Terra Extraneus

Investment News posted a story by the Associated Press reporting a trend in which the investor retreats from RIAs and traditional brokers, and then goes to an online source to learn about money managers. Next, the investor can select one or a group of professional money managers to track. Finally, the investor opens an account and in the account the same trades made by the manager are made in the investor’s account. The fees for this service are about the same as the fees for mutual funds.

While this type of program might be better than no advice at all, and it might be better than searching Schwab’s or Fidelity’s website for user friendly advice, it is hard to see how it would compare favorably to the services of RIAs, brokers or CPAs. Admittedly, finding a qualified RIA, broker or CPA is not an easy chore.

Sitting in a room with a human the demeanor of whom you can evaluate along with an evaluation of their advice is something you cannot do with a website. As wonderful as the web is, it is artificial and regardless of the simulation, it is not yet intelligent. Risk assessment, the core value of financial advice, is sometimes as much a product of experience as it is knowledge.

The essential flaw in the advice of many RIAs, brokers and market predicting CPAs is usually inadequate risk analysis. The opportunity to remotely track money managers and copy their trades does not actually address this deficit, but merely wishes it away. It also assumes that the internet window is sufficiently transparent to permit assessment of character and philosophy without interpersonal contact.

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Carmelo Anthony, an NBA star with an $80 million dollar five year deal, according to the regular news media, found himself in the unenviable position of suing his financial manager, Larry Harmon. The news media reporting of the basic facts of the case has been garbled.

But, somehow the case got into federal court in California. The federal court dismissed the case with leave to amend the Complaint, a “do over,” in technical terms. The seven page opinion was like a walk down memory lane for me. For Mr. Anthony, it was no doubt bewildering.

When I started practicing law, we were still filing and arguing demurrers to petitions. Demurrers to petitions were pleadings that argued that the petition did not state a cause of action either because it failed to plead sufficient facts or because it failed to plead facts that under applicable law constituted an actionable wrong. Demurrers to petitions were abolished when notice pleadings was adopted. So, too, were gone the weekly trips to the courthouse to argue demurrers to petitions.

But, Mr. Anthony has managed to make a seven page opinion in effect granting a demurrer to a petition (the federal court term is “complaint” but they are essentially the same in modern practice) a national headline. Will judges all over America go to work microscopically analyzing complaints (or petitions removed from state court)?

It will occur only if the judges were not around during the demurrer era. Some judges liked the tedium and the gatekeeper role, but most found that it detracted from their real work, deciding cases, and buried them in poorly developed or untested facts and legal theories. Also, some wrongs cannot be articulated with the precision required in court until after considerable discovery. Wrongdoers and confusion usually are bedfellows, even if inadvertently so. Judges are usually keenly aware of this.

For non-lawyers and non-judges, if the goal is to “clean up” the courthouse and deter frivolous lawsuits, raising the filing fees will do more. The real problem, if there is one, is that as a society we spend less than 1% of governmental revenues on the court system, a historical fact that has not changed in a life time. With better funded courts and more judges, especially on the state trial level, judges would have no trouble managing the system.

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