A lawyer responds to "What Lawyers could Learn from Programmers"

A couple of months back I wrote this article What Lawyers could Learn from Programmers. It was meant to be provocative and I had hoped for better responses from the law community itself.

Well now George Grellas wrote a huge fantastic comment to the original post outlining the issues as seen from the eyes of a lawyer. I’d like to really thank George for taking the time. His comments are very good and to ensure that more entrepreneurs see them, I’m reposting it as a full blog post here:

I have been a startup business lawyer in Silicon Valley for over 25 years.
I agree with your broad points that lawyer monopolies are a hindrance to good legal services and that things in law that can be commoditized can and should be for the benefit of consumers.

Six or seven decades ago, lawyers were paid to do title searches when a home was sold. Who would want to pay a lawyer to do that today whatever that lawyer’s real property expertise when title companies do that job cheaply and well.

So too simple incorporations and LLC formations can and should be done through inexpensive online services for many small businesses.

Other areas lend themselves to this as well. And more power to those who set up such systems for the benefit of consumers. They are performing a public service.

Remember, though, that law is a slippery beast.

David Dudley Field inspired adoption of the California Field Codes in 1872 with the express purpose of using ultra-simple language to permit lay understanding of the law. The theory was to take the law away from esoteric judicial rulings as much as possible and put it in “simple” statutes that anyone could read and understand. As any California lawyer can tell you today, judges and lawyers wound up “interpreting” those simple statues to the point where all the old complexity reasserted itself with the added kicker that the new statues themselves added yet another layer of complexity to the process (the question being not just what judges meant in all their old rulings but what the legislature meant in adopting the statutes themselves). This produced a whole new set of rulings that was more complex than ever, making California’s laws some of the most complex in the whole nation!

Law, therefore, in trying to capture and regulate the whole range of complex affairs, doesn’t easily lend itself to simplicity and standardization. Elements of it do, of course, but as a whole it does not. Therefore, any attempt to reduce it to simplicity must be approached with circumspection.

I personally think Nolo does a fabulous job with its self-help resources of helping consumers take some measure of control of their legal matters.

Yet, when the process is unguided, it can lead to problems.

I attempt to present the other side of this on my website in a couple of answers to FAQs. Why can’t I just use a form contract? ; What are the distinctive aspects of setting up a startup business?.

The latter item illustrates some common pitfalls in parties attempting to incorporate themselves when setting up a startup. Many will fill in their kits and follow instructions. But then they issue stock without restrictions, leaving themselves vulnerable to founders who take large amounts of stock and then walk away from the company. They fail to put the IP into their startup. They combine the “cheap stock” issuances with simultaneous investor dollar contributions in ways that create serious tax problems. These are all serious errors in forming a typical startup. Yet, when founders use kits, they have no idea about these issues. Does this matter? Sometimes not – they just fix the problems later. But often it does lead to real problems. And fixing the problems later is much more costly than doing it right in the first place.

Could the startup process (i.e., involving a team of founders with a tech business model) be systematized much more than it is today? Yes, it can. Can it be handled through online incorporation services who do nothing more than supply kits? Not even close.

When it comes to standard forms, these are useful and every attorney uses templates. But it is very wrong to assume that the process of doing contracts reduces itself to simply filling in blanks. The worst lawyers I ever hired tried to do that and little more (using my firm’s otherwise well-drafted forms) and their work always proved a disaster – I would essentially never let it out the door. Indeed, if I see a situation where a very simple form will solve a client’s needs, I always tell the client it is a waste of time to pay for attorney time for that purpose. But in almost every transaction of note the issues are almost never that simple.

Someone with a discerning eye almost always needs to review custom contracts carefully. This, of course, can be a smart lay person using self-help resources. And some people are inclined to invest time and effort for that purpose in a way that helps them manage their legal budgets more carefully because they pick up a lot of the burden themselves. But it is a burden, and it has a cost attached to it – there is always a cost-benefit component to any such effort. What is worse, many people do not do a good job of thinking through the issues and wind up cutting corners. A contract in their hands can be like a loaded gun in the hands of a six-year old – wildly unpredictable and sometimes dangerous results can follow.

Your point about lawyers’ FUD is dead on. This is a despicable practice. I have spent a long career, though, working directly with thousands of entrepreneurs – smart people who see right through anything that is phony. I always use a direct style with such clients – telling them straight how the law works, how they can manage it, and when they need something more custom. Even with this approach, there is no more than maybe 15-20% of the business law matters I handle that lend themselves to commodity handling.

One further illustration: take standard Series A funding documents drafted by national venture capital associations. These are expertly drafted and very standardized. They can be used in a fill-in-the-blank fashion. And they work beautifully. From a founders’ standpoint, however, such documents seriously distort the picture. They are in “standard” form only because they fit the pattern that VCs like. Many of the provisions in those documents can and should be resisted by founders because they can be seriously harmful to founder interests (even the idea of a reflexive incorporation in Delaware can wind up prejudicing founders). Moreover, many Series A fundings can be done with documentation that is far simpler than that found in the “standard” forms – simpler and highly favorable to founders (we use such documentation all the time when our founding teams go for angel funding, etc.).

Indeed, many “standard” contracts are prepared by interested parties who have a direct stake in slanting them in one direction only. Ever read a 50-page “standard” commercial office lease – beautifully drafted, needing only a few blanks filled in. Yet any tenant who signs such a lease without customizing it will agree to many onerous provisions that commercial landlords have built into such documents.

“Standard” contracts for the sale of a small business, in turn, are prepared by broker organizations whose main motive is to make sure a deal closes and does not have too many complications. Such documents are very professional and very easy to use – again, just fill in a few blanks. But any buyer who uses such forms in buying a business of any significance whatever will easily wind up losing the vast majority of protections (especially relating to warranties) that go into any custom contract to buy a business. Again, I try to educate consumers about these issues on my website, using not FUD but a reasoned explanation of what the issues are and where the risks lie.

I hope you don’t interpret my comments as critical or self-serving. They are not meant to be. The issues you raise are important ones and your discussion of them is very helpful. But any such discussion has to take realistic account of the true complexity of legal issues and of the limitations of standard forms and procedures.

Lawyer monopolies need to be limited or even abolished. Law needs to be made more consumer-friendly. Standardization needs to occur as much as possible. But skilled handling of the law and its complex aspects will never reduce itself to simple forms or procedures. Any balanced discussion of this topic needs to take that into account. Legal complexity cannot simply be wished away, no matter how gifted the people trying to program the standard algorithms (to borrow the programming analogy). And the motives of interested parties who stand to gain from such standardization cannot be ignored.

Sorry for burying what amounts to a 1,500 word piece within the scope of comment. Please accept this in the spirit of my validating the importance of the issues you raise and wanting to further that debate by taking all important factors into account.

Please visit George’s firms website as it really seems to be a fountain of knowledge for small business and early stage startups.

My main comment is that this is exactly what we as startups wish for from our lawyers. A sparing partner, who understands our needs and is able to explain the issues that most of us non lawyers don’t instinctively understand.

Most entrepreneurs I know complain about the lack of transparency, the FUD and all the things I complain about in the original article.

George Grellas associates seem very transparent. Even their billing practices page page would make me feel more confident about making that initial phone call. Maybe us programmers could even learn from that as we often end up being not too transparent in that end.