Detecting Snake Oil

My mother was a fastidious housekeeper so my father and brother – and the dog– spent a lot of their time in the basement. Dad did the paternal side of housekeeping, mending ripped lawn chairs, jerry rigging broken lamps, refinishing antiques. Brother Bob listened to the A.M. radio on the big walnut console that Dad had refinished. And for a while in his short life, he ran a business.

There was a section of their man-cave surrounded by metal shelves where Bob organized his inventory of Amway products. He spoke frequently to his upline sponsors, a cheerful extroverted couple so unlike our small subdued family. He had one “downline,” a college friend who was thinking seriously about the seminary. He read motivational literature, listened to cassette tapes, and frequently dusted his inventory of boxes and bottles, adding more as Amway developed new products.

Back in the 1970s, I thought the Amway marketing scheme was predatory. Its appeal to ordinary people seemed to suggest that their family, friends, fellow congregants, and people-one-may-happen-to-meet would all fall into line to sell necessary everyday household products. Before long, an interconnected network of grateful uplines and eager downlines would surround the disconnected, depressed and lonely person living in his parents’ basement. Thankfully, I never shared my opinion with Bob. I had left for college while Bob was in high school, and the family was spared the talent for ranting that college quickly developed in me.

Decades after Bob’s death at the age of 29, we were still using the Amway polishes and potions from his shelves. I have yet to use up the silver cleaner, since I don’t often break out my inherited sterling cutlery. Over time, as I have dipped into his inventory, I have felt my cynical heart soften. The business myth Bob had bought heart and soul was an optimistic leap of faith, and faith is good. Bob truly felt he was participating in the American Dream. Amway had a business plan that could not fail if he stuck at it, because he believed that his faith was shared by a multitude of others.

Successful salesmen understand consumer vulnerabilities.  When the products we sell are legitimate and reasonably priced, our effectiveness comes from knowing all the “apps,” (the applications) for our products—how they do what our customers want and need to get done. I include myself among the sales force of the world in homage to my brother and his Amway tapes.

What I have sold throughout my legal career are answers to life’s persistent questions. Legal documents are like Amway cleaning products: they are not at all effective on the shelf. They require wise use. A will can only transfer title to assets that were the result of earning, saving, investing, and wise spending. I did not sell any apps for building an estate. I did not sell apps for managing a business. As a lawyer, my apps were about avoiding liability.

But lately “avoiding liability” has begun to smell to me like the snake oil that so many of the Amway imitators were marketing. What lawyers are usually selling when we tap into folks’ fear of being sued is not an avoidance of a lawsuit but a way to mount a legal defense. A defense on behalf of your will, trust or limited liability company that may require the lawyer to show up in court for two or three years.

What ordinary people need are the kind of asset protections that make it so very hard to mount a lawsuit against a big corporation and nearly impossible to sue the government. Governments get by because they have passed laws that make them immune from lawsuits. Corporations get by because their behavior does not stem from the same place that real people think and act. (No one on Wall St. could be found who intentionally, or even negligently, decided to wreck our economy in 2008.)

I will leave it to the politicians to figure out how to redefine the criminal codes so that big money cannot duck responsibility for its excesses. For my part, I am setting out to sell small shell companies to ordinary people and encourage them to protect their assets the way that big companies do. Next time, I’ll talk about how New Mexico LLCs can clothe personal assets in the cloak of armor that corporations enjoy. I promise you it is a legitimate product.



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