The Digital Law Practice

There is a scene in the movie First Monday in October that depicts two justices of the Supreme Court arguing in chambers. The fictional Justice Dan Snow (played by Walter Matthau) opines that judges are obliged to descend from the rarefied atmosphere of the bench when they are making their case decisions: “All we ever get to see are lawyers, cold records, cold briefs. Where’s the human being? Where’s the pain? We have to reach out and touch flesh.” While appellate judges are obligated to be dispassionate, and removed from the drama of the trial court, Snow’s lament is understandable: the impersonality of trial records and voluminous attorney briefs can obscure the true nature of the litigants and their opposing positions.

First Monday dates from 1981, the era of typewriters, carbon paper, and landline telephones. It would be interesting to hear Snow’s comments today, in the era of Internet research, e-mail, iPads, laptops, and “smart phones.” While the conveniences of digital technology are as integral to the practice of law as to any modern business or institution, digital gizmos may interfere with as much as assist the officers of the court in their daily work. Even beyond the security and reliability problems all computer users occasionally suffer, the rise of electronic gadgets has not been entirely compatible with the particular conventions and practices of the legal profession. Consider the misguided magistrates who have been reprimanded for texting or surfing the Web rather than giving full attention to the case before them. Witness also the common decision of lawyers and judges to ban cell phones and especially smart phones from their offices, courtrooms, and chambers due to the distraction of their beeps, ring tones, and other demands for attention.

Under sworn testimony I would have to admit that I miss much about the typewriter and handshake days, when the common practice was not electronic transmission, but direct communications between attorney and client, attorney and attorney, and attorney and judge. When I began my legal work in 1984, all of our verbal communications were either in person or via landline telephones. Moreover, we had no fax machines, and the fastest way to transmit a document was courier delivery (during regular business hours only) or overnight mail. The practice of law was slower then, in any number of ways, and not all of them beneficial. But the reduced speed of data transmission allowed us to contemplate the legal issues at greater length, and to think before we fired off an e-mail that could be shallow, faulty, or impersonal, as too many attorney e-mails are today.

In my present law practice (litigation, administrative/government, transactional) I am both irritated and mystified by the general lack of attention that some clients, enamored of their electronic gadgets, pay to their own cases. I therefore insist that my clients disable their smart phones so that we are not interrupted while in conference — and they usually comply. But I sometimes receive looks of insult or complete surprise in response to my request. I’ve lost some clients that way, and some legal fees, too. But cases demand the full attention of both attorney and client for the professional relationship to continue in the proper semblance of order.