February 2002 

The Myth of the Form

By Jeff Alden

"A form, having neither experience nor a brain, can't figure things out by itself."

Don't you just have a form for it?" is a question most business lawyers have heard more times than they'd probably care to remember. If they're like me, they usually produce some vaguely unsatisfying answer ranging from a simple "No!" (particularly if it's late Friday afternoon) to the more ambiguous: "Well, it's not quite that simple." The prospective client then responds with a doubtful nod signifying both distrust and a kind of global understanding that we all have to make living.

The Myth of the Form is endemic to the legal profession and a cousin to other related questions, such as: "You want that much ... for that?" "Say what?" and "You've got to be kidding!" To the attorney with a more introspective turn of mind all of these inquiries boil down to the big one: "How do you justify your existence?" These questions are rarely asked directly, but nonetheless can hover corrosively just under the surface of the attorney/client relationship.

Because I've often wondered about the same things my clients ask me, and because I know I've been guilty of doing a poor job of explaining the answers, I've decided (not without considerable trepidation) to take one more stab at trying to respond to that most basic of questions: "Why can't you just use a form?"

I believe that the answer gets to the crux of what it is a lawyer does. A lawyer is a person you hire to try to help you get through something potentially difficult that hasn't happened yet. I suppose you could say that about most professionals: the real estate agent who's going to help you sell your house; the doctor who's going to operate on your prostate; the professor who's going to explain for you the wonders of double-entry bookkeeping. So what's the difference between these people and lawyers? It has a lot to do with the unpredictability of life.

Whether you need a contract, a will, or a good defense, you're hiring a lawyer to help you plan for a situation (be it your death, the sale of your business, or a trial) that hasn't occurred yet but could. Because all of these examples involve planning for a part of the client's life that hasn't yet been lived, they may unfold in any number of complex and unexpected ways with significant consequences to him or the people close to him.

In order to get the client through a part of his life that hasn't happened yet, the experienced lawyer has to mull things over quite a bit. She will have to consider all of the different possibilities that might flow from the client's decision to do a certain thing, such as devote all his time to selling widgets on commission, purchase a franchised restaurant in Bemidji, or enter into an agreement that will require his company to buy him out when he wants to retire.

Boilerplate (that's whole paragraphs which have been used before) may be available for any of these situations and most lawyers will try to incorporate it into the documents they draft. But it's the thinking -- the just sitting-there-with-a-pencil-and-paper thinking -- that you're hiring a lawyer for. That and her experience.

What happens if your biggest widget sale doesn't close until after you've left the company and they don't want to pay your commission, or after a few years (just when you're really starting to make it) the franchisor decides to locate another restaurant right down the street, or you're finally all set to retire but your company refuses to cash you out? These are the kinds of future possibilities a lawyer thinks about and tries to draft against. A form, having neither experience nor a brain, can't figure things out by itself.

One reason it's hard to explain what a lawyer does is that you can't see her doing her work. Unlike the guy who tuckpoints your chimney, your lawyer at work thinking is not visibly doing anything. Thinking is invisible. Most good lawyers think about their cases constantly; a legal problem isn't something you can just turn off or on. But sometimes the only tangible result of all that thinking may be a document of 15 or 20 pages that the client doesn't really understand. For all he knows, it's nothing more than a form you've used a thousand times before.
The one thing that's both the hardest to get and the most important to find in the attorney/client relationship is trust. If you can't see your lawyer thinking, then how do you know that she is? At least how do you know before you finally have to rely on that incomprehensible document when crunch-time comes?

This is going to sound self-serving, I suppose, but I sincerely believe that in law, at least as much as in anything else, you get what you pay for. Of course there will be exceptions to this rule, and I'm not saying you should go out and hire the most expensive lawyer you can find. But most lawyers charge roughly by the hour. Even if they quote a lump-sum price, it's going to be in part based on how much time they think it's going to take. Even contingency fee lawyers factor in the amount of work they estimate the case is going to require and weigh it against the chances of success. It only stands to reason (though it may fly against your basic instincts) that you should hire the experienced lawyer who's going to put in more rather than less time on the problem.

Obviously, the best way to find a lawyer you trust is to rely on the experience of a friend or acquaintance who has used her before. The trick here, of course, is that you also have to trust that person's judgment, which may only add another layer of uncertainty to your search. Of course once you've retained the lawyer, there are things you should be looking for as indicia of trustworthiness. Does she return phone calls; send you copies of letters; send you preliminary drafts of important documents so that you can review them and offer your opinion? Does she ask you questions in a free give-and-take way, indicating both that she knows what to look for and that she's actually listening to you? Does she get the job done reasonably promptly?

Unless the answers to all of these questions are yes, you've probably got the wrong person. In fact more than likely you've hired the one who just happens to have a form for it which, if I've been able to get anything across here at all, is the last thing you want.

The other day a client faxed me a copy of a power-of-attorney under which he'd hoped he'd be able to make decisions for his aging mother when the time came. The time had come, and he'd tried to use the power-of-attorney only to be told at her bank that it was out of date and wouldn't work anymore. My client's mother's lawyer -- the one who'd drafted her will -- had also drafted the power-of-attorney. It was on a form, nice and neat and official-looking, and couldn't have taken the lawyer's secretary more than five minutes to fill out. The thing that sticks in my mind is that the form was out of date and basically worthless the day my client's mother walked out of her lawyer's office, no doubt pleased that she'd taken care of things and it hadn't cost her much.

So what am I going to say the next time a prospective client asks me (with that knowingly skeptical look), don't you just have a form for it? Hmm. I'll probably start with something expansive like, "Well, it's not quite that simple ... ." Or maybe, especially if it's getting late on a Friday afternoon, I'll just say: "No!"

JEFF ALDEN is a sole practitioner in Minneapolis whose practice focuses on problems encountered by small businesses. He received his J.D. from Seattle University School of Law and he is a graduate of Princeton University.