It wasn’t that long ago (at least for the two authors of this article) when clients communicated with their lawyers by telephone or in person. If a client wanted to meet with her attorney, she would pick up the phone and ask for a meeting. If the client didn’t reach you, she was often forwarded to a secretary or receptionist who would jot a note down on a small, pink piece of paper.
At some point, depending on the urgency of the matter and your opinion of the client, you would return the call — often leading to a game of “telephone tag.” Calls could be avoided or delayed through harmless artifices such as the 5:01 p.m. call-back or the “he’s in an important meeting” dodge. The practice of law was simpler, more ordered, back then.
When email first became common, it was typically limited to scheduling issues. Email, unlike the telephone, was a perfect way to determine when a large group of lawyers, clients and others was available to meet to discuss important strategic issues — whether by telephone or in person.
Nobody even considered conveying legal advice in an email; it just wasn’t done that way. Lawyers often have large and sometimes lavish offices. If clients don’t visit once in a while, no one is able to see what a great office you have and the expense is largely wasted.
Things obviously have changed, but the question is whether things have changed for the better. Now, advice is often conveyed by email. Gone is the day when time records could omit any reference to email communications. Now, many lawyers who track their time bill clients for things like “email correspondence re purchase and sale agreement,” “draft email memorandum re status conference,” and the like. On a particularly bad day, a time entry might read: “draft and review email re draft email re draft email … .” If a law firm doesn’t bill its clients for email, it might not get paid.
At the same time, clients now expect very quick answers to fairly complex questions. Rather than playing telephone tag for a week and eventually meeting to discuss a particular topic, a client can send a short email requesting legal advice and — depending on the circumstances — may expect a substantive response to that email within a very short period of time. In some cases, clients and their lawyers can go weeks without ever talking; everything is reduced to a series of emails.
This, of course, creates challenges for the modern lawyer. Gone are the days when you could dodge the client’s calls long enough to do thorough research on the legal query and then deliver that advice over the telephone as if it had always been at your fingertips. And every lawyer has a horror story regarding an offhand remark made in an email coming back to bite them later. That’s why it is wise to live by the following creed: Never write anything down in an email that you wouldn’t be comfortable seeing on the front page of The Seattle Times.
This increasing reliance on email also has led to the proliferation of mobile email devices such as Blackberries — and therein lies the answer to the question of whether things have changed for the better. These devices are, as the description confirms, mobile. They are not left at the office when you head for home. And they are not left at home when you leave for vacation. Instead, they follow you home, on vacation, to dinner with your significant other, to the restroom and even onto the nightstand next to your bed — never beyond reach. They don’t call them “Crackberries” for nothing.
It has been a while since I lived without email. When I leave the office on business or vacation, I often set the “out-of-office assistant” on my email application to send the following response to each email that I receive:
I am currently out of the office at oral argument/vacation/whatever, returning August 28, and have limited access to email. Please contact my assistant, John Doe (Ext. 6121), if you need to reach me immediately. Thank you.
There will of course come a day when I don’t have email. When that day comes, I envision a much different out-of-office reply:
I recently passed away, never to return, and have absolutely no access to email (or at least that’s my expectation). Please contact a psychic (1-800-PSYCHIC) or other appropriate medium if you need to reach me immediately. Thank you.
Until then, I fear I will always be saddled with some sort of mobile email device; it’s only a matter of time before someone figures out how to implant them in your brain.
That said, it is important to limit your use of and reliance on email. For that purpose, I offer the following 10 ways to know that you are using email way too much and five ways to appropriately limit your use of email.
You know you’re using email (or email’s evil younger cousin, instant messaging) too much when:
- You tell your kids it’s dinner time by sending them a text message;
- You send your significant other an anniversary card by email;
- You forget how to spell “at,” preferring “@” instead;
- You have multiple email accounts and spend time thinking up creative “handles” like litigationgod@hot mail.com or 2hot4mybriefs@yahoo.com;
- You think less of people who misspell words in their emails or who reply to all when a single reply would have done;
- The following phrase makes sense to you: “TMI TTLY! LOL! G2G, BRB, TTYL :-)”;
- You turn your email device to vibrate instead of turning it off when you head for the birthing suite;
- You resist adventure travel because there’s no cell signal in the Amazon rainforest or Antarctica;
- You check email before you brush your teeth in the morning; or
- You still think a postage stamp costs 24 cents.
To appropriately limit your use of email, try the following:
- Make a point of calling your clients at least once a week, if for no other reason than to say “hi” — many of them are wonderful people and the others still help pay your rent or mortgage;
- Meet every client in person, at least once — it’s the least you can do as their attorney, and you can’t possibly know how a jury will react to your clients’ testimony if you’ve never met them;
- If a client wants or needs serious legal advice, try something polite like “this is an important topic, well beyond the scope of an email, let’s talk about it in person” — which also gives you time to figure out what you’re going to say;
- Always seek appropriate work-life balance — if your child wants a hug and your email device vibrates at the same time, hug first and check email afterwards (secretly if possible); and
- Once each day, for at least an hour, turn your email device off completely — if you have a panic attack, it’s time for a sabbatical and immediate psychological counseling.
Hopefully, with proper attention and diligence, you can avoid the many potential consequences of email, such as carpal tunnel syndrome, divorce and loneliness.
Leonard Feldman is a shareholder in the Seattle office of Heller Ehrman LLP and heads up its Appeals and Strategy Group in the firm’s Northwest offices. His practice focuses on appellate practice, commercial litigation and pro bono service. Daniel Zariski is an attorney with the Law Office of John W. Wolfe, P.S. in Seattle. His practice focuses on white-collar and general criminal defense, commercial litigation and policyholder-side insurance counseling and litigation. For ease of reference, they have written this article in the first person, singular. The opinions expressed do not necessarily reflect the views of the authors or their employers.
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