when we click on an email to read it,
akin to discovering a berry growing on
the ground 100,000 years ago. However,
the disruptive effect of the "fire hose" of
incoming electronic mail messages upon
litigation management and quality work
flow cannot be understated. Every email
must be assessed for what response is
appropriate, which takes precious time,
and it rapidly burns away the glucose
stored in the executive functioning
region of the brain.
The email "conversation" also defies
the second principle: legal "re-writing"
(letting a written position sit for later
review with a fresh mind) cannot easily
happen in real-time email discussions.
The modern electronic platform has
caused attorneys and litigation managers
to undertake, at considerable time and
expense, activities that historically
were performed by others. I am a bit
surprised my firm's litigation software
will not make coffee for me. A computer
"dashboard" lets (and encourages)
attorneys to manage documentation that
historically their (non-timekeeping)
support staff could manage instead. I
suspect I am in the minority now, in
that I do not print documents myself, or
save many documents into our computer
system. I am supported by capable staff
for those tasks. I know young lawyers,
however, who groomed by their law
school experience and modern litigation
software options will draft entire
by anyone. While certain hands-on
drafting is desirable, cost-effective
and produces the best product, it also
can have an undesirable cumulative
effect by diverting the attorney for
hundreds of hours a year from his/
her highest and best use: analyzing the
evidence, the law and issues, planning
the defense, and executing that plan.
Practitioners and clients may stay "busy"
all day in part from literally hundreds of
email interactions but not as effectively
advance "the mission."
In defending a case, there is no more
valuable act of the attorney and/or the
client than spending uninterrupted time
to focus on, contemplate and analyze the
preferred course of action. It may take
several "sessions" of thought to reach
the correct result. One cannot go through
that deliberative process in his office if
he is interrupted repeatedly by checking
the email inbox. Ironically, for me, some
of my best legal analysis happens away
from the office, free from interruptions
from my computer and telephone. (I once
realized how to win a case while I was
sitting in a barber shop reading Field &
Stream magazine.)
Incorporating that valuable analysis
and plan into a letter and report to
a client (i.e., assuming the case and
risk exposure warrants it) is also
beneficial in that (a) I will not forget all
that good information later and (b) it
improves clarity of communication to
my client. The optimal format includes
relevant facts, law, jurisdictional and
venue considerations (often the most
critical), a recommendation on short and
longer term defense activity, a decision-
tree style of analysis of potential
outcomes from a litigated result and/or
a resolution, and a budget. I think it is
especially useful for the client to reflect
awhile on my analysis and proposed
plan, and in discussing it later, to probe
for weaknesses or problems with my
assumptions and recommendations.
Such collaboration produces a refined
assessment and plan that has the best
chance of accomplishing the mission.
Ironically, almost none of that valuable
process requires much email or "clicking
and dragging."
To my colleagues in the defense bar,
and for clients involved in managing
litigation, I'd encourage you to reflect a
bit: has the electronic work environment
and its incessant time demands usurped
substantial time you need to spend on
quality, uninterrupted analysis and
case planning? Are you willing to shift
your priorities and activities to "get off
the gerbil wheel" and spend time on
priorities and have better of control of
the trajectory of and outcome of your
cases? Under the system you currently
follow, if you do not make some changes,
is your practice model sustainable in the
long run? Lastly, and I offer this tongue-
in-cheek, would you want your physician
to be checking his email while seeing
you for your serious medical issue, and
how is your professional obligation role
and duty any less important?
I am a fan of and rely upon
technology. I do not miss the days of
pulling volumes of the Federal Reporter
to manually make copies of decisions for
use in court. Technology places the world
at our fingertips and has enabled better
communication with clients and others.
When used correctly, it produces a better
product and service, and outcome, at a
lower cost. However, the technology and
associated processes, like anything else,
have to be managed to ensure we run it,
and it does not run us, so that we can
complete our mission.