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October 2015

September 2015

Lawyers' Big Legal Future Imperfection: Our Penchant for Perfectionism

ThinkstockPhotos-153742489The need to get everything exactly right has long been identified as a threat to lawyers' mental health, but I haven't seen a better, more succinct explanation of why the legal profession's penchant for perfectionism also stands in the way of advancing toward the best legal future than this post from last week at 3 Geeks and a Law Blog, which explains:

The kind of people who proclaim that mistakes are unacceptable even when they recognize mistakes are unavoidable do not really believe they are perfect. Rather, they believe that people like them are not supposed to admit imperfection. This remains one of the biggest impediments to change in our industry. As I try to convince law firms and law departments to engage in structured dialogue, I constantly run into people on both sides of the relationship who are threatened by the idea of an open discussion about doing better. If I concede that we might do better then I am confessing that I've been wrongWe have to get beyond the idea that improvement is an indictment of the past. Our job is not to be perfect. Our job is to do the best we can until we can do better, and then do better.

I think the trick to both better emotional stability and positive change in the profession is sorting out what we can and must get right (the equivalent of the airplane or operating room checklist stuff) -- the deadlines and key contract details, for example -- and what we can experiment with -- a different way of reaching a goal, completing a task, or organizing a project, for example. Knee-jerk perfectionism is a huge energy waster and may be just as much an obstacle to progress as sloppiness and inattention. For tips on how to manage perfectionism, see Tips for Lawyers to Exorcise the Perfectionism Demon.

Are You the Dad In This New York Times Piece?


ThinkstockPhotos-472991366Technology and multi-tasking have become tools in the work-life balance struggle. They let lawyers be on call to respond to client needs and also be "present" for family dinners, and kids' games, concerts, and dance performances. But Sunday's NYT op-ed Stop Googling. Let's Talk warns there are big risks with this strategy.  It makes the case that smartphones, googling, and texting have disrupted our face-to-face conversational interaction and are undermining our empathy. "Our phones are not accessories, but psychologically potent devices that change not just what we do but who we are," writes Sherry Turkle, an MIT professor and author of the book Reclaiming Conversation: The Power of Talk in a Digital Age

To this reader the most poignant sentences in the piece are these:

One 15-year-old I interviewed at a summer camp talked about her reaction when she went out to dinner with her father and he took out his phone to add “facts” to their conversation. “Daddy,” she said, “stop Googling. I want to talk to you.”

Certainly parents from all walks of life engage in this behavior but my bet is that this parent is a lawyer. We are fact-addicted by training and increasingly dependent on technology to martial the information we need to do our jobs. I confess that I often check my smartphone to find or verify information during conversations with my lawyer-husband or lawyer-son. And my lawyer-son does the same. The information accessed sometimes enhances the conversation. But sometimes checking on a fact becomes a trip down a rabbit hole that takes me away from interaction with the people I love. It's a habit I will now try to actively monitor.  I don't want my grandson ever to have to say, "Grandma, stop Googling. I want to talk to you." 

The smartphone habit is tough to break. The siren song of cyber-connection over solitude, self-reflection, and quiet conversation is constant and compelling. But Stop Googling. Let's Talk offers hope. Turkle points to studies that show we can rebuild capacity for conversation and empathy by creating boundaries on our multi-tasking (and technology can even help us do that). But first we have to acknowledge the need. Are you listening?

New White House Memo Gets Specific On Access to Justice

ThinkstockPhotos-452018103A newly-issued Presidential Memorandum on access to justice and the Legal Aid Interagency Roundtable hits the high notes in the playbook of legal futurists -- coordination across traditional boundaries, user-friendly technology, sustainability, and data-driven decision-making. No wonder Richard Zorza, a thought-leader on Access to Justice issues, says the memorandum is a "big deal."  Full memorandum below the line.


Continue reading "New White House Memo Gets Specific On Access to Justice" »

Does It Matter to UK Lawyers Whether Britain Leaves the European Union?

ThinkstockPhotos-482480268A referendum on whether the United Kingdom should leave the European Union could happen as soon as next spring. Should UK lawyers care?  According to an analysis by Oxford Economics commissioned by the Law Society, the answer is yes. The UK is Europe's leading legal services provider but that an EU exit would threaten that status, the study suggests. The study concludes that legal services providers would be disadvantaged disproportionately compared with the UK economy as a whole due to their reliance on intermediate demand from other sectors likely to be adversely affected, particularly financial and other professional services, and from resulting lower levels of business investment. 

Another reminder that law is an industry as well as a profession, that the market for legal services increasingly is global, and that barriers matter.

Today's Best Read on Diversity in the Legal Profession: How Long Should We Wait?


In 2010, the body responsible for regulating UK lawyers, the Legal Services Board commissioned a qualitative study of barriers to women and black and ethnic minorities in the profession. At the moment, there's a hot discussion going on about the report, prompted by an interview of a justice of the English Supreme Court, Lord Sumption (real name), who is a self-reported advocate for gender equality. Among Lord Sumption's cautions as reported in "Rush for gender equality with top judges 'could have appalling consequences for justice'," is the following:

We have got to be very careful not to do things at a speed which will make male candidates feel that the cards are stacked against them. If we do that we will find that male candidates don’t apply in the right numbers. 85 per cent of newly appointed judges in France are women because the men stay away. 85 per cent women is just as bad as 85 per cent men.

In the UK, diversity statistics are published annually by the judiciary. Here are 2015's. Until reading Lord Sumption's comments I would have thought that the bad news is that racial, ethnic, and gender barriers to success in the legal profession appear to be universal and nobody's come up with a good answer yet. But Lord Sumption's remarks suggest that there are some effective steps available that could make a big difference right away, but that we shouldn't implement them too fast. It's okay, in fact, if it takes 50 more years to reach equality. As far as I can tell, that's a new perspective injected into the diversity conversation. No wonder it's generating so much commentary.

For a quick and punchy read on the subject, try Lawyer2B's "Diversity and the profession: a reply to Lord Sumption."

Video: A trailer for Silk, a BBC TV series with a female barrister protagonist. If you're a fan of English courtroom drama, don't wait to see it.

What the Pope Had to Say About the Best Legal Future

Okay, he didn't explicitly talk about how lawyers can meet the challenge of creating the best legal future when he addressed Congress, but here's what I heard that applies to the work at hand:

Our efforts must aim at restoring hope, righting wrongs, maintaining commitments, and thus promoting the well-being of individuals and of peoples. We must move forward together, as one, in a renewed spirit of fraternity and solidarity, cooperating generously for the common good.

Who Cares Who Goes To Law School And How They Get In?

ThinkstockPhotos-502868047If a lot of legal needs in the future are going to be met by sophisticated computer programsself-help, and specialized technicians, then who cares who goes to "law school"?  In the meantime, there's a whole lot of caring going on, as illustrated by this story in today's New York Times: "Is the Bar Too Low to Get Into Law School?"  

Do any of these viewpoints or concerns capture yours?:

If you care, read it. If you really care, pay attention to what the State Bar's 21st Century Practice Task Force is up to. What law students should be learning, how to test it for admission to the bar, and new ways to deliver legal services are on their menu.

TBT: Fraud is So Much More Efficient These Days

The Bogus Estate 162783_1786164851184_3075644_n


A new type of racket, in which attorneys play a key although completely innocent part, has recently been uncovered by several of my lawyer acquaintances. The plan involves plausible facts and is of such a nature that, even though suspicions may be aroused immediately, the same are likewise allayed because no particular harm can be foreseen. The cautious natures and capabilities of the attorneys involved indicate the scheme can be worked very easily upon any lawyer. It follows these general lines:

A young, well-dressed couple visit the attorney about 9:00 a.m. and request his assistance in probating the estate of the husband's deceased brother. According to the husband, his brother
died in Portland, Maine, leaving the 
bulk of his estate in that jurisdiction. 
That fact is verified by a purported true
 copy of excerpts of the documents filed
in the estate, among which is the inventory. This latter indicates a sizeable 
estate of six figures, including two 
apartment houses, high-value corporate
 stock, etc. The matter having arisen 
suddenly, the husband states that he
 must conclude pressing business matters which precludes any immediate lengthy consultation. Making an appointment for the following day, and leaving the documents for examination, the visitors depart. That afternoon a telephone call is received in the attorney's office, the caller inquiring about the estate. The secretary verifies the visit, but, naturally, indicates her inability to disclose the nature thereof. The caller implies he is making a loan on the basis of the inheritance. When informed of the call, the attorney notes the same for discussion with the new clients the next day.

On the following day, while waiting for the couple to arrive, the attorney examines the documents left with him and observes a few discrepancies. Becoming apprehensive because of the telephone call on the preceding day, and because of the failure of the new clients to return, the logically suspicious attorney decides to visit the address furnished by the couple, and is on his way. Upon arrival, he perceives a lot as vacant as the proverbial sophomore's head. At once he returns to his office and swings into action by calling the Probate Court at Portland, Maine. He is informed that many inquiries have been received in regard to the estate, that it is non-existent and that the whole matter is obviously a hoax. Naturally, the couple never returns. It is speculation, of course, since no known complaints were ever made, but, knowing the propensities of the ordinary layman and, especially since the visit with an attorney of excellent reputation in the community was verified, the general conclusion is that the loan was made. I wonder what the interest rate was! 

Photograph, 1951: Not the fraudulent couple, but my aunt, Janet Lewis Hoffmann, and her husband, Jack Hoffmann, in 1951. Both were well-known photographic models in that era. 

No Joke: Endemic Pessimism May Be Killing Us

GrinchAtticus Grinch (guessing that's a pseudonym) in "An Inside Look at the Depressed, Substance-Abusing World of Law," entertainingly catalogues the various miseries of modern legal practice and recounts the bad news about lawyers' mental health: depression rate 3.6 times higher than non-lawyers, the highest among all occupations; alcohol and drug use twice the national average; suicide rate six times greater than the national average. (Seems these are Canadian statistics, which somehow feels even more depressing.)

Creating the best legal future requires trying to figu re out what's going on and how to turn things around. There's evidence that the traditional law firm model and business practices may not be economically sustainable. Is it also not sustainable as a healthy way of life?

Grinch reminds us that law school is perhaps the only endeavor in life in which pessimism appears to provide a competitive advantage. If you're a glutton for bad news, see Pessimists Do Better in Law School. But Then What? and The Role of Optimism And Pessimism In Professional Success As A Lawyer. And if you would like assistance, the State Bar's Lawyers and Judges Assistance Program offers help.  

But back to Atticus. Amidst the depressing statistics about lawyer depression is a good joke about lawyer jokes: "Y'know what the problem with lawyer jokes is? Lawyers don't think they're funny, but no else thinks they're jokes." 

An optimist thinks we can figure out how to make that joke not funny in the future. Who's in?

Study of Unbundled Legal Services in UK Released

ThinkstockPhotos-488509432"Unbundling" legal services by separating various elements and reaching an agreement between a client and lawyer about what elements the lawyer will provide is not new -- some probate and business lawyers in particular have incorporated the concept into their services for decades -- but the practice has gained new attention as courts and lawyers begin to confront the rise of pro se litigants. Several work groups of the State Bar's 21st Century Practice Task Force are considering recommendations on unbundling, making this newly released report on unbundled legal services in the United Kingdom especially timely. Its key findings:

  1. Reduced cost and the opportunity to exercise greater control over the case were the primary reasons why those consumers interviewed chose to unbundle;
  2. There appears to be a process of self-selection with unbundling used by consumers who were reasonably confident and felt capable of taking on certain tasks alone;
  3. Unbundling tended to be identified as an option during the initial client interview rather than being actively marketed to consumers – this may limit the extent to which unbundling draws into the market those completely excluded due to cost;
  4. No regulatory barriers to unbundling were identified, but some concerns were raised around assessing consumers’ capability, giving advice based on limited information and ensuring there is clarity on agreements about the scope of work; and
  5. Members of the judiciary felt that if full representation could not be obtained then – as a starting point, some legal advice and assistance ought to be beneficial. They also echoed some potential difficulties with unbundling identified by providers and felt it important that advice and assistance is given by regulated advisers.

The point on ensuring clarity on agreements about the scope of work is attracting particular attention.