I’m coming late to the discussion of “good enough” in the context of legal services.
I’ve encountered several blog posts that come at this issue from different perspectives, including this one by Carolyn Elefant, this one by Ron Friedmann, and this one by Wayne Schiess.
Some of the recent discussion of this topic was prompted by Robert Capps’s August 2009 article in Wired magazine, “The Good Enough Revolution: When Cheap and Simple Is Just Fine.” Starting with a discussion of the Flip camera, which has triumphed over more expensive and feature-laden cameras, Capps argues that consumers are increasingly valuing convenience over quality:
So what happened? Well, in short, technology happened. The world has sped up, become more connected and a whole lot busier. As a result, what consumers want from the products and services they buy is fundamentally changing. We now favor flexibility over high fidelity, convenience over features, quick and dirty over slow and polished. Having it here and now is more important than having it perfect. These changes run so deep and wide, they’re actually altering what we mean when we describe a product as “high-quality.”
But to lump together the Flip camera and provision of legal services is to mix apples and oranges. When I’m pondering which video camera to purchase, I can readily acquire the information necessary for a cost-benefit analysis—information regarding price, video quality, ease of use, and so on. And I’m entirely able to do the cost-benefit analysis myself.
By contrast, when someone purchases legal services, those services don’t represent an end. Instead, they’re a means to an end, such as a favorable outcome to a dispute or successful consummation of a transaction. But achieving that outcome usually involves factors about which one has imperfect information or over which one has limited or no control. That adds uncertainty to any assumption that a given level of legal services is “good enough” to achieve the desired outcome. A client may well be ill-equipped to make that sort of judgement call. And when lawyers makes that call on behalf of a client, they may find themselves second-guessed if the result is unsatisfactory. So “good enough” is problematic in the context of legal services, as Bruce MacEwen noted in this recent post on Adam Smith, Esq.
But I have a bigger beef with “good enough” in the context of contract drafting. Here’s what Capps’s article has to say on that subject:
In fact, Good Enough tech is already gaining a foothold in two other huge industries: the legal profession and health care.
Richard Granat is a pioneer in a field called elawyering. It shouldn’t be confused with Web sites that merely offer legal documents for downloading, Granat explains. Elawyering involves actual lawyers, and clients who use these services get help sorting through legal issues.
Granat, who runs his own law firm and cochairs the American Bar Association’s task force on elawyering, has designed and marketed a number of Web tools that walk people through common legal procedures. He created a child-support calculator, for example, which assists couples going through relatively amicable divorces. There’s also a tool to help people decide whether they need Chapter 7 or Chapter 13 bankruptcy. These widgets then generate legal forms, which may be reviewed by a licensed attorney who can make suggestions or offer advice over the phone.
It turns out to be a remarkably efficient way of offering what Granat calls legal transaction services—tasks that are document intensive. For everything from wills to adoptions to shareholder agreements, elawyering has numerous advantages. It’s cheaper, for example; a no-fault divorce, Granat says, might run a fifth of what seeing an attorney would cost. It’s also faster—customers can access the tools anytime and never have to interrupt their day to meet with someone in a distant office. Simply put, elawyering makes certain legal services more accessible.
There are trade-offs, of course. “The relationship has less richness than what you’d get from sitting in a lawyer’s office,” Granat says. “And if you have an issue that’s more complex, then you still need to see a lawyer face-to-face.” In other words, it’s a lower-fidelity experience.
But for most simple legal interactions, elawyering is, well, Good Enough. It gets the job done, even if it doesn’t let you ask every question or address every contingency. And not surprisingly, it’s on the rise. “Elawyering will be mainstream in three years,” Granat says. “I predict that in five years, if you’re a small firm and don’t offer this kind of Web service, you’re not going to make it.”
“Good enough” may work as a label for allowing consumers to generate their own legal documents, but it would be wildly misleading if applied to using information technology to commoditize the drafting of business contracts. It suggests reining in one’s urge to perfection, whereas mainstream contract drafting is redolent of anything but perfection.
To do it rigorously, commoditizing the drafting process would require (1) using a sophisticated and intuitive document-assembly software such as ContractExpress (developed by my sponsor, Business Integrity), (2) developing document-assembly questionnaires that accurately reflect the law and industry practice, and (3) using modern and efficient contract language. Those who use such a system—whether their own or one maintained by a yet-to-be-established vendor—would not only produce drafts in a fraction of the time that it would take using the traditional process, they would also produce drafts that are much clearer and better express the transaction. There’s nothing “good enough” about that—instead, it would represent a dramatic improvement.
Of course, any drafter would still be faced with the question of how risk-averse to make a given draft—whether addressing a given risk would represent more of a distraction than it’s worth. But it would be misleading to lump that in with “good enough,” as such judgment calls don’t involve the quality trade-off inherent in the label “good enough.”
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