Document Automation Isn’t the Only Disruptive Legal Technology…And What That Means for Solos & Smalls
Thanks to technology, advance directives- legal documents that specify what actions should be taken if patients are no longer able to care for themselves – are readily available. Free advance directive forms abound online at sites like this, while those who don’t care to read through lengthy instructions can create an advanced directive at Legal Zoom for 39 bucks simply by checking through a couple of boxes. So isn’t the story of advanced directives Richard Susskind’s vision come to life: freely available, do-it-yourself legal documents that don’t require a lawyer.
Except for one thing. Turns out, that advanced directives prepared by rote, while entirely legal are also completely useless. And what’s more, it’s not ye olde legal guild criticizing advanced directives, but doctors who first-hand view of how advanced directives actually work – or don’t work – in practice.
In a moving Huff Po piece, Dr. Angelo Volandes describes why most advanced directives fall short:
In my 15 years of medical practice, these documents rarely — if ever — preserved the patient’s voice when it was most needed. I care for seriously-ill patients in a hospital setting when they are most sick and often unable to speak for themselves. I also have usually never met the patient prior to meeting them in the hospital. In the rare event that the patient has actually completed an advance directive describing their wishes and I have access to these forms, the legalistic language makes them difficult to integrate into clinical care and often don’t help clarify patients’ values.
Worse yet are forms in which patients designate a person — usually a child — to speak on their behalf when they are no longer able to. Most of the time, patients have named someone with whom they have not discussed their health care wishes. I often find myself talking about decisions with a son or daughter who never had a conversation with their parents about what they wanted. Thus, children are left with the burden of guessing what mom would have wanted.
In short, while lawyers like Susskind may celebrate how technology has made advanced directives accessible, doctors like Volandes aren’t celebrating because we’ve solved the wrong problem! For Volandes, the solution to today’s broken advanced directive system relies on technology – but a different kind. He asks:
In an age of ubiquitous video technology, why are we still relying on paper forms? Video advance directives hold the promise of honoring and preserving patients’ wishes.
Imagine a patient who answers the following four standard questions: What kinds of things are important to you in your life? If you were not able to do the activities you enjoy, are there any medical treatments that would be too much? What fears do you have about getting sick or medical care? Do you have any beliefs that guide you when you make medical decisions?
Instead of checking off a series of boxes on a paper form that is completed in the doctor’s office [or online at a website], the patient is recorded on video answering these questions with a clinician sitting by their side and, ideally, with their loved ones present. A cell phone, tablet, or computer camera is perfectly adequate for such recording.
Beyond the words, video would allow people to hear a patient’s emotional inflections and see their facial expressions. This nonverbal information can help both the health care team and families finally understand the patient’s desires.
Could video advance directives disrupt the abhorrent state of care we find ourselves in where the medical care received at the end of life is not aligned with patients’ values?
There’s a role for lawyers in all of this as well. As part of estate planning, lawyers could also help clients prepare advanced video directives. They could team up with doctors and offer guidance on preparing legally compliant advanced video directives in a medical setting. Lawyers may need to seek legislative reform or create new precedent to ensure that videotaped advanced directives are legally enforceable. They could even hack an app that facilitates video preparation of a legally compliant advanced directive. Imagine – using technology to solve a real problem instead of addressing perceived needs that don’t really exist. Now, that’s what I’d call disruptive.
Lawyers have long propounded that reduction to writing is the best means to express intent, since the written form, when done correctly, is the least susceptible to unintended ambiguity. The fact that automation tools for writing do a lousy job at it does not mean that writing is a fundamentally flawed tool. And I would be just as, if not more, concerned about these video testimonies being misconstrued by a third-party, as spoken testimony is just as subject to ambiguity as is poor writing. (That’s why we allow cross examination in court.) I’d still rather see a real lawyer doing actual work to understand a person’s intentions and wishes, honing the written product through an iterative process, and in turn creating non-ambiguous prose that can be considered by the client, with adequate time where possible, before finally being subscribed by the client. One might consider exceptions where the client is already near incapacity, but that should hopefully become rare.
Ok. But can your ideal process happen cheaply? Can a client sit down with a lawyer for this iterative drafting process that results in unambiguous lawyer prose for $39? If not, you’re assuming away the problem.
I’m really not assuming away the problem. I’m primarily pointing out that the proffered solution of pure automation is flawed.