When I was trying to figure out what kind of equipment we needed to start podcasting, I was frustrated by the lack of a good just-get-this-stuff list so I didn’t have to research what to get, buy it, realize it’s the wrong thing, then buy something else. Fortunately that only happened a couple of times. To save you the same frustrating experience, here is my just-get-this-stuff list, which is also what we are using right now to record the Lawyerist Podcast.Equipment
I think that’s everything, and if you get all this stuff, your podcasting setup will look pretty much like Aaron’s and mine.
Oral argument is one of the most exciting parts of litigation, and only a few lawyers are really good at it. But even if you aren’t a naturally-talented presenter, you can still improve. The important thing is to get away from your outline and use a more “modular” approach to oral argument.
Many lawyers — especially those new to law practice — prepare for oral argument the same way, by creating an outline and rehearsing as they would for a speech. They may prepare for questions by talking through the issues with a colleague, but this does not usually result in effective oral argument. What it does result in is a stiff argument, awkward recovery after answering questions, and an ineffective presentation overall.
That’s because oral argument is so much more dynamic than an outline — even if you have a “cold” bench. In order to prepare for dynamic argument, you need a more dynamic approach than an outline and a few run-throughs.
Preparing for oral argument takes a deep understanding of the law, the facts, and the arguments. Then, you need to break up your argument into “modules.” You can organize your argument (not just outline it) around your modules, but then you must practice making your argument in and out of order. Only by doing this will you be prepared to field questions and deliver your argument with skill and nimbleness, instead of rigid adherence to an outline.Ditch the Outline
An outline isn’t inherently good or bad, but it encourages rigid thinking. Lawyers who rely on an outline alone tend to get thrown off by questions, which often results in repetition and skipped issues.
Worse, many lawyers also haul a binder (or several) full of cases, pleadings, exhibits, and briefs to the podium, which they try to rely on while delivering their arguments. I think this is because they rely on their stacks of paper in place of adequate preparation.
Of course you can use an outline if you really want to — I do — but it is important to shed the rigid thinking and intellectual laziness that outline-as-preparation encourages.Practice Intense Preparation
There are no tricks to good oral argument, and the single most-important component of great oral argument is preparation. I realize it is one thing to say Prepare! and another to do it with a full caseload, but it is a lawyer’s duty to prepare adequately, if not better. You must find the time.
You must know four things about your case for every argument:
1The facts. Know the facts of your case backwards and forwards. Make sure you know which are actually in the record, too.
2The law. Although you probably researched the law at various points in the litigation, including when you wrote the brief, you should review at least the key cases before your argument, and learn them well enough to talk about the nuances without the case in front of you. The same goes for any statutes or rules involved, which you should know inside out.
You must also be able to state the rule you want the court to adopt and apply, whether it is a rule from existing law or a new one that you want the court to adopt. Enough judges have asked me about this that it has become one of my favorite questions to ask students when I judge moot court competitions — few are prepared with a rule. But if you want to win, you had better know how you want the court to do it.
3Your argument. Make sure you can explain why your client should win. This ought to go without saying, but I have seen an astonishing number of attorneys who cannot seem to articulate a coherent reason why their client ought to win.
Your job is to convince the court that your client ought to win, and give the court a legally-permissible route to that result. Don’t forget the second part. You cannot win without it.
4What you want. This should go without saying, too. You must be able to tell the court what you want it to do. By the way, as part of this, you should make sure the court can do what you want it to do. Your client won’t thank you for the time and expense of a motion hearing if the court doesn’t have the power to grant your motion.Organize and Practice Your Argument
Here’s how I like to organize my argument. I write each issue I want to discuss or point I want to make on a separate index card (or piece of paper, but the idea is to keep it short — these are prompts, not parts of a script). Then, I take each index card and practice the argument around that topic or idea. Usually, the oral argument starts to organize itself as I do this, because I generally refer to other cards as I go. As the argument begins to take shape, I start laying out the cards on the floor to sort them.
As I lay all the cards out on the floor (this works great for organizing the topics you want to discuss with a witness on direct examination, too), I put them in the order that makes the most sense. Group them into the two or three main topics you need to argue. Even if your argument is going to be complicated by necessity, group it into a few main topics, if you can.
Now, turn those main topics into a roadmap. Starting your argument with a concise roadmap is helpful for the court, because the judge will know right away if she is likely to get an answer to her questions, or if she should just go ahead and ask them now because you aren’t likely to cover them.
Spreading out index cards on the floor works for me, but you could also do an outline, if you prefer. I just think it works better to start with something more flexible, and convert it to an outline as it starts to come together.
Whether you do an outline or not, you should also practice your argument as a single, cohesive unit. You might get a cold bench, after all. I usually run through my argument this way a few times, then set my index cards and outline aside and go for a walk. (Bring your dog, if you are preparing at home.)
With no prompts in front of you, go through your argument several more times from memory. Work through it without resorting to your outline or notes. This will force you to learn your argument much more thoroughly than if you are always relying on your notes.
Practice your argument with non-lawyers, too. If they look bored, you aren’t doing a very good job. Keeping a non-lawyer interested forces you to boil down the facts, issues, and arguments to their essentials. You can always go into the nitty-gritty (boring) details if you need to, but it’s generally better to get to the point — especially with judges.Commit Your Argument to Memory
Outlines, binders full of reference material, and other paper and props are distractions, not performance aids. The best way to argue is from memory (although it won’t hurt to bring your index cards or outline with you, just in case — or just for show).
If you have followed my advice so far, you have essentially committed your argument to memory. Deep understanding of the facts and law will give you the ability to discuss the issues without an outline to guide you. Practicing your argument out of order helps dissociate each issue from your outline. Getting out of your office and walking as you practice will help you embed your argument in your brain. As you walk around, your brain will associate your argument with your surroundings, which will make it easier to remember your key points when you are under stress at the podium.
Your goal is not to remember your argument word-for-word; that is counterproductive. Your goal is to know what you want to say about a topic whether or not you are interrupted. If you are interrupted, you must be able to locate the question in your argument, then segue gracefully back into your argument after you answer. In other words, know what you want to say, and then cover at least the key points whether or not you are interrupted with questions.
If you have followed the steps above, you should have your argument sufficiently “memorized.”If You Can, Moot Your Argument
Not every argument merits the time and expense of a moot session — or several. But if you can moot the issue, you will get invaluable information and feedback. If your “judges” do a good job, you will have a good idea of what you may hear from the bench. You will also get great feedback on the way you argue so that you can improve.
I’ve had the opportunity to conduct several moot sessions on both sides of the “bench,” and it has been well worth the effort in each case. Do it if you can.Last-Minute Prep On the Day of Your Argument
Here is what works for me on the day of my argument, but what you do is not as important as having a routine that quiets your nerves and gives you one last refresher of the facts, law, and your argument.
I usually get dressed, then go walk the dog. (My hearings tend to be first thing in the morning.) While we walk, I run through my argument — out loud — two or three times (wear a Bluetooth headset if you don’t want to look crazy, and people will think you are just on the phone). I keep it up in the car on my way to court. I don’t have my index cards or outline out when I do this.
When I get to court (always at least fifteen minutes early), I sit down and jot down my main “talking points” on a legal pad, referring to my outline if I need to. When my case is called, that’s all I take to the podium. I don’t try to review cases or the facts at this point. If I don’t know them by the time I am sitting in the courtroom, I’m not going to learn anything in those few minutes before I stand up to argue.
Preparation is key. If you have done enough, you will be confident behind the podium, and you will rarely be surprised by what happens in the courtroom. Don’t half-ass your preparation; it is always better to be over-prepared.Updates
Featured image: “Speaker’s table in conference room” from Shutterstock.
Think you don’t have time to meditate? How about trying it for just .1 hour? Just don’t ask if you can bill your clients for it.
Meditation is one of the most powerful habits you can cultivate. It will help you manage your stress, reduce blood pressure, and help you respond appropriately to difficult situations
For lawyers, meditation can also help you keep a cool head in contentious situations. It will give you the ability to see your client’s case with a broader perspective instead of digging in your heels. You’ll learn more about your boundaries, and you’ll better manage your energy and time.
But meditation isn’t something you can do sporadically to reap the rewards. It requires persistent effort (just like going to the gym).
Here are ten steps for making meditation a daily habit.1. Write Down Your Intention
There’s no right or wrong reason for starting a meditation practice. The reason is unique to you. Here are few common reasons why lawyers start meditating.
I encourage you to write your intention down and put it in a prominent place in your home or office. Stating your intention makes it more likely you will stick with your goal to meditate daily. When you are tempted to skip a day because you don’t feel like meditating, you can remind yourself of your intention and push through.
Sharing your intention with others will also keep you motivated. Tell your spouse, significant other, friend, or family member that you are practicing meditation daily. Declaring your intention publicly makes it more likely you’ll follow through. Plus, your family and friends will understand when you need to disappear for a few minutes to meditate.2. Start With Two Minutes
You are a lot more likely to meditate every day if you set a goal that’s easily accomplished. The key is to set the bar low so you are less likely to fail. Starting at just two minutes a day is an easy goal to achieve. Research shows that if you meditate for just two minutes for twenty-one days, you can actually rewire your brain to work more optimistically and more successfully.
As you feel more comfortable with your practice, you can increase the duration.3. Get Your Gear
All you need to meditate is yourself. No props necessary. However, some basic items are nice to have.A Timer
There are numerous apps available for meditation. Some apps have meditations; others apps are simply a timer. If you can resist the distractions that are naturally present with the smartphone, by all means, use one of these apps:
However, if you can’t pick up your phone without getting lost in Facebook, Twitter, or your inbox, consider using a standalone timer. Your kitchen timer will also work just fine.Something to Sit On
If you are sitting on a chair, it’s best to find one where you can comfortably place both feet firmly on the ground. A chair without wheels work best. If you prefer, you can also try a meditation cushion or a bench. Note that the cushion or bench may be uncomfortable at first as your body builds the muscles necessary to hold your body upright.A Blanket or Shawl
If you tend to run cold, you may find it helpful to have a blanket or a shawl to place over your shoulders or your legs. This is particularly helpful for longer meditation because you may feel chilly from lack of body movement.4. Link Meditation to an Existing Habit
If you have a hard time remembering to meditate, try linking it to an existing habit. For example, meditate before (or after) brushing your teeth.
Once you’ve done this, you won’t have to think about meditating every morning. You will just get up, sit on your cushion, and meditate.
There are days where you’ll find yourself not wanting to meditate. On those days, either make a decision to skip a day or simply do a very short meditation (remember: just two minutes is enough). What you should avoid doing is having a lot of back-and-forth dialogue about whether you are going to meditate or not. Just get to it.
It’s similar to exercising. You either do or don’t. Don’t let yourself debate going to yoga for an hour then miss the class anyway as a result.5. Set a Specific Time and Place
Incorporating meditation into your daily habits is easier if you keep a regular schedule.
Find a time in your day where you can meditate undistracted for a specified amount of time. I like to go straight to my meditation cushion in the morning. If I don’t meditate first thing in the morning, the business of my day will usually make it impossible to meditate later.
However, you can try a few different times and locations to find something that works for you. Try meditating as soon as you get into your office, before you go to bed at night, or during your lunch break.6. Just Start Meditating
It is easy to over-complicate your mediation plan instead of simply doing it. You can spend the next year learning about the technical how-to on meditation, but that won’t be nearly as beneficial as just doing it. That’s like learning all the techniques and strategies behind running a marathon without actually lacing up your sneakers and going for a run.
For a basic practice, also try the following tactics:
Every morning, when I sit down to meditate, I approach it with curiosity and an open mind. Each day, I am slightly different and my meditation practice is all about becoming familiar with my inner state. It’s possible that I’ll have a whole week of “good” meditation where I’m able to focus my attention on my breath, have few thoughts, and feel more at ease at the end of the mediation. Then I’ll have weeks of practice where, each day, my mind feels like there is a tornado rolling through it. I feel antsy and full of emotions.
It takes practice to let go of the judgment — telling yourself you are “good” or “bad” at meditating. Instead of judging your meditation practice, see if you can approach it like a scientist would. The subject of your study is your own mind. So when you notice that every minute of your practice is full of anger, approach it with curiosity and seek to become more familiar with your mind instead of labeling it bad or saying you are failing at meditation. Observe the feelings that are persistent throughout your practice.8. Be Patient
I find that many lawyers have unrealistic expectations about how quickly meditation should start “working.” Consider that the habits of your mind (defaulting to negativity, constant worrying, catastrophizing, etc.) probably took many decades to form. These habits are strongly ingrained in you and they won’t change overnight. It’s also possible that some of these habits never truly disappear, but you will have to learn to work with them.
One of the reasons why I started meditating is because of constant anxiety, especially around certain social interactions like public speaking. Even after years of consistent practice, I still feel anxious before taking the stage. What has changed is how I interact with the nervousness. So when my mind goes into full panic mode and says “I’m going to forget everything I’m supposed to say,” I no longer identify with that thought. I can simply see it as a thought (not fact) and move on.9. Troubleshooting Common Issues
There are few very common issues that you may notice in your meditation practice. They include:
When it comes to meditation, the best approach is to always think of yourself as a beginner. Be open and curious to the experience. Meditation is the rare instance you are actively practicing doing nothing. Not striving for anything. Not working on being somewhere or achieving something.
Each day when you sit down to meditate, let go of trying to become an expert and don’t worry about correctly practicing meditation. The most important part of meditation is to simply practice every day. Even if you miss days, weeks, months, or even years, you can start over right now.
Featured image: “Business People Yoga Relaxation Wellbeing Concept ” from Shutterstock.
Unless you’re Chuck McGill or you solely serve neo-Luddite technophobes who curmudgeonly resist the coming Singularity, you need to make your website mobile-friendly.
Last month, Cisco released its global mobile data traffic forecast, which included the following projections:
Here’s an example of mobile website traffic growth to an actual law firm’s website:
If your website is slow or hard to use on mobile devices, potential clients are likely to leave — and they are unlikely to return. In fact, during a recent Google hangout, Google’s John Mueller noted:Mobile Website Examples
Let’s look at a few of the winners of this year’s best law-firm website contest. While I’ve posted some screenshots here, I encourage you to try accessing and using these sites on your mobile device to get a sense of what we are talking about.Bad
See how difficult the menus are to read? Try clicking on those menu items. You can also see that the site doesn’t fit on my iPhone’s screen.Better
From a mobile-friendly perspective, this example is a bit better. I can actually read the text on the page without needing to side-swipe or zoom. However, there’s still no easy way for me to contact the firm at the top of the page.Best
This site makes it very easy to contact the firm as well as navigate the site on my iPhone.
If the differences among these examples aren’t immediately apparent to you, go ahead and open these sites on your phone. Click around a bit. There should be no pinching or swiping just to find your way around the page.Mobile Websites & SEO
Starting April 21, we will be expanding our use of mobile-friendliness as a ranking signal. This change will affect mobile searches in all languages worldwide and will have a significant impact in our search results. Consequently, users will find it easier to get relevant, high quality search results that are optimized for their devices.
Put simply, Google will be taking into account whether your pages are mobile-friendly or not when it ranks your pages in search results. As a result of this announcement, you can expect a plethora of posts, articles, tweets, and warnings of the dire SEO consequences of failing to go mobile. While this update is unlikely to make your pages vanish from search engine results pages entirely, every optimization helps in a competitive landscape.
But ignoring for a moment the mobile-friendliness-as-a-ranking-signal announcement, it’s likely your mobile-unfriendly website has already been negatively impacting your visibility in search. Google takes user metrics into account in ranking pages, too, like how quickly people wind up in Google after visiting your site. When someone performs a search on a phone and lands on a page they cannot use, they head right back to Google to perform another search. This signals to Google that the page didn’t satisfy the user’s query, and Google doesn’t like that.
We track search engine results across a variety of legal search queries, locations, and devices. It’s quite common for us to find sites that aren’t mobile-friendly perform worse in search on mobile devices than they do on desktops. Here is an example of a site’s rankings for the same keyword, in the same location, comparing only devices:
The site is in the #3 position for people using a desktop, but it is only in the #12 position for the same keyword in the same location for people using a smartphone. This doesn’t have anything to do with Google’s latest changes; it has been the case for a long time.
In addition to adding mobile-friendliness to the their ranking soup, Google is also alerting users as to whether a site is mobile-friendly in their results:
This will probably train users to prefer mobile-friendly sites. The result: even more people are going to prefer mobile-friendly sites. They may not even visit non-mobile-friendly sites in the first place. If you’ve been paying attention, you just realized this is likely to improve the visibility of those sites in search results.How to be Mobile-Friendly
In truth, mere mobile-friendliness isn’t strong enough. You really ought to think mobile-first. Don’t make your visitors have to think about how to use your website. For now, I’m going to focus on the tactical things you can do to make your site mobile-friendly.
There are three major Google-approved methods for mobile-friendly sites.
According to John Mueller, Google doesn’t care which method you choose so long as its algorithm can tell it’s mobile-friendly. There are pros and cons to each method. I tend to prefer responsive web design to the others. However, there are circumstances where the other methods may make more sense. If you want to know all the details, get acquainted with Google’s Webmaster’s Mobile Guide.
It contains a lot of useful tips including:
If your site is built on WordPress, making your site mobile-friendly should be relatively easy. There are two primary ways to do this:
Most of the time, switching to a mobile-friendly WordPress theme is the most effective choice. Mobile-friendly themes usually provide a better mobile experience for users. Further, updating to a mobile-friendly theme is your best bet for avoiding mobile plugin weirdness (i.e. canonical issues, faulty redirects, etc). If you insist on the mobile plugin option, check out WPtouch.
If you are on a budget, though, head over to the WordPress Theme Directory and add the Responsive Layout Feature Filter. On my most recent search, there were over 900 responsive WordPress themes to choose from.
Hopefully, it’s obvious to you that people are using mobile devices to find information about you online. Further, what they see when they find you will play a role in their perception of you. Your website ought to be an asset, not a liability. If your website is slow, doesn’t work on mobile devices, and looks the same today as it did in 2000, it’s time to make a change.
Featured image: “Diverse People Digital Devices Wireless Communication Concept” from Shutterstock.
I can’t believe I have to explain this, but the other day I was talking to a lawyer who said her password is password and she doesn’t see why that is a big deal. It made me feel like we were talking a different language. I guess we were, in a way. What’s obvious to me is impenetrable geek speak to many.
Computer security is important for the same reason locking your car doors in a bad neighborhood at night is important. And it is extra important for lawyers, who are charged with keeping client information confidential.
A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.1
Using 12345 or password as your password isn’t even an effort, much less a reasonable one. It’s like leaving your office key in the lock so you don’t have to remember it.
But since basic computer security obviously isn’t common sense for everyone, let’s go over some of the reasons why you really need to make an effort.First, is Anyone Really Going to Try to Get Into Your Computer?
In a word, yes.
Not your computer specifically, of course. Online and offline, most computer intrusion is opportunistic. Online, malicious hackers are using scripts to scan every computer they can find connected to the Internet (if your computer is connected to the Internet, they can find it) for known vulnerabilities so they can take control. Similar exploits can be hidden in websites and email attachments. One lawyer lost $289,000 when he opened an attachment that allowed malicious hackers to take over his computer.
There are many other possible attack vectors, and they are just so easy to replicate. Anyone with an Internet connection and a little motivation can start breaking into computers. If you use the Internet, you are vulnerable.
Offline, just about everyone knows the data on your computer is probably worth more than the hardware. Why would someone just sell your laptop when they could use the information on it to clean out your bank accounts first? They will probably clean out your clients’ accounts while they are in there, and you will be lucky if that’s all they do with the data on your drive and in the cloud services your computer is pre-authorized to access.
Again, yes. People are actually, actively trying to get access to your computer. The fact that they aren’t targeting your computer specifically is all but irrelevant. It just means you’ve been lucky so far. It probably won’t hold out.
Your password isn’t the only thing that can stop them (their own incompetence is often pretty effective). In fact, it isn’t even enough on its own. But good passwords are the lynchpin when it comes to computer security.Second, What’s the Harm if Someone Does Get Into Your Computer?
The obvious harm is identity theft. Here is what the FTC has to say about that:
The most recent figures from the Bureau of Justice statistics indicate that 11.7 million people, representing 5 percent of all people in the U.S. age 16 and older, were victims of identity theft between 2006 and 2008. Identity theft can be perpetrated using such low-tech methods as purse snatching or “dumpster diving,” or high-tech techniques like deceptive “phishing” e-mails or malicious software known as “spyware.”
Those figures are from 2006–08, by the way. It seems pretty unlikely that identity theft has gotten less common in the last six years. Also, note that identity theft does not have to involve malicious hacking. That’s because all it takes to steal someone’s identity is a few personal identifiers. A lawyer’s lost laptop is a treasure trove for an identity thief.
How much is in your bank account right now? How much is in all of your clients’ bank accounts right now? How many photos do you have stored on your computer or in your online accounts? How many of your communications with friends and family are in your email account? How much confidential information about those clients do you have on your computer right now that could help someone gain access to their online accounts — including their bank accounts?
Here’s the bottom line: do you want to be held financially and ethically responsible if someone gets into your computer and steals information about you and your clients? How likely are you to prevail in a lawsuit or ethics action against you if your password is asdfghjkl?2
No? Put in a little effort and use good passwords.Use Good Passwords
Use long, unique, passwords that are not found in a dictionary. 12 characters should be long enough. Avoid using the same password across multiple critical services (your email and your bank account, for example). Someone who can access one website (or your computer) can access all the sites on which you used the same password. Finally, don’t use real words. A “dictionary attack” is just what it sounds like, plus a list of common variants (like @ instead of a) and well-known passwords (like 12345, password, and asdfghjkl). It’s simple but effective.
Keep your passwords in a safe place, like a paper notebook or a password safe. That will also make it easier to keep unique passwords, since it can be hard to remember all of them.Use Two-Factor Authentication
Two-factor (sometimes called “two-step” or “multi-factor”) authentication is an easy way to drastically increase the security of your online accounts. Two-factor authentication means using something you know (your password) and something you have (usually your phone) to log into your account. When you log in, you will have to type in your password plus a code that is generated by an app or sent to you by text or email.
Because your account requires two “factors” to log in, a malicious hacker needs more than just your password. So even if your password is stolen somehow, your account should be safe.
Two-factor authentication is becoming available on an increasing number of services. At a minimum you should turn on two-factor authentication on your most critical accounts, like your email and your cloud file storage. To turn it on, just look for your security settings and follow the directions.Encrypt Your Files
Finally, passwords are only part of the security puzzle. Take the time to encrypt your files.
I know it sounds hard and complicated, but it isn’t. It takes just a few clicks. The effort required to encrypt your files barely registers. Call it 4 calories. Maybe.
Once you have encrypted your files, you can go on using your computer exactly as you do right now, except that you will have to log onto your computer with a password (although you should be doing that right now, anyway). I mean that: exactly as you use it right now. You do not have to change anything.An Ounce of Prevention …
When the cost of avoiding harm is effectively zero and the magnitude and probability of harm are considerably more than zero, it’s unreasonable not to take measures to avoid that harm. Use good passwords, turn on two-factor authentication, and encrypt your files.
Good passwords and file encryption are basic computer security. If you aren’t doing both, you need to get caught up.
Featured image: “A set of Keys insecurely left in an old cobweb covered door” from Shutterstock.
Why bother with happiness? From the Declaration of Independence to modern self-help aisles, we are bombarded with resources and tips telling us to find happiness. But the happiness hawkers assume, usually without analysis, that happiness is a worthy goal. As good lawyers, we should examine the premise that happiness is worth achieving before we embark on its pursuit.The Upside of Happiness
There are a plethora good, research-backed reasons to pursue happiness. Happiness has been associated with numerous health benefits, including stronger immune responses. Happiness may also promote longevity.
At work, being happier may produce significant benefits.1 Barbara Frederickson, of the University of North Carolina, has found that happier people are more open, which helps them see more connections between ideas, think outside the box, and have more creative insights. Creative problem solving is, no doubt, a boon for attorneys. Happier workers also are more productive, which could help lawyers manage his or her notoriously heavy workloads.
And of course, there’s the obvious reason to pursue happiness: We simply feel better when we’re happy.
Yet this rosy picture, the one usually presented by the media and those who make a living selling happiness, overlooks important details that are especially relevant for lawyers.The Downside of Happiness
If we felt happy all of the time, we would be deprived of critical tools for our own development: negative emotions. Todd Kashdan and Robert Biswas-Diener, authors of The Upside of Your Dark Side, argue that every emotion has a job to do. Negative emotions “identify trouble or opportunity and suggest methods of repair or gain.”
Psychologist Aaron Sell, who studies anger, notes that anger prevents people from being exploited. Getting angry at opposing counsel may make them back down — protecting you and you client.
Or consider frustration, an emotion that’s a far cry from happiness. Frustration, while unpleasant, can be what some researchers call a “desirable difficulty.” It forces you to engage, struggle, and process more deeply. In another words, It helps you develop.
Failure and adversity are two more emotions that do not promote happiness, at least not in the short-term. But we need failure and hardship to learn and grow. This gives us the chance to fail, dig deep, and overcome obstacles. Unrelenting happiness doesn’t provide opportunities to examine shortcomings, which may be essential to improvement. And, ironically, as anyone who has ever returned from a setback can attest, the ultimate achievement is sweeter than it would have been without the obstacle.The Value of Pessimism for Lawyers “The ability to anticipate the whole range of problems and betrayals that non-lawyers are blind to is highly adaptive for the practicing lawyer who can, by so doing, help his clients defend against these far-fetched eventualities.” —Martin E. P. Seligman
Lawyers should approach pursuing happiness with special caution. In most endeavors, pessimism is maladaptive. Pessimistic athletes perform worse, pessimistic students get worse grades, and pessimistic life insurance agents sell less. But pessimistic people may make better lawyers. Though more study is needed, one examination of University of Virginia law students showed that pessimistic law students performed better than their optimistic classmates.
Pessimistic attorneys may be better able to spot potential problems for their clients. If you become too optimistic, there is a possibility you will not serve your clients quite as well.
That’s important because serving others may be one of the surest paths to a meaningful (if not happy) life. Happiness, in contrast, can be more about taking for oneself. One recent study by Steve Cole and Barbara Frederickson found that happy people who have little meaning in his or her lives look the same as people who endure chronic adversity.
Many lawyers derive deep meaning from serving his or her clients. In fact, the American Bar Association has advised that you seek meaningful work to improve well-being.A Better Goal: Meaning
There is a happy medium between pessimism and happiness. The first step is to become aware of when pessimism or negativity is needed so that you can turn it on and off. Hunting for the worst case scenario will help you draft a killer motion, but it may not serve you well outside the office. Learning what the pessimism feels like, when it’s warranted, and when you should leave it behind can enable you to excel as a lawyer while protecting your own well-being.
The second step is to search for meaning, not just happiness. Negative emotions are as important to a full life as the positive ones. As Rabbi Harold Kushner, author of When Bad Things Happen to Good People, wrote, “Life is not primarily a quest for pleasure… or a quest for power… but a quest for meaning. The greatest task for any person is to find meaning in his or her life.”
Featured image: “Businessman with a paper bag with angry face on it” from Shutterstock.
Is there another tool that lawyers rely upon more — yet think about less — than the humble legal pad?
Yes, I know. If you are a devotee of any version of the cult of productivity, you have likely tried to stop using legal pads in favor of some unholy combination of David Allen’s Getting Things Done, an app like Evernote, and the horrible mess that is the Reminders feature in your Outlook calendar. That approach is just fine if you are seeking to streamline your workflow. However, for note-taking — a lawyer skill you will always need until you shuffle off this mortal coil — you should be using a legal pad.
This presumes, of course, that you are taking notes by hand — because you should be. Doing so increases your retention and forces you to pay attention (rather than mindlessly pounding away on your laptop or starting a game of Fruit Ninja on your iPad) to what details are important. It also allows you to look much more attentive when talking to a client, rather than burying yourself behind an electronic screen.
So what legal pad should you be using?
Lawyers in firms big and small will likely answer this question with “whatever is in the supply closet.” Solo attorneys will likely modify this answer to “whatever is cheapest at Staples.”
Both of those answers are terrible.
Your legal pad is a vital tool and is worth a few extra dollars even if it comes out of your own pocket. If you are ready to spend the money and can bear the sticker shock, Levenger legal pads are far and away the best you can buy.
I started using them, in large part, because I use a fountain pen, and fountain pens bleed through a lot of supply closet/Staples type paper. However, you do not need to be a pen addict to love the Levenger pads. The same ridiculously thick paper that makes them fountain pen friendly also makes them far more impervious to tearing than the legal pad you stole from opposing counsel’s conference room last month. I routinely throw my Levenger pads in a bag full of headphones, books, charge cords, iPads, Ibuprofen bottles, and lunch. Through all of this, my Levenger pads hold up just fine. Doing the same to cheap legal pads only leads to a crumpled mess.
Even if you do not care about the weight, brightness, or smoothness of the paper you write on, Levenger wins for baking in the Cornell method of note-taking.
The Cornell method, which features a wide-left margin, separates your notes into an annotation section and a notes section. That annotation section can serve a couple of purposes, both of which are useful for lawyers.
If you are some sort of Philistine who refuses to take advantage of the Cornell method, Levenger also has full-page ruled legal pads. (Levenger also has more esoteric things like story board paper and dot grids, but I am assuming you are taking notes, not sketching out your next screenplay or designing a gazebo for the house. They also have recycled options for most varieties.)
Levenger legal pads also have a feature you will not care about until you try to go without it later: A header box with the Topic, File Under, Date, and Page pre-printed.
Having that header box allows you to organize your notes by project/case and topic. This forces you to remember to date and paginate. I think of myself as an organized person, but really what I am is a person who will be organized as long as you make it impossible for me not to be. If you are the same, built-in headers are for you.
But wait, you say! $32 for five notepads is ridiculous and I do not care about fancy paper! What should I buy?
You should not let your skinflint-ness deprive you of the opportunity to use the Cornell method. Go buy a case of Knee Pads from LawPapers. The paper is much thinner, and you will miss out on header space, but you will get the wide-left margin and a double-thick cardboard backing that makes it ideal for taking notes when you don’t have a desk at your disposal.
If you are the sort of person that doesn’t think you will go through a case of legal pads very quickly, or you are just philosophically opposed to buying things in semi-bulk online, head over to Office Depot and spend $6 on two TOPS FocusNotes pads. You get the Cornell ruling and a nice note summary section at the bottom (something the Levenger pads lack) but you get it on ridiculously thin paper. Give these legal pads a shot, and, perhaps one day, you will be enough of a Cornell notes fan you will graduate to the big leagues and buy a decent legal pad online instead.
Featured image: “Business man writing on legal notepad” from Shutterstock.
It’s a real dilemma: the busier your law practice gets, the more cluttered your Microsoft Outlook inbox will be.
While there are all sorts of tools that can help you achieve Inbox Zero nirvana, you owe it to yourself to take a look at the inbox management features already available in Outlook itself. Here’s how some of those features can help you fight inbox overload.1Move Routine Emails Out of the Way with Rules
It sure would be lovely to have someone available 24/7 to screen your email, highlight emails that need immediate attention, and move the rest to the side to deal with later. With Rules, you can.
For instance, I’ve created Rules that flag every email received from any uscourts.gov subdomain and moved them into case-specific subfolders based on its case number in the subject line. If one case is particularly hot, you can deal with those emails immediately and leave the rest for later in the day.
You can harness this same trick for moving newsletter subscriptions to a Read Later folder.
The easiest way to set up a rule is to open an email you want typically want to automate. Just right-click on that email and, in the contextual menu that pops up, choose Rule > Create Rule.
While you can do a simple rule in the Create Rule dialog box, the more powerful option begins with clicking on the Advanced Options button. This will take you into the Rules Wizard.
The Rules Wizard asks you three questions:
The Rules Wizard steps you through these three questions with checkboxes to select the available options. In this example, I’ll show you how to move an incoming ECF email automatically in a specific case to another folder and flag it for follow-up.Step One: Select Conditions
First, will check two conditions: the subject line and the sender.
With each of these conditions, you’ll need to click the blue underlined text and tell Outlook what specific words or phrases it needs to look for. Here’s where starting with an email like the ones you want to handle comes in handy, because Outlook will automatically take that subject text and bring it into the Rules Wizard. However, to use that text as criteria, you often need to tweak it.
The second criteria is the sender’s address. It’s the same drill: click the blue underlined text and specify what pattern Outlook needs to look for in the sender’s email address.Step Two: What do You Want to do with the Message?
I’m telling Outlook to move that email out of my Inbox and flag it for follow-up so it appears on my To-Do list. The steps are very much like the ones in the previous dialog box. We will click “specified” to pick the folder to move the email to, and then click “follow up at this time” to choose which flag will be applied to the email.Step Three: Are There Any Exceptions?
In this particular example, we do not have exceptions. But if you wanted to exclude any ECF emails that were also sent to your assistant, you could check the box next to “except if the body contains specific words” and substitute your assistant’s email address.One-Click Email Handling with QuickSteps
Some of you are shuddering right now. I totally get it. The thought of having “the machine” move your emails to heaven-knows-where without alerting you first can lead you to believe an important email will disappear into thin air. If you prefer a more hands-on approach, you can use QuickSteps to achieve the same result without adding too much work.
QuickSteps is, basically, a macro (though Microsoft carefully avoids using that word). A QuickStep lets you click one button to start a series of commands, like marking an email as “read” and moving it into another folder (or forwarding to your assistant).
Look on your Home tab in Outlook, and you will see several QuickSteps Outlook provides to you by default:
Click on “Create New” to create your own QuickStep.
There are all sorts of options, and you can choose multiple Actions for the same QuickStep:
For example, you could make the first Action “Mark As Read,” then add another Action “Forward,” and a third Action “Move to Folder.”
Depending on which Actions you choose for your new QuickSteps, you can select a whole bunch of emails, click the QuickStep button, and they’ll all get magically handled.Redirecting Replies to Your Assistant (or Anyone Else)
Ever send out an email to a large group — co-counsel in a case, the Young Lawyers section of the local bar association, whomever — and asked them to send their responses to your assistant, only to have them send an avalanche of return emails to you instead?
To be charitable, they’re probably just too swamped to read your directions carefully. But you can turn his or her inattention into your advantage.
Before you hit send, go to the Options tab and, over on the right, click “Direct Replies To.” Delete your name from that field and substitute your assistant’s (the Select Names button takes you to your Address Book). When done, click Close, then send your email.
No more avalanche.Get Creative with Inbox Management
You can probably look at your Inbox any given day and group 90% of the emails into a category (read later, forward to someone for handling, etc.). Avoiding email overload may be as simple as strategically deploying one or more of these tools.
Featured image: “Young man getting overload with emails.” from Shutterstock.
Unless otherwise noted below, all instructions and screenshots are for Microsoft Office 2010 for Windows. ↩
From the Remedial Action Law Blog:
Just ignore the all-caps. You know better than to use all-caps.
82 percent of 3L law students believe they are effective legal writers. In contrast, only 57 percent of practicing attorneys who work at companies that hire recent law school graduates believe recent law school graduates are effective legal writers.
71 percent of 3L law students believe they possess sufficient practice skills. In contrast, only 23 percent of practicing attorneys who work at companies that hire recent law school graduates believe recent law school graduates possess sufficient practice skills.
“The Duty of Confidentiality and the Attorney-Client Privilege: Sorting Out the Concepts,” by Professor Grace M. Giesel, was originally published in the January 2015 edition of the Kentucky Bench & Bar Magazine.
Attorneys often confuse the ethical concept of the duty of confidentiality and the evidence concept of the attorney-client privilege. It is not at all unusual to hear attorneys talk of information being “privileged” when the information might be protected by the duty of confidentiality but is in no way protected by the attorney-client privilege. Sometimes lawyers are simply misusing the word “privilege,” but understand that the two concepts differ. Other times, however, attorneys are, as one of my students recently phrased her own understanding, “a little fuzzy on that.”
So let’s clear up some of that fuzziness.
As a general matter, both the duty of confidentiality and the attorney-client privilege encourage clients to trust his or her lawyers. The attorney-client privilege, especially, encourages clients to tell his or her lawyers everything, though the duty of confidentiality does this as well. With complete information, lawyers can provide the best and most appropriate advice.
The duty of confidentiality places ethical restrictions on a lawyer’s disclosure of information relating to the representation of the client. Almost every state’s ethics rules are based on the ABA Model Rules of Professional Conduct. Model Rule 1.6 sets forth the parameters of the duty of confidentiality.
In contrast, the evidentiary principle of the attorney-client privilege is usually a creature of common law. A few states have codified the privilege in a rule of evidence, but that is not the norm. More typical is a definition and description by judicial opinion like that in United States v. United Shoe Machine Corp. That court explained the privilege as follows:
The privilege applies only if (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.
Other courts may use slightly different words but they all agree that privilege applies to confidential communications between an attorney and a client, or his or her respective representatives, made for the purpose of obtaining or rendering legal advice and not in furtherance of a crime or fraud. If the privilege applies to a communication, disclosure of that communication cannot be compelled.
While the concepts of the duty of confidentiality and the attorney-client privilege are similar, they are not the same. A lawyer may have a duty of confidentiality with regard to information about his or her representation of a client, but because the information is not a part of a confidential communication, it does not benefit from the protection of the privilege. A court could compel the client or the lawyer to disclose that information.The Duty of Confidentiality
Model Rule 1.6, the rule dealing with a lawyer’s duty of confidentiality, contains the following basic statement:
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
This duty has broad application. A lawyer who represents a client in a divorce matter, and who discovers information about the client’s relationship with the client’s wife while talking to the client’s neighbor, has a duty to keep that information confidential. This general confidentiality principle continues after the representation ends and applies to information received about prospective clients as well.
The duty of confidentiality not only forbids revealing information, but also proscribes a lawyer’s use of confidential information about a client to the disadvantage of that client. With regard to former or prospective clients, a lawyer may not use confidential information to the disadvantage of a former or prospective client unless that information has become “generally known.”Disclosure “Impliedly Authorized” or with “Informed Consent”
Of course, a client may give “informed consent” to a disclosure of otherwise confidential information. “Informed consent” requires the lawyer to explain to the client the risks that accompany such a disclosure as well as the alternatives to such a disclosure. In addition, Model Rule 1.6 allows disclosures that are “impliedly authorized in order to carry out the representation.” A client represented by a lawyer who practices in a firm with other lawyers, absent contrary indication, impliedly authorizes the lawyer to share confidential information with other lawyers in the firm.Other Permitted or Required Disclosures: Model Rule 1.6(b)
Model Rule 1.6(b) identifies seven situations in which a lawyer may disclose confidential information even though the client does not consent to the disclosure and does not authorize it. A lawyer may reveal information:
With regard to each exception, a lawyer may disclose only the information reasonably necessary to meet the underlying purpose.To Prevent Reasonably Certain Death or Substantial Bodily Harm
Model Rule 1.6(b)(1) allows a lawyer to disclose confidential information “to the extent the lawyer reasonably believes necessary” to avoid “reasonably certain death or substantial bodily harm.” If, for example, a lawyer, in the course of representing a client in a child custody matter, learns from a third party that his client has expressed an intent to drown her children in the river, that lawyer may disclose such information to the authorities.To Prevent a Client’s Crime or Fraud that is “Reasonably Certain” to Substantially Injure Another’s Property or Finances
The exception in Model Rule 1.6(b)(2) allows disclosure to prevent the commission of a crime or fraud but requires that the lawyer’s services be used in furtherance of that crime or fraud. Also, there must be a reasonable certainty that the crime or fraud will do significant property or financial damage to a third-party. Perhaps a lawyer assists a client in drafting various documents the client intends to use in raising capital from investors for a business idea. After the lawyer completes the work but before the client has succeeded in getting any money from the target investors, the lawyer discovers that the client’s scheme is an entirely fraudulent endeavor. The lawyer may disclose.To “Prevent, Mitigate, or Rectify” a “Reasonably Certain” Substantial Property or Financial Injury to Another
The exception in Model Rule 1.6(b)(3) allows disclosure to “prevent, mitigate, or rectify” a property or financial injury to another when the lawyer’s services were used to further a crime or fraud that is responsible for the injury. Again, the injury must be a reasonable certainty. Continuing with the above example, if the lawyer discovered the client’s fraudulent scheme after the client had already succeeded in separating the investors from their money, the lawyer may disclose under this exception in an attempt to assist the investors in retrieving their money.To Obtain Ethics Advice
In order to encourage lawyers to consult with others about the ethically proper path, Model Rule 1.6(b)(4) allows a lawyer to disclose confidential information to obtain “legal advice about the lawyer’s compliance with these Rules.”To Establish a Claim or Defense on Behalf of the Lawyer
Model Rule 1.6(b)(5) allows a lawyer to disclose information to defend herself. If a client makes a claim against a lawyer for malpractice, the lawyer can disclose confidential information to defend herself. If the lawyer has been charged criminally or is subject to civil liability or disciplinary action or any other adverse proceeding in relation to the lawyer’s representation of the client, the lawyer may disclose confidential information to defend herself.
In addition, a comment to Model Rule 1.6 clarifies that an attorney may disclose information to establish entitlement to a fee in a collection action.To Comply with Other Law or a Court Order
Model Rule 1.6(b)(6) allows a lawyer to disclose confidential information if a court orders the disclosure or if other law demands such disclosure. For example, a state might have a statute that requires reporting of child abuse and specifically states that it applies to lawyers. A lawyer could abide by the statute without violating the duty of confidentiality.To Identify and Resolve Conflicts of Interest Related to a Lawyer’s Change of Employment
Model Rule 1.6(b)(7) contains a provision that is relatively new to the Model Rules and so is not yet widely adopted. This provision takes into account the fact that in today’s world of the practice of law, lawyers move from one firm to another with some frequency. Also, firms merge and split. As Model Rule 1.17 provides, lawyers also may sell law practices. In order to make these practice form changes, lawyers must have the ability to evaluate whether such moves create conflicts of interest before those conflicts are created. This exception allows a limited disclosure so that lawyers may evaluate such practice changes properly in advance of the change.Other Permitted or Required Disclosure
Model Rule 1.13, which addresses representation of an organization, also contains a provision for a permitted disclosure. Section (c) of Model Rule 1.13 permits a lawyer to disclose confidential information outside the organization, but only if the lawyer has followed the internal reporting procedure provided by Model Rule 1.13, the lawyer believes the situation to be harmful to the organization and a clear violation of law, and the “highest authority” in the organization has failed to address the problem in an “appropriate manner.” Even so, the lawyer may disclose confidential information only if the lawyer reasonably believes the situation “is reasonably certain to result in substantial injury to the organization.”
Model Rule 3.3, which deals with candor to the tribunal, is a bit different in that it mandates disclosure of otherwise confidential information as part of the lawyer’s duty to be absolutely candid with the court. For example, if a lawyer, the lawyer’s client, or a witness called by the lawyer, offers evidence that the lawyer later learns is false, that lawyer has a duty to “take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”
Likewise, “[a] lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” Part (c) of Model Rule 3.3 clarifies that the duties under Model Rule 3.3 apply “even if compliance requires disclosure of information otherwise protected by Rule 1.6.”
Several other rules require disclosure of information but state that a lawyer need not disclose unless Model Rule 1.6 permits the disclosure. For example, Model Rule 8.3 requires a lawyer to report misconduct of another lawyer unless Model Rule 1.6 protects the information or the lawyer or judge gains the information “while participating in an approved lawyers assistance program.”The Attorney-Client Privilege
In contrast to the duty of confidentiality, the attorney-client privilege is the evidentiary principle that confidential communications between attorneys and their representatives and clients and their representatives and even prospective clients that are made for the purpose of obtaining or rendering legal advice, and not in furtherance of a crime or fraud, cannot be compelled. The privilege is the client’s, though the client’s lawyer, acting as the client’s agent, can waive the privilege or assert it.
A representative of the lawyer is generally a person employed by the lawyer to assist the lawyer in rendering professional legal services. The representative of the client is a more complex concept because clients who are organizations must act through individuals but yet not all individuals involved with an organization should be seen as having the power to engage with the lawyer so as to invoke the privilege. Jurisdictions have varying approaches to delineating who may be a representative of a client especially when organizational clients are involved.
As an initial matter a representative of a client is someone authorized to act for the client. In addition, many courts have tried to explain, in the context of organizations, which communications with which agents are privileged. For example, in Harper & Row Publishers, Inc. v. Decker, the court stated that a communication can be privileged if “the subject matter upon which the attorney’s advice is sought by the corporation and dealt with in the communication is the performance by the employee of the duties of his employment” and “the employee makes the communication at the direction of his superiors in the corporation.”Absolute Protection
While a court may order disclosure of information clearly within the bounds of a lawyer’s duty of confidentiality, if a court determines that the attorney-client privilege applies to a communication, the communication cannot be compelled; in other words, the protection is absolute.
This absolute protection is in contrast to the application of the work product doctrine set forth in Federal Rule of Civil Procedure 26(b)(3), which protects from disclosure material prepared in anticipation of litigation. Even if a court determines that material is work product, a court can compel the production of work product if the opposing party proves substantial need for the material and undue hardship in accessing the virtual equivalent of the materials through other means.Narrow Interpretation
The United States Supreme Court in Upjohn Company v. United States stated that the privilege’s “purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Though this rationale of the privilege is laudable, because the privilege keeps relevant information out of the hands of the truth-finder, courts tend to apply it narrowly.Protects Confidential Communications
The attorney-client privilege applies only to communications; it does not apply to the underlying information. So, for example, a lawyer might ask a deponent, “What did you tell your lawyer about what you did that day?” Opposing counsel should object on the basis that the answer to the question would require disclosure of a privileged communication. The questioning lawyer could ask a query aimed to elicit the underlying information as follows: “What did you do that day?” The deponent could answer this question without disclosing an attorney-client privileged communication.
If a lawyer is asked to produce the lawyer’s notes about a conversation with the client’s neighbor, in which the lawyer and the neighbor discussed the subject of the representation, the notes may be work product and protected by that doctrine. The duty of confidentiality also protects the information relating to the conversation with the neighbor about the client, but those notes are not protected by the attorney-client privilege and can be compelled by a court. Recall that the duty of confidentiality allows a lawyer to disclose confidential information to comply with a court order. That provision of the duty of confidentiality would apply in this situation.
In addition, the communication must be intended to be confidential. A communication between lawyer and client with other, unnecessary third parties present is not privileged because the presence of the unnecessary third parties implies a lack of intent to have a confidential communication.
If the lawyer represents several clients jointly, the privilege applies to conversations among the clients and the lawyer. Since only attorneys and clients and their representatives are included in the communications, there are no unnecessary third parties present and thus no negative implication for confidentiality. A corollary to that principle is that one joint client cannot assert privilege in a matter in which the joint client is adverse to the other joint client relating to the common representation.
The privilege also may apply in the “common interest” setting; parties who do not share counsel but who have a “common interest” may communicate with each other without losing the protection of the privilege. What exactly suffices as a “common interest” is not clear.Communication Made for the Purpose of Facilitating the Rendition of Professional Legal Services to the Client
For the privilege to apply, the communication must be made for the purpose of obtaining or rendering legal advice or assistance. Occasionally, a client consults with a lawyer about more than legal issues and matters. A client might value the judgment of the lawyer on business issues as well as legal issues. The attorney-client privilege, however, does not apply to communications that do not relate to legal advice.Exception for a Communication In Furtherance of a Crime or Fraud
If a client consults with a lawyer and then uses the lawyer’s advice to commit a crime or fraud, the communication is not privileged. This is true whether or not the lawyer knew of the client’s purpose at the time of the communication. Of course, a lawyer who knowingly assists a crime or fraud has violated Model Rule 1.2(d), which forbids such misconduct.Other Exceptions
Jurisdictions may recognize that the privilege does not apply in a few other situations. For example, a jurisdiction may not apply the privilege to a communication relevant to an issue concerning a document to which the lawyer is an attesting witness.Waiver
Generally, a client’s disclosure of otherwise privileged communications to someone outside the attorney and client circle of confidentiality destroys the privilege. A client who discloses to others an attorney-client communication that was confidential when it occurred may be held to have waived the privilege by the disclosure to others. The disclosure indicates that the client no longer desires that the communication remain confidential.
A client also can waive the privilege by putting a communication at issue. For example, a client cannot claim an advice of counsel defense and then maintain that the communications containing the advice are privileged.
A lawyer can waive the privilege on behalf of the client if the lawyer is acting in the role of client’s agent. So, for example, a lawyer who fails to object in a timely manner to disclosure can be held to have waived the client’s privilege.
Inadvertent disclosures, such as when a document production includes a privileged document that mistakenly was left in the collection of materials to be produced, may or may not waive the privilege. Federal Rule of Evidence 502 provides that when the inadvertent disclosure occurs in a federal setting, the disclosure does not waive the privilege if: “the holder of the privilege or protection took reasonable steps to prevent disclosure; and … the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).”Conclusion
While both the ethical duty of confidentiality and the evidentiary principle of the attorney-client privilege relate to information held by a lawyer, they are distinct concepts with separate parameters. Because of the duty of confidentiality, a lawyer has an obligation not to disclose information relating to the representation of the client, though, as discussed above, the rules are rife with exceptions. The attorney-client privilege protects only confidential communications between attorney and client that are made to facilitate the rendition of legal services. While the duty of confidentiality allows disclosure in certain situations, such as when disclosure is necessary to abide by a court order, the privilege, if it applies to a communication, prevents court compulsion. Each doctrine has it exceptions and nuances different from those of the other doctrine.
It is easy to conflate these doctrines. A careful lawyer will give proper attention to his or her ethical duty of confidentiality as well as be mindful of the application of the attorney-client privilege.
Professor Grace M. Giesel is the Bernard Flexner Professor and Distinguished Teaching
Professor at the University of Louisville Louis D. Brandeis School of Law. She teaches contract law, professional responsibility, and contract drafting. Professor Giesel holds a B.A. in economics from Yale University and a J.D. from Emory University School of Law, where she graduated with distinction and as a member of the Order of the Coif. Professor Giesel is the chair of the KBA Ethics Committee and is the author of many articles on professional responsibility and contracts topics. She is a member of the Louisville, Kentucky, and American Bar associations.
Featured image: “A man wearing a suit showing a document with the text confidential written on it.” from Shutterstock.
By my count, 13 states have so far formally adopted the revised comment to Rule 1.1.
Here’s that comment, just to remind you:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology …
In fairness, it’s not at all clear that you can’t be a Luddite anymore in those states. As I pointed out in the comments on Bob’s post, the comment does not change Rule 1.1, and it’s not clear that it imposed a duty of technological competence.
And that comment says “should,” not “must.” In the report, I believe the committee explained that it was just trying to point out the obvious [that technological competence is part-and-parcel of professional competence], but I’m not sure it’s a straight line from what the comment says to a duty of technological competence. Isn’t it the same for states that adopt the changes as-is?
Brian Tannebaum also pointed out that the comment’s vagueness probably provides plenty of cover for Luddite lawyers.
To me, it appears that lawyers simply need to know that water is wet, or something.
Even so, the comment to Rule 1.1 spreads awareness, if nothing else, that being incompetent when it comes to technology is no excuse when your clients are harmed.
Featured image: “dinosaur skeleton isolated with clipping path” from Shutterstock.
While the email disclaimers lawyers use are pointless anyway, the IRS would like you to go ahead and stop using the especially pointless Circular 230 disclaimer:
[T]he Circular 230 disclaimer that now appears at the bottom of many emails and on memos can and should be eliminated.
If you want to know more, read Kelly Erb’s post, “A Reminder To Ditch The Disclaimer This Tax Season,” on Forbes.
(h/t Kevin Grierson on SoloSez)
If you are interested in mindfulness or meditation as a way to reduce the stress of your law practice, you are probably already reading Jeena Cho’s articles on Lawyerist, but you should also check out her new podcast, Resilient Lawyer. Here is the latest episode:
Edit: Here’s the Will Meyerhofer interview (it’s a sneak peek!):
The guests’ hobbies so far include skydiving, mountain climbing, oil painting, magic, astronomy, opera singing, winemaking, boxing, chess, ballet, and more. (No winter campers, yet.)
Clever podcast with some interesting lawyers.
Lawyers should be able to get continuing legal education credit for watching daytime court shows like Judge Judy and The People’s Court. Seriously.
Daytime court shows are a window into the brains of regular people as they try to deal with their legal problems. If you watch closely, they contain important lessons about your clients that can make you a more effective advocate.
You can also learn a lot from watching conciliation court, but conciliation court judges and referees don’t let the drama play out. They cut off the wandering stories and just pry the material facts out of the parties. On court shows, the drama is the whole point, so the “judge” doesn’t cut off the “litigants” to keep the calendar moving. As a result, you get to see what the parties are thinking. You get a glimpse of their strategy, their ulterior motives, and their idea of justice.
Here are some of the things I’ve learned from Judge Judy and her colleagues on the court TV bench.1. Everyone Thinks They Can Be a Lawyer
The subtleties of legal argument are mostly lost on non-lawyers, who frequently think they would do a better job than a lawyer. Watch the after-the-verdict interview, and you’ll find that the losing party almost always thinks Judge Judy was just too dense to understand his or her clever theory of the case.
This often plays out when you meet with a potential client, too. Potential clients often walk into a lawyer’s office full of suspicion, if not outright mistrust. If you can’t get them to trust you and stop second-guessing you, it will be tough going throughout the representation. This generally takes longer than one meeting, obviously, but mutual trust is the key to a successful attorney-client relationship.2. Many People Just Want to Be Right
Time and again, Judge Judy’s litigants get off the point to argue about who was right about minor, immaterial details. Non-lawyers often treat litigation like a game where points are awarded for being right about anything that seems important at the time. They waste time and often harm their case by constantly wandering off the subject.
In order to help your clients testify more effectively, you have to help them understand what is relevant to their claims — or at least to trust you when you tell them. Yes, sometimes you may want to tell more of the story, but that should be a strategic decision, not something your client insists on doing in a futile effort to “win points.”3. The Legal Dispute is Rarely the Real Issue
If the legal dispute were the real issue, the parties probably would not want tell so many irrelevant facts in the first place. The reason they want to talk about all those side details is that they tell the story of what really matters. Many lawyers do not take this into account, and focus only on the money owed (or not owed). But if you can find a way to resolve the real dispute, the legal dispute may resolve itself.
(It is also a good idea to figure this out early on, because the money may not matter so much to your client once the other issues are resolved, and that could be a problem for you, especially if you are working on contingency.)4. You May Be Surprised by Your Clients
Every now and then, one of the parties will say something that makes sense — or even that is truly profound. That is why you should pay attention while your clients wander off in tangents in your office. They may not understand what is relevant, but they always know what they think is important. And sometimes they are right.
Listening to your clients takes time and patience. It’s easy to fall into the habit of skipping ahead to the important stuff. The problem is that as you skip ahead based on your expectation of what is important, you may miss some critical facts you weren’t expecting. That just means the whole story will come out later — probably when it will do the most harm. Make sure you let your clients tell their stories in your office so you aren’t surprised later on.
Next time you are working from home — or sidelined by the flu, spend a few hours watching some court TV shows. While you cannot (yet) get CLE credit for watching Judge Judy, consider it valuable research into the attorney-client relationship.Updates
40% of small law firms don’t have a website, and Casey Flaherty’s Legal Tech Audit was just the beginning of his quest to reform the way law firms use technology and price their services.40% of Small Law Firms Don’t Have a Website
Don’t always look at solos and lawyers in small law firms as luddites or curmudgeons because they don’t have a website.
We don’t agree. Lawyers ought to have a website as a matter of common decency, if nothing else. Listen in for our reasoning.Interview: Casey Flaherty
I’ve administered the audit 10 times to nine firms (one firm took it twice). As far as I am concerned, all the firms failed—some more spectacularly than others. The audit takes me 30 minutes. … The best pace of any associate was 2.5 hours. The worst pace was 8 hours. Both the median and mean (average) pace rounded to 5 hours.
In our interview, Flaherty talks about where the LTA came from, how he developed it, and what it means for the future (including his own future at Cost Control, LLC, his new venture).Listen and Subscribe
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The Internet of Things (IoT) — what happens when you connect everything to the Internet, from coffee mugs and washing machines to cell phones and cars and jet engines — makes us feel like the Jetsons/Matrix/Dick Tracy future we’ve always wanted is finally here.
There is no doubt you are already familiar with many IoT devices. By 2020, there will be 26 billion Things, and that estimate does not include smartphones, computers, and tablets. Those are just plain old Internet devices. There are already a number of smartwatches, ranging from the aggressively utilitarian to the downright fancy. You can also buy a refrigerator that will let you know if you are running low on beer, thanks to an internal camera and chat app.
Other IoT devices in the pipeline will have several practical applications for attorneys and professionals. Who doesn’t want a car that will drive itself while you update some case notes? Everything will talk to everything, and it will be an enormous legal and security nightmare.
Now, to be clear, we aren’t talking about an overwrought dystopian horror show where machines come alive like Maximum Overdrive …
… though that is definitely terrifying. Instead, we are talking about an Internet of Things that is, at least at this point, nearly completely unregulated.
At first glance, the possibility of things going wrong with Things seems trivial and even a bit comic. Your smart fridge goes mad and orders a metric ton of cheese. In real life, the possibility of your Things going awry are much subtler and actually much worse. The Chairwoman of the Federal Trade Commission, Edith Ramirez, spoke at the Consumer Electronics Show in Vegas earlier this year and outlined some key concerns.
First, your newly connected world is going to collect data. Tons of data.
Ubiquitous data collection refers to the cumulative impact of multiple sensing and tracking technologies, which — working in symphony — could sketch a “deeply personal and startlingly complete picture of each of us”, said Ramirez, with the massive volume of collected data allowing analysis that generates additional sensitive inferences.
Connected devices are also increasing the sensitivity of the data collected, as sensors and devices find their way into the most intimate spaces in our lives: our homes, our cars, and even onto our bodies.
If your car is helpfully collecting data on where you go, how you get there, and how long you stay, you are creating a (quite literal) road map to your client’s location. That might be fine if you retained ultimate control of that data, but the entire point of IoT is that it only works if data is flowing constantly. Worse still, what if your hypothetical future client is an IoT aficionado? She is also going to be creating a road map of her travels — data that may very well be discoverable.
Next, all that data being scooped out of your car, your refrigerator, your thermostat, and your television is not your data. It is data that belongs to Apple, Samsung, LG, Ford, and Microsft, just to name a few. And, Ramirez pointed out, companies have never been shy about selling your data.
So, rather than being used to enhance the experience of the particular product a consumer bought, the data a connected device harvests might be funneled off elsewhere — and be used by prospective employers to judge the merits of a job application, for instance, or insurance companies to ascertain the risk of accepting a new customer, and so on.
Besides creating massive amounts of data that you do not necessarily want that will be kept by private companies, the Internet of Things also holds the potential for data security breaches that will eclipse the scale of the Target or Home Depot breaches.
Twenty-six billion Things all connected together in the next five years? That is twenty-six billion more connected objects that are hacking targets.
Your cool automated home office with the smart thermometer and smart lock? Those devices are running on your home network. Those devices are two more entry points into your wireless network and all of your data.
Regrettably, as much as the FTC seems aware of the potential problems, it does not seem all that interested in regulating the security of these devices. Writing at Re/code, FTC Commissioner Terrell McSweeny offered a very tepid suggestion about the security issues.
To mitigate security risks, the FTC recommends that IoT device manufacturers incorporate security into the design of connected products. Properly implemented, security by design requires manufacturers to consider security throughout the entirety of a product’s lifecycle.
This means, for example, incorporating security practices into the culture of a corporation, bringing security expertise into the design phase of a product, working with vendors who prioritize it, and establishing breach protocols that can be implemented when flaws are discovered or attacks occur. Specific security measures required may depend on a number of factors, including the sensitivity of the information collected by a device and the costs of remedying security vulnerabilities.
While it is nice to think companies will be mindful of security considerations, particularly concerning sensitive material, plenty of companies have shown no restraint collecting and storing mounds of often-unsecured data.
So industry self-regulation seems very much like wishful thinking. It is likely the security landscape of the Internet of Things will be carved out by trial and massive error as new devices become available. So, as appealing as that smart fridge or wireless furnace controller might be, you may wish to exercise some caution in the brave new world of Things for your and your future client’s sake.
Featured image: “Internet of things vector illustration with flat design.” from Shutterstock.
Wink markets this with the ever-so-slightly terrifying tagline “Think of it as teaching your home to think on its own.” ↩