The Debate on “Unbundling” Your Legal Help Versus “All or Nothing”

Before continuing to dive into Discovery, I wanted to take a detour (I promise I will get back to the discovery issue next week which will be MORE relevant after this post).  Something came up this week in a committee meeting about Family Law in Oregon that begs the question:

"Why don’t more people use “unbundled” services instead of taking an “all or nothing” approach to hiring a lawyer?"

Before jumping in on this, I want to define who the “people” are in this question.

First, I’m not talking about folks with no money left over after covering housing, food and necessities. They don’t really have a choice to spend money on a lawyer. “More affordable” unbundled legal services still aren’t affordable if there isn’t enough to go around. Hopefully, they qualify for legal aid.  If you fit in this category, check out legal aid.

Second, I don’t wonder why people who can easily cover an extra $1,000, $2,000, $5,000 or $10,000 a month do so. The truth is  that divorce, custody etc. have long term implications so investing $10,000, $20,000, $50,000 etc. makes sense if you have access to that kind of cash.  

No, I'm not puzzled by folks on the far ends of the financial spectrum.

I am curious about all of you in the large middle area.

Why aren’t people who neither qualify for no-fee legal services nor have money to pay the typical monthly legal bills using unbundled services?

1. Is it because people don’t know about unbundled services?

If this is you, know that you aren’t alone.

Ask a group of lawyers what “unbundled services” actually means, and you're likely to get at least a few blank stares. 

Ask that same group how many offer unbundled services and you won’t see a bunch of hands.

That’s because it's easier to do things the way lawyers have for the last 100 years – sign up the client, create a plan and do it. It takes more time to teach and explain than just to do it oneself. This is especially true if there's a litigation assembly line in place. 

It’s also more profitable. As I’ve explained before, because family lawyers bill for their time, the more they/their staff do, the higher the bill.  Doing all of the work (including the easy parts) makes more profit. And it's less costly to sign up one client for whom the lawyer does numerous tasks than to sign up numerous clients for whom to do one task. 

For these and other reasons,  lawyers aren't rushing to unbundle. Therefore, its no wonder that they

• aren't generating  marketing information that promotes unbundled services
• aren't seeking press coverage about limited scope services

Frankly, neither is Oregon Bar Association or the Oregon Judicial Department. Go to their websites and you won't find 

• articles explaining unbundled services in plain language
• listings or websites of where to find the lawyers providing unbundled services

If the lawyers, our bar association and the courts aren't explaining unbundled services or listing limited scope lawyers, it's no wonder people aren't aware of this choice.  

Did you know about unbundled options or where to find lawyers who offer them? 

2. Is it because people who've heard of unbundled services don’t understand how they could work for them?

This possibility rings very true and is closely related to #1 above..

Without any materials on public websites giving guidance to the public, it's no mystery why people may not know how to take more advantage of unbundled options. Google limited scope attorneys and you aren't likely to find resources from the bar or courts that

• explain how to use unbundled services in your case
• give you real life examples for your type of case
• give you examples of budgets to compare the two types of services

This is where it really helps to have someone explain what actually happens in a case, highlight the hard to navigate parts and map out where you could save money doing it yourself.  Talking through the way to get some legal help without committing to a blank monthly check for work you could do yourself can  really make the difference between affordable help and going into debt.  Working out a limited scope plan also avoids the dilemma of getting a  good outcome by getting help or going it alone only to find out that your outcome has to be redone or remains badly wrong.  

Were you interested in saving money in your case but didn't understand how  unbundled services could work for you?

3. Is it because people don’t understand how much full service representation costs or how unbundled services save money?

This explanation makes all kinds of sense to me.

If you doubt that the full service price tag is unclear, just ask your lawyer to tell you exactly how much your case will cost. Unless they do fixed fee cases (which are lawyer unicorns-possible but extremely rare), they’ll likely tell you they don’t know because of all the different things that can happen in a case to drive up the costs: 

• your documents are a mess or non-existent, requiring a lot of discovery; 
• your spouse is acting out so you are going to need the judge to be super involved;
• you're may  have a lot of questions and/or need a lot of meetings;
• your case won't settle (though this is statistically unlikely, if it is settled at the last minute because no one pushed for a conference, you will have spent the money to prepare for trial)
• the case keeps getting moved so the file stays open longer, etc. 

And the truth is, these are all valid reasons why a bill goes up. 

So if the lawyer doesn’t know how much a case will cost, there’s no way you can know that... until you get the bills. If you sign on the dotted line, write a retainer check and can find ways to cover the next 6-9-18 months, you'll be lucky. If you're unlucky, after you get part way into your case, you run out of money and either go into debt or lose your lawyer (remember, lawyers are like everyone else: they depend on their paychecks).

The lack of explanations and articles mentioned in number 1 and 2 above means that there aren't great resources showing you how you can stretch your dollars over the course of your entire case (to get my thoughts on this  see my post on why you should treat your case like a vacation  (spoiler alert: this is about budgeting not touting court as fun family activity). 

Were you impacted by the lack of  easily accessed, plain speaking about the costs of full service versus limited legal services?  

4. Is it because people don’t understand the work they are going to do in both types of legal services?

If you think that hiring a lawyer shifts all  the worry, work and stress of your case off your plate and onto your lawyer's, think again.  Just because you hire a lawyer doesn't mean  you  just sit back and wait “until you win,” 

Good lawyers will always involve their clients in every major strategy decision. After all, it's the client that has to live with the outcome. They should  have a voice and the choice.  That means that you'll be spending time, energy (and money) working with your lawyer to understand the process and make informed decisions.  You can't just check out for the 6-18 months your case will take to complete and leave everything to your lawyer. 

Wise lawyers know their lane.  They advise; the clients decide. Not only will you be the one to live with the impact of choices and rulings, your decisions mean you have ultimate responsibility for your case. You can't truly give all the responsibility to your lawyer.

Experienced lawyers take the time to collaborate with clients, including getting information, documents and opinions. While you could opt out of participating in your case as much as possible, it's unlikely you can just ignore case preparation.  Even if you could, that doesn't mean you should.  Without your lived experience, your case will be the poorer. The best outcomes almost always follow solid preparation that offers the judge the details, the arguments and the facts s/he needs to get your case right. Sidelining yourself or letting your lawyer sideline you is a risky move.    

No doubt paying to leave all the work in your case to your lawyer or trying to give all the decisions over to the lawyer may seem easier or better. It may even be so in the short run. However, it rarely works out that way.  Once you are involved in court, you are going to have to invest a certain amount of time and energy.  The question is how much of that do you want to spend to save significant costs and fees?

If you went with a traditional lawyer, were you clear up front what it was going to cost?  Did you do a cost comparison with unbundled legal services?

5. Is it because people don’t think they can self-represent with unbundled legal services?

This is also a very likely reason. It makes sense that people doubt their ability especially when there isn't a lot of guidance about how unbundling helps.  If there aren't case examples or information about how you can strategically work with a lawyer to amp up your ability, it's easy to see why you might not see the value of unbundling.  And if you can't see how it can work and benefit you, why try it at all?

You might see unbundled legal services as basically no legal services in which case, working with facilitators, getting suggestions from friends or surfing the net may seem like good substitutes for targeted legal advice. You might not know that what you are actually doing is going it alone (the "nothing" in our all or nothing choice).  But what if it wasn't? What if you could do it yourself without going it alone? 

The first (going it alone) has all sorts of pitfalls:

• you don’t know what you don’t know - about the judge, the law and the process
• you aren’t a lawyer so you don't speak legalese
• there are a lot of rules (including the rules of procedure, the trial court rules and the local supplemental rules - oh yea, there are also "consensus statements) that change all the time
• there are a lot of laws which get refined by the courts in cases that impact outcomes
• because it's your life, you may not see your case with the detached objectivity the judge will have

The second (doing it yourself) assumes you will be doing the work BUT that you'll have

• guides
• tools
• information and
• consulting at key points in your case or whenever you are stuck
• an instructor before and during your case 
• a coach to review and offer corrections

Think about it like driving a car.  You could just get in the car and drive, hoping you'd figure out what the signs mean. You could just fiddle with the  features as you drive and hope you find the signal/lights/wipers in time.

Or

 you could take a driver's education course with an experienced driver to point out hazards, tell you when to stop and when to yield, explain how to turn on key features, explain the rules of the road and offer feedback to avoid problems.

In either scenario, you're the one in the driver's seat but one is a whole lot safer than the other.  And of course, both are cheaper than hiring a chauffeur or living on Uber. 

Like the driving teacher, an unbundled lawyer can help guide you, answer questions, give you tools and analyze the hard parts. That’s the beauty of unbundled services – it breaks the stale mate between all or nothing; between being on the sidelines or calling all the plays.

Do you think that you can't benefit from unbundled legal services?

Those are the  five best guesses as to why more people don’t use unbundled legal services. But we'd love to know what YOU think!

What is stopping you from unbundling? 

What is it that would make it easier for you to unbundle?

What would you like the unbundling genie to grant as your unbundled wish?