I read somewhere that some lawyers are suggesting that the courts or the legislature develop standard guidelines for alimony. The idea seems to be that there is too much variation from judge to judge, region to region and the public would be better served with a more predictable and uniform system. We had better be careful with this; we might put ourselves out of business.
I am reading a book called The Innovator's Guide to Growth, published by the Harvard Business Press. (A friend of a friend is one of the authors, so the price was right.) Clayton Christensen wrote the foreword, and I am a big fan of his views. Christensen's observations of how "disruptive" technologies allow new entrants access to closed markets, to render obsolete long-established systems and to displace traditional market dominators goes a long way towards understanding what is happening to the practice of law.
The authors of The Innovator's Guide note that one way to develop new markets is to study the production and consumption of a good or service. If there is a "long chain" between production and consumption, you may be observing a "skill-based" market constraint. By replacing a "skill-based" system with a "rule-based" one, you can simplify entrance to the market for non-experts and create a new field of commerce.
An example the authors use to illustrate this is the development of simple-to-use defibrillators to treat heart attack patients. Traditionally, the knowledge necessary to successfully shock a heart back to action was something only the most experienced medical personnel had. It represented a true "skills-based" constraint on new entrants to the defibrillator market. Only a trained doctor could work such a machine, so the market was limited to hospitals and emergency facilities.
With the development of simple machines that could be adequately operated by lay persons (just follow the rules printed on the box!), a lay person could suddenly do just enough to keep a person alive until medical experts arrived. Suddenly, a new market for defibrillators sprung up. These can now be found in every gym, many courthouses and in other public places. Doctors and emergency medical personnel are no longer the only ones doing defibrillation. This was a great breakthrough if you make defibrillators, a whole new market. It was not so great for the doctors and the EMTs.
We can see this phenomenon at work in our own profession. Trying to make the civil justice process less confusing and more open to self-represented parties, the court system developed a robust catalogue of "do-it-yourself" forms and guidelines. Things became routinized, and guidelines and standards were established for most cases. A skills-based system was replaced with a rules-based one.
Now, instead of hiring lawyers to do simple divorces, litigants can watch a YouTube video and do it themselves. A skilled profession has been replaced with a do-it-yourself, rule-based, system. And many lawyers are out of business. If we replace a skills-based alimony system with a rules-based one, the market for legal services will shrink even more. Great if you market "how-to" books. Not great for lawyers.
But let's assume this is going to happen anyway. How do we make ourselves relevant in this new market? Maybe we can focus on explaining that not every legal problem can be solved with a "do-it-yourself" form. You might be able to shock a heart attack patient back to life using a gym defibrillator, but you probably should take him to the hospital anyway.
Making forms available without someone available to explain not-so-subtle things like the difference between gross and net income may be setting lay people up for disastrous results. The real risk is in what folks don't know they don't know.
Like many lawyers, I get calls from people seeking guidance on how to do their own legal work. Some are lawyers seeking advice about the specialized work I do. Others are lay people. I tell most of them, lay and lawyer alike, that representing themselves is like doing your own dental work. It is theoretically possible to buy a book or watch a YouTube video and to do it right, but the results are usually painful and suboptimal.
One recent caller was a law student who thought she could handle her own bar admission hearing. "Oh," I said, "how many of these have you done?" "None." "Well then, how many cases have you tried?" Same answer. "Then why do you want to stake your whole career on the off chance that you will get everything right the first time?"
She wound up with a very experienced colleague who got her admitted. A friend who watched the hearing said it was the best he had seen. Some things are best left to the pros.•