more words.

And well-defined? For who, exactly?

Firstly, as a lawyer I wouldn't have a clue what it meant without resorting to a legal dictionary or the Words and Phrases manual at work, which suggests recasting and adding an explanation of the phrase. Maybe that's because I don't practise in the relevant area of law, but, that leads me to my main point.

As a legislative drafter, in my view it is fundamentally bad to write legal documents of this kind in a way that means 'we' know the answer and 'they' don't. The purpose of a will isn't for one wills lawyer to communicate his intention to other wills lawyers. The purpose of a will is to communicate the wishes of a person, on the event of his or death, to that person's family and friends.

Writing a document that isn't understood by the intended audience OR the person whose wishes it is supposed to communicate is a terrible example of lawyers writing for themselves, and not their clients.

[ 25. October 2012, 02:26: Message edited by: orfeo ]

Posted by orfeo (# 13878) on :

Addendum: And if it was such a well-understood term, do you think the court case Tortuf raised as an example would have happened to begin with?

Posted by Matt Black (# 2210) on :

I'd like to say that I'm all for DIY-Wills of the sort sold by W H Smith here, despite the fact that I'm a lawyer who amongst other things specialises in drafting Wills, were it not for the fact that people almost always fuck them up in some way, thus leaving their nearest and dearest with at best a partial intestacy that costs them a helluva lot more in - guess what - legal fees for sorting out the mess. Most common mistakes: failing to appoint executors, failing to date the Will/ dating it in the wrong place, paper-clipping it to another document, fucking up the execution/ attestation. That's why I try to insist that clients come in personally to execute their Wills because, again, if I post it to them even with detailed, step-by-step instructions on how to execute it, they nearly always fuck it up. These are not thick-as-pig-shit people in the main, BTW; it just seems that there is this kind of weird blind spot when it comes to Wills.

Posted by orfeo (# 13878) on :

^ Truth is, I don't think people appreciate why some of those technical requirements exist, and as a result they don't pay a great deal of attention to them.

Posted by Nick Tamen (# 15164) on :

quote:
Originally posted by orfeo:
Firstly, as a lawyer I wouldn't have a clue what it meant without resorting to a legal dictionary or the Words and Phrases manual at work, which suggests recasting and adding an explanation of the phrase. Maybe that's because I don't practise in the relevant area of law, but, that leads me to my main point.

I don't practice in that area of law either, but I remember what it means from law school 20+ years ago and from the bar exam.

Sorry, I'm just not going to get wound up over using terms of art.

quote:
Originally posted by orfeo:
Addendum: And if it was such a well-understood term, do you think the court case Tortuf raised as an example would have happened to begin with?

Sure. Seen it happen many times. Like I said -- anyone can sue, and anyone who loses can appeal. Their ability to do either says nothing about the merits of their suit.

All we know of the case Tortuf cited is that grandchildren wanted immediate distribution, said per stirpes provided for that, sued and lost. And that's hearsay. We know nothing of the actual claims they made, the arguments they put forth or the reasons for the courts' decisions -- which could have been "no merit to plaintiffs' claims."

Posted by orfeo (# 13878) on :

quote:
Originally posted by Nick Tamen:
Sorry, I'm just not going to get wound up over using terms of art.

Otherwise known as jargon.

Which I spend my professional life getting wound up about. Sorry.

Posted by Nick Tamen (# 15164) on :

quote:
Originally posted by orfeo:

quote:
Originally posted by Nick Tamen:
Sorry, I'm just not going to get wound up over using terms of art.
Otherwise known as jargon.

Which I spend my professional life getting wound up about. Sorry.

No problem. I think terms of art (or jargon if you prefer [Biased]

) and "plain English" both have their place in legal drafting.

And realizing now where you are, I also wonder if there's a US/Australian difference in approach here.

[ 25. October 2012, 15:43: Message edited by: Nick Tamen ]

Posted by Matt Black (# 2210) on :

quote:
Originally posted by orfeo:
^ Truth is, I don't think people appreciate why some of those technical requirements exist, and as a result they don't pay a great deal of attention to them.

Oh, agreed, but it explains at least one reason why people need a lawyer - in this case to protect them from themselves.

Posted by Sioni Sais (# 5713) on :

quote:
Originally posted by Nick Tamen:

quote:
Originally posted by Sober Preacher's Kid:
Canada has Quebec, which uses the Civil Code. The effects are generally the same while the route to get there is different.
Louisiana's legal system also derives from the Civil Code rather than the common law.

It's those Frenchies, I tell you!

Posted by orfeo (# 13878) on :

quote:
Originally posted by Nick Tamen:
And realizing now where you are, I also wonder if there's a US/Australian difference in approach here.

No, because there's plenty of lovers of ancient legal language over here as well. I would think many law firms are full of people who copy precedents by rote, not considering whether language that worked in the 1920s is appropriate now. And indeed, just last year I heard a law lecturer beg new lawyers to not be like that, but he also warned them that they would face resistance from senior crusty partners if they dared to suggest that maybe the firm's precedents needed a little updating.

It's not geography that makes me different, it's working in a drafting office. Well, perhaps there are some drafting offices out there that are less committed to the ideas of plain English than this one. But it's part of our culture to think about questions like "who is the audience".

[ 26. October 2012, 01:18: Message edited by: orfeo ]

Posted by Sober Preacher's Kid (# 12699) on :

quote:
Originally posted by Sioni Sais:

quote:
Originally posted by Nick Tamen:

quote:
Originally posted by Sober Preacher's Kid:
Canada has Quebec, which uses the Civil Code. The effects are generally the same while the route to get there is different.
Louisiana's legal system also derives from the Civil Code rather than the common law.

It's those Frenchies, I tell you!

I love Quebec. I like speaking French and I can both read and speak it. I want to move to Quebec. But sometimes it just drives you to distraction.

Sometimes I just wish somebody had shot General Wolfe before he got to the Plains of Abraham and spared us all the next two and a half centuries of trouble.

Posted by jbohn (# 8753) on :

quote:
Originally posted by orfeo:
It's not geography that makes me different, it's working in a drafting office. Well, perhaps there are some drafting offices out there that are less committed to the ideas of plain English than this one.

As best I can figure, the state legislative drafters here are committed to the ideal of job security for lawyers to interpret the mumbo-jumbo they produce... [Biased]

Then again, as a lawyer buddy of mine always says- "Everyone knows what a word means until there's a problem..."

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