I had not been in Woodstock, Vermont, for a few years, but spent
a few days there recently as your Massachusetts Bar Association
representative at the New England Bar Association meeting at the
Woodstock Inn. When Hurricane Irene hit Vermont with a vengeance
last year, much of the Woodstock Inn was under water. I am happy to
report that the inn seems fully recovered, with its amiable staff
very accommodating as usual. With the Vermont Bar Association as
the host, there were many Vermont lawyers and judges in attendance,
all very welcoming to us as interlopers from Massachusetts.
Reports from the presidents of the other New England state bar
associations were comforting, as I was struck by how similar the
issues are that we all face. For example, chief justices from
several of the states discussed issues surrounding pro se
litigants. As we have observed in Massachusetts, these problems are
at least twofold: litigants who cannot afford to hire lawyers and
those who have chosen not to hire lawyers. As for the former, pro
bono activities and attempts to get more funding for legal services
for the poor are underway, but it remains to be seen when, if
anytime in the near future, we truly can meet the legal needs of
the poor. As for the people who have chosen not to hire lawyers,
that may present a more complicated challenge for our profession.
Anecdotes from some of the chief justices included one regarding a
divorce litigant, who, when her case was called after she had heard
the sitting judge explain to a pro se litigant ahead of her the
procedure and substance involved, literally fired her lawyer in
front of the judge, announcing she did not need the lawyer's
services. That litigant's decision illustrates the fundamental
problem of the value and pricing of lawyers' services. To the
extent that some in our "legal marketplace" who can afford legal
services are choosing not to hire lawyers, that says, implicitly if
not explicitly, that some lawyer services are deemed to be too
expensive in terms of a cost-benefit analysis.
Later at the NEBA conference, a legal consultant talked about
certain legal services being commodities as compared with legal
services he described as "value" legal services. We all can debate
what, if any, legal services should be described as commodities,
but the marketplace already is viewing and thus defining certain
kinds of legal services as essentially routine and not really
requiring a lawyer. We all know that there are a number of well
advertised services that have cropped up, offering these legal
"commodities" at prices with which ordinary practitioners likely
cannot compete. What we see happening in many areas of law practice
is downward pressure on fees, as a result of market forces. We
cannot ignore this phenomenon. It is one of the elephants standing
in the corner of the courtroom.
By contrast, we see so-called "value" legal services being less
sensitive to price. Again, borrowing from the consultant, why that
is so relates to what clients value most in their relationship with
their lawyers: trust and confidence in the lawyer, the lawyer's
opinion, and the lawyer's ongoing commitment to solving the
client's problems. Interestingly, in the arena of "value" legal
services, clients seem to define and most value the relationship
with the lawyer in terms of the trust and confidence, taking
competency and expertise as a given. If we examine our own
practices and our relationships with our clients, we all can see, I
think, considerable validity in the foregoing. That said, what do
we do about the changes in the marketplace?
Those of us who regularly represent business clients routinely
discuss with the client and jointly engage with the client in
cost-benefit analysis regarding the legal problem or task at hand.
Business clients readily place dollar values on problems and
evaluate the cost of legal services accordingly. While the dollar
value attached to a particular problem may not always be precise,
the exercise itself underscores the importance of understanding the
value of the legal services to the client. This exercise is a given
in the business sector. While it may be difficult to put a price
tag on certain personal legal matters -- for example, custody or
visitation issues -- cost-benefit analysis of legal services is
imperative. It may be that certain traditional ways of solving some
kinds of legal problems are simply too expensive in relation to the
perceived or actual value of those services.
I suggest there needs to be examination and reconsideration of
the way we provide legal services. I think that is a useful
exercise across the board in our profession. In some areas the
marketplace already has provided for that examination and
reconsideration. However, I believe this examination and
reconsideration is best undertaken within our profession. If we do
not do so, the marketplace simply will do so for us.
Regarding one of the legal arenas affected by some of these
market forces, I also had the pleasure of attending the MBA's
Family Law Conference in Lenox. Judges and practitioners together
addressed changes in the family law arena, along with the need to
continue to find ways to process cases more efficiently and
productively, even with reduced resources. This kind of joint
effort addressing problems in our profession is exactly the type of
reconsideration and evaluation that needs to be ongoing in most, if
not all, areas of our profession.
I was energized and heartened by the thoughtful comments I heard
in Woodstock and Lenox. As a result, I suggest we all have good
reason to be optimistic regarding our collective efforts to improve
the delivery of legal services and justice for everyone.