It's Not About the Paper (It's ALL About the Service)

Recently, a new client asked me to review an Estate Plan prepared by another attorney. Why would they be bringing it to another attorney for review? They had a nice folder full of documents, but more importantly, they had many unanswered questions and concerns. They weren't comfortable with their own estate plan!

The documents were reasonably well drafted, and contained language which clearly met the "industry standard." While my documents are different, and while maybe I could try to justify that they are somehow "better," the documents are not really the issue.

So what was the problem? It is a concern that seems to arise all too often. The attorney was unavailable to the client, not returning calls and not meeting with them after the first introduction and/or seminar. They were "boilerplate" and did not reflect a close connection with the client and their wishes. And perhaps most importantly, a significant source of frustration for the client was their lack of understanding of what the documents said, how they fit their particular circumstances, and what alternative provisions they might have.

"Legalese" in estate planning documents can be daunting, even as we have tried to make them more "plain English." But I don't think it is the documents, or the wording in them that is the real cause of the client's angst.

We are professional counselors and clients do not come to us just for document preparation. They come to us for our advice, experience, and expertise in applying the principles of our profession to their particular circumstances. They want, and deserve, some professional "TLC."

This is not a concept that is peculiar to lawyers. Lawyers, accountants, financial planners, bankers, brokers, insurance advisors and trust officers are subject to this concern. It is what separates us as professionals from technocrats. Certainly we produce and sell "products." And certainly, it is critical that the "product" that we produce for clients be superior. But it is not really the product that our clients seek. It is a personal relationship in which we impart some wisdom, borne of our years of training, experience and the relationships we have forged with clients.

As another year nears its end, I am moved to re-commit myself to provide superior service to clients. To me this means to listen carefully to their concerns and needs, to be responsive to their calls, questions and concerns, and to try to create and maintain that special relationship that makes us professional advisors. I hope you'll all join me in this commitment.

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Critical Client Documents - Drafting for Precision and Flexibility

Precision and flexibility may not be immediately apparent as common goals in legal documents. As my 25th year of estate planning and business law nears a close, I find myself reflecting on just those two thoughts. When writing documents for clients, my focus is more and more, drafting and planning for flexibility, and for precision in the meaning of words. Both are elusive!

Flexibility, is necessitated by the fact of change. I am consistently impressed by how much, and how rapidly change occurs. Laws change. Technology progresses, causing change we could never have anticipated. Client circumstances change (death, divorce, children maturing, employment). Views change for all of us as we experience life. As a practical matter, if 25 years of drafting has taught me anything, it is that there will be plenty of surprises -- things we did not anticipate. Nonetheless, I believe it is an important and primary goal to try to anticipate them.

Law students are drilled on using words precisely during their first year. It is a "sense" that over time, given all the other exigencies of the business of law seems to become "dulled." In an age of ever-increasing written communication (who would ever have dreamed 15 years ago that we would be "texting" instant messages around the world as a primary means of communication?), precision in written communication is arguably ever more important. Paradoxically, it is becoming less precise, between our always evolving slang terms and the abbreviations "texting" hath wrought.

I mention this, not because it has great relevance to writing legal documents, but because it underscores the difficulty in communicating precise, consensual ideas in writing!

Surprisingly, it has taken me years to come to the awareness that you and I may say the same words and mean something altogether different.

We live in a culture where multiple marriages are common. Use of terms like "spouse," "children" and "heir" in estate planning documents may be more ambiguous at the time of application than we considered at the time of writing the document. Terms like "in writing," and "signature" have taken very different (and unanticipated) meanings in the age of electronic commerce and communication. And terms of art in an industry may well have different meanings in different contexts. Use of precision by including "definition" language will perhaps be more and more called for in the drafting of business and estate planning documents.

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