The Legal Industry Sucks. Here’s How to Fix It. (Part I)

My brother is a periodontist. He performs root canals for a living. As I like to remind him whenever possible, dentistry is not exactly a sexy profession. There aren’t any TV shows about miracle-working orthodontists averting cringe-worthy family disasters by putting braces on the teeth of acne-riddled, upper-middle class teenagers; steamy melodramas seductively detailing what takes place in the denture lab after dark (“Wow, your bicuspid . . . I’ve never seen one that big before.”); or action movies featuring white-coated heroes valiantly fighting the War Against Tooth Decay. Consistency is a defining characteristic of dentistry. They’ve even been using the same sadistic instruments to clean teeth since approximately the Spanish Inquisition. The only well-known example of a dentist going rogue is the one who didn’t recommend Trident to his patients who chew gum, and he hung up his floss years ago. Dentistry is dull and predictable, which is precisely why most people would rather get a root canal than consult an attorney.

Here is a list of things you get from your dentist that you will almost never get from a lawyer.

(1) A diagnosis. When you visit a dentist with a complaint, she listens to you describe your symptoms, performs an examination, and identifies the problem, for example, your tooth hurts because the nerve is dying. There is a given remedy for the ailment. Lawyers have no such process and give no specifics; we trade in hypothetical scenarios and possibilities and eschew identifying a likely outcome. After a lawsuit over a car accident is filed, your attorney will give you a host of potential results: You could be entitled to a large recovery, might get a small recovery, are potentially liable for property damage and personal injuries, could be on the hook for punitive damages, might be charged with a misdemeanor, may potentially be hit with a felony, or could be facing the death penalty. Which is it? Well, we can’t say for sure, it’s somewhere between getting very, very rich and lethal injection. You rarely walk out of a meeting with counsel with any sense of direction or certainty.

(2) A plan of action. The dentist will give you a definitive road map to the problem’s resolution. If the nerve is dying, the tooth must be removed. There may be one or two common complications, but you go into the procedure understanding them and expecting a given outcome. Lawyers offer lists of seemingly limitless contingencies, substituting the truth — “I have absolutely no idea how this is going to turn out” — with a stream of “if … then” statements which taken together translate into “I have absolutely no idea how this is going to turn out.”

(3) A resolution. You know in advance that there is a solution to a dental problem. At some point, relatively sooner than later, the procedure(s) will be finished, and you will have recovered and resumed your daily-routine. In the law, cases can drag on for years and have sometimes unforeseen, life-altering consequences.

(4) Really, really potent drugs. If you are getting really, really potent drugs because you retained a lawyer, you either hired someone extraordinarily unethical or just lost your last-ditch death penalty appeal.

You can’t blame the legal industry or attorneys for the fact that modern jurisprudence is complicated, time-consuming, and breeds uncertainty. A system that in theory prioritizes truth, fairness, and reaching the right outcome over expediency cannot always be economized and will never be reduced to an assembly line. But the industry not only does remarkably little to address its inherent inefficiencies, it sometimes greatly exacerbates them through a combination of factors including incredibly ham-handed bureaucratic mismanagement, an internal caste system that penalizes small firm counselors and sole practitioners who are often better-positioned to address certain matters, an aversion to (or at least an unwillingness to engage in) wholesale technological innovation, and an inability to adapt quickly to changing economic realities. Only in the law could the fictional standard-bearers of yesteryear — Atticus Finch, Matlock, Denny Crane — remain culturally relevant. Does any 21st Century aspiring doctor look to Trapper John, M.D. as a role model?

Attorneys — myself included — do possess a remarkable abundance of arrogance . . . even the ones who aren’t nearly as good at the practice of law as I am and should be a hell of a lot more humble. (That was a joke. Get it?) But even the most hubris-infused among us would not presume to have all the fixes for a massive system that cannot approach attainment of its lofty ideals because it is too mired in its own inertia. Lawyers have spent years trying to fine-tune the system. The American Bar Association and its state counterparts are constantly studying and debating all manner of problems and potential solutions. There are countless law review articles proposing a seemingly infinite number of changes. I know, I’ve written several. They are so boring that each should have a warning label advising potential readers that consumption of more than a paragraph in a 24-hour period may result in sexual dysfunction, coma, drug addiction, and death. It’s worse than watching Baltimore Orioles baseball.

What I can offer are the observations of one practitioner who’s been at it for close to 25 years working with entrepreneurs and small businesses. This is a grossly under-served market sector; its potential consumers have a deep distrust of the legal industry and frequently don’t understand how attorneys can add value to their ventures. Social media posts often vilify lawyers and offer counterproductive hacks to sidestep attorneys all of whom are accused of overcharging for the unnecessary services they foist upon naive entrepreneurs. One key cause of this misunderstanding is a failure of the legal industry to give practitioners the tools and the latitude to properly educate and serve this consumer base.

In this series of blog posts, I will examine in detail the legal system’s failure to adequately serve the entrepreneurial community and propose solutions. I welcome feedback, thoughts, comments, and questions. And criticism. I can take criticism. I’m a lawyer, after all.

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