Oct
25

Chatter, Chatter. What's The Matter?

Is the Internet killing meaningful communication?

Today's New York Times book review contains an essay written by Ben Yagoda on John Freeman's The Tyranny of E-Mail: The Four-Thousand-Year Journey to Your Inbox. One line from the review leaped out at me: Email "is an instantaneous, demanding, borderline addictive medium that has insinuated its way into hitherto private spaces." What is the consequence of insta-speak?

A good argument can be made that it dumbs down a culture. When the barrier between thought and expression is reduced to an instant, thought vanishes. Speech becomes mere verbal ejaculation. Mike at Crime and Federalism published a link this morning to a blog I had never heard of before, the Last Psychiatrist. The writer suggests that Internet does far more harm than good. With the world at our fingertips, there seems to be little value to sustained and critical reflection. Do regular users of the Internet lose the capacity to read meaningfully and well? Check it out: http://www.crimeandfederalism.com/2009/10/the-last-psychiatrist.html

I suspect that is the case. And the consequences aren't confined to reading and thinking. I believe that the Internet is changing the character of lawyering as well.

The Rules of Professional Conduct governing lawyers are undergoing a transformation in many jurisdictions. Just what constitutes reasonable communication between lawyer and client? The old paternalistic model of practice, which regarded the lawyer as captain of the ship capable of making autonomous judgments about how to advance a client's interests, is being replaced by an informed consent model, which imposes on the lawyer an obligation to consult on matters well beyond the objectives of the litigation. Just how does one draw that line?

Grafting medicine's informed consent requirement onto the law makes little sense. While a patient visiting a physician should be made aware of the risks of physical harm incident to a medical procedure, that is not analogous to a lawyer's decision about how to respond to a motion or otherwise advance litigation. The two simply aren't equivalent.

In a significant number of cases, enhanced communications requirements press lawyers into roles for which they are not suited: counselors required to validate the feelings of clients. Over at Simple Justice yesterday, Scott posted a piece called "The Troll Tax" and associated comments on the piece. One comment was particularly insightful. After writing that he did not feel obliged to post every response to a piece he had written, a writer wrote privately to express disappointment. Failing to post each piece might deprive a writer of the therapeutic effect of validation. Didn't Scott see that? Check out: http://blog.simplejustice.us/2009/10/24/the-troll-tax.aspx

Of course he did. But he noted that validation of everyone's feelings isn't his role. That, I presume, is the role of loved ones, or, in hard cases, of mental health professionals. If we all dropped everything each and every time someone's feelings needed validating, the world would grind to a halt.

And so does the practice of law grind to a halt in many an office encumbered by both the perceived need to validate the anger, fear and frustration client's in litigation experience and the expectation that this need be met instantaneously. How many of you have received an email in the morning raising a concern only marginally related to the case you are working on, with a follow-up hours later on why the first e-mail wasn't answered? I simply do not know how to cope with the avalanche of human need that inundates my firm, so I have paralegals, associates, clerks to help shoulder the load. Yet even with this assistance, there are some folks whose needs seem never satisfied.

I envy lawyers in a bygone era, when communication was by post and writers were required to take the time and care to put their thoughts in writing, and then to make a decision about the marginal utility of posting the communication, presumably by incurring the cost of postage and the effort to deliver the letter to a receptacle. The effort to think, to mobilize the resources required to send a post, must have screened many a communication. Today, it is far to easy to pick up the phone or press a send button. And lawyers who spend their days in court practice at their peril when they cannot respond instantaneously to the ever-present need for validation.

This is a problem rarely acknowledged in the legal profession, but it affects all lawyers. Just last week, I was speaking to two prosecutors about a criminal case. They expressed exasperation about the rage, anger and ever-present need of victims who were trying to transform the criminal justice system into a tool of private vengeance. The prosecutors bemoaned the impact of new victim's rights laws that required them to consult victims before exercising their judgment. These prosecutors were raising the same complaints I hear from members of the private bar: There simply isn't time to walk or training to walk clients through the valley of the shadow of anger.

I no longer check the inbox of my computer each day. There simply isn't time. And days go by when I am unable to retrieve phone messages. I suppose operating in such a manner puts me at risk, but better that risk than the loss of the ability to do what I am retained to do: think.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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