Learning Issue Spotting
In law school we spend a lot of time reading fact patterns to identify the legal issues involved. In torts class (where we study civil legal causes of action such as negligence, assault, and defective products) we might read about someone who gets a flat tire on their way to work. It is the same flat tire that was just fixed by the local mechanic. During their lunch break they call and yell at the local mechanic and threaten to beat them up if they do not fix the tire again – right this time! After the call, they buy gluten free soup only to find out later that it contained gluten. This made them very upset. Then they tell their co-workers how bad the mechanic is, and go a step further and place their opinion on a giant billboard and in all the local newspapers…and so on.
That was a pretty horrible example, but we would read a fact pattern along these lines (people have really tough days in law school fact patterns) and be tasked to identify where there could be a “legal cause of action” – in other words, where is there a potential lawsuit, also called issue spotting.
To truly determine where there would actually be potential to sue, we would need a lot more information than this fact pattern involves. We would ask questions and gather data to determine if the legal requirements are met. We must know the legal causes of action to know what questions to ask.
In other words, we need both information (the facts) AND the legal understanding. Only by knowing that negligence requires that there be a duty to act in a certain way towards another, then that the duty is breached, and that there are damages caused by the breach, could an attorney know the right questions to ask and the right information to gather. The person in the fact pattern above might be upset about soup with gluten, but if it doesn’t cause measurable harm then there is no basis to sue.
How it applies to my estate planning process
As an estate planning attorney, I do this same work of issue spotting. I bring my legal knowledge to the table as I meet with clients initially, but then need to spend time learning from them, using that legal knowledge to guide my questions.
Before we can work together, potential clients are asked to fill out extensive information about their interests, values, assets, and family. (And rarely would I meet with someone who didn’t do this carefully). Then, we meet and I find out even more information about you and your family dynamics. Only with ALL of this information am I prepared to explain what would happen upon your death if you do no [additional] planning.
Once you understand what would likely happen, then you can share what, if anything, you don’t like – and from there I can explain options to control the circumstances in the event of your death. Additionally, because I have background information and am starting to know and understand you better, I can explain other options that might be of interest to you without overwhelming you with the endless possibilities that are irrelevant to you.
What’s this about a $50 will?
I was recently asked by an employer organization (they provide legal benefits to the employees of different companies) to do a ‘Simple Will’ for one of their members for $50. There was some provision that if I looked at his ‘questionnaire’ that they provided him, I could decide that a ‘Simple Will’ was not appropriate and work with him at a discount off of my normal rate.
I asked what a ‘Simple Will’ was and informed them that I could not imagine doing a will for $50 – for anyone, but they had already told me that this individual owned multiple properties and had enough resources to make the legal process of probate complicated upon his death.
They never got back to me, but this has gotten me thinking about what they possibly could have wanted me to do. My guess is that they sent him a form asking what he wanted, presumably who he wanted to give assets to and whom he wanted as personal representative/executor, and they must have expected me to create a simple fill-in-the-blanks will for him, probably without EVER even speaking to him. In fact, for $50, I suspect that any attorney willing to do it isn’t even looking at the questionnaire, but rather asking staff to create the document.
To do this, in my mind, would amount to malpractice.
Let me just be clear for a moment that I do provide Pro Bono legal services, in other words, free legal services for those who cannot afford my fees. I treat these cases the same I would a paying client, spending time to get to know them and their circumstances so that they have a plan that will work for them.
But that was not the request.
Why would I be unwilling to take his word for what he wanted based on a questionnaire? Because I have no information that he understands the consequences of what would happen upon his death based on what he wrote on the questionnaire. I do not know what is important to him. I do not know that he has considered various options and determined this meets his needs. I do not know if he has planned for a period of incapacity. I would not have enough information to do my job correctly.
It may be that he has researched this information extensively and knows exactly what he wants and wishes to take advantage of this workplace program to complete his will rather than using drafting software for a few hundred dollars online. But this is unlikely, and I am unwilling to take the risk.
Do you want to learn more, to schedule a meeting, and even to learn how you can get this initial planning meeting for free? Schedule a time for Liz to call you here, email Liz@lizsmithlaw.com, or call us at 907-312-5436.