THE BLOG
10/31/2013 02:40 pm ET Updated Jan 23, 2014

My Father's Will: What Lawyers Must Respond To

My father recently prepared his will. This is a matter in which I have an interest. . .

As a law school dean, I asked my father what lawyer he had hired for this important task. He, an engineer with a doctorate, informed me: none. A friend of his, another engineer, had given him a form. His friend had used it, too, and said it could be relied upon. The friend, being alive, has not had an opportunity to test his confidence in the disposition of his estate.

Although I wish my father had retained a professional, I understand why he did not. My father resembles most potential clients for legal services of this nature. He would like the job done well, cheaply, quickly, and in accordance with his instructions. My family is not wealthy. There likely is very little that my parents wish to bequeath to my brothers or me, or anyone else for that matter, that requires any elaborate provisions. (I suppose there could be some secret I don't know, but I'm not much worried.)

As a result of my father and others like him, three trends are underway in the legal services marketplace.

First, legal work is becoming stratified in complexity, and, as a corollary, cost. Legal work has always been stratified, but the degree is increasing significantly.

It turns out that white-collar, creative, intellectual professions are subject to the same market forces as blue-collar, low-skilled, manual labor. Actually, it is only a conceit of the professions that there is a great distinction between what they do and what others do: someone in the trades may well possess considerable expertise and be compensated comparably to an individual with a graduate degree. Some, but not all, legal problems demand custom solutions; much of it, however, can be resolved with off-the-shelf responses.

The complication with legal analysis, like medical diagnosis, is the initial assessment can turn out to be wrong. What looks simple may turn out to be the opposite. The risks may be invisible to the untrained eye -- or the poorly trained eye. Even a full-fledged member of the bar may have difficulty with the Rule Against Perpetuities or other malpractice traps. (The neo-film noir Body Heat is the only movie I know of that shows this legal doctrine working to great effect.)

What is more, there is not a strict correlation between complexity and cost. Some issues are tricky without being associated with any source of funding that would cover the true costs.

Second, either lawyers will have to adjust their expectations to remain competitive or they will end up losing opportunities. Some high-end firms have given up on trusts and estates departments altogether.

In some instances, laypeople will try do-it-yourself options. Even if they should not be doing that, there might be such a mismatch between the fees lawyers wish to charge and the bill clients are willing to pay, a significant segment of the market that would do well to have counsel will do without it.

In other instances, regulators are willing to experiment with limited licenses. As has been true in the medical industry, with technicians drawing blood (their fancy name is "phlebotomist"), the legal industry appears headed toward specialists who, for example, may draw up wills and trusts without being authorized to do anything else.

Third, the very conception of law will be transformed by technology, as virtually all aspects of our lives has been. The uniform law movement is a precursor. Formal codification of the default rules for transactions makes commerce much more efficient.

As a society, we actually would benefit from templates that are sufficient in general but which could be customized if need be. A statute can be turned into a system of checklists, and those then can be implemented digitally as a drop-down menu. Until now, we have proceeded from the rules to the forms. Our comfort with virtual reality suggests we could reverse the sequence: We could start with the form and use it to generate the rules.

These possibilities are not limited to the drafting of documents such as my father's will. Alternatives to marriage, developed in part for same-sex couples, bundle together rights and responsibilities selected a la carte. The concept can be extended from transactions to litigation. Modern intellectual property litigation involving portfolios of rights turns on statistical assessments of the strength of the competing parties; mass tort law likewise incorporates assumptions about aggregation and averages.

My father knows the future. I must heed him.

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