In case you haven’t noticed, across the United States, people are staring at their phones while walking through the streets in search of winged creatures. They are playing Pokémon Go and suffering everything from minor scrapes to catastrophic injury and death. Why are all these people playing Pokémon getting hurt? Are they stupid? Inattentive? Negligent? Grossly Negligent?
Nope. They are suffering from a phenomenon I’ve written about before – Inattentional Blindness.
Some of my readers were skeptical that such a thing even exists. Sometimes attorneys, with their analytical minds, doubt that such a thing exists. Pokémon in your law practice?
Of course, there was the famous Invisible Gorilla Experiment that was conducted where observers who focused on basketball players didn’t see a man walk across the basketball court – in a gorilla suit.
And then came Pokémon – as if a social scientist’s wish was granted.
Hundreds of Pokémon players – across the United States – are walking in front of cars, falling in holes, bumping into each other and generally getting injured in every way imaginable.2 They are victims of Inattentional Blindness.
I couldn’t imagine a better way to illustrate that the more you focus on one thing, the less able you are to see everything else. That is inattentional blindness.
What Does That Have to Do With a Law Practice?
So what does that have to do with the practice of law? How about this? The more an attorney focuses on a client, a case, a transaction – anything – the less they are able to see everything else.
We are not taught that perception is limited. Somehow, lawyers end up believing that whatever the challenge is, we can rise to the occasion. If there are several challenges at one time, we can rise the occasion.
But the science suggests that we, in particular our perception, is limited. When we are focusing on one challenge, we have less ability to focus on another challenge at the same time. We have less ability to focus on people or things that are not a challenge.
Like reconciling bank statements.
Like a significant other.
Or children.
Like our own health.
Establish Systems To Avoid Pokémon In Your Law Practice
Systems (such as policies, checks and balances and verification) are an effective way to ensure that inattentional blindness does’t injure you or your practice.
If you insist on playing Pokémon, a great system might be to always have a spotter so that you don’t step off into an open manhole. Hey, take turns so your spotter can play too.
If you insist on focusing on being the best attorney, a great system might be to make sure that similar systems are in place to ensure your clients, firm, and you don’t get injured as well.
Brandon L. Blankenship is an assistant professor, continuing legal education presenter, and business educator. He and his wife Donnalee live on their hobby farm south of Birmingham, Alabama.
Although counterintuitive, research has overwhelmingly shown that Inattentional Blindness is real and dangerous. See American Psychological Association, Sights Unseen (or see the closest distracted driver.) ↩
What if your next email went viral? Can you protect attorney email from going public? Really public? If someone subpoenaed my attorney email account, they may find these statements peppered throughout my emails:
“Since the statute has been amended, there is no basis for creating two entities.”
“On your way home will you pick up some cashews?”
“My client is not willing to accept that offer unless your client will agree to confidentiality.”
“Love you too, shmoog – ums.”
“See if Ray Scott will help you, he helped me pick fishing spots last Spring.”
I may have been able to object to one of these emails (the first one) based on attorney-client privilege. Based on the facts of the action, the rest of them are probably going to be produced in response to a subpoena. Once I’ve produced them, they are one step closer to going viral.
Attorney-Client Privilege Is Limited
One way to protect attorney email is to make it clear that you intend for the email to be privileged. Remember that for attorney-client privilege to attach, the email chain has to be for the purpose of seeking or giving legal advice.
-Statute interpretation – YES
-Cashews, love, fishing expert – NO
-Business advice – NO
If you intend for the email to be privileged, say so. An introductory phrase like, “In response to your legal question,” goes a long way in evidencing your intention.
And then there is waiver. Attorney-client privileged communications published to third parties waive the privilege. Yes, it is easy to forward an email, but one forward may destroy privilege. In some jurisdictions, the waiver is extended to the ENTIRE SUBJECT MATTER.
Why Not Two Email Accounts?
One way to protect attorney email is to avoid mixing it in with all of your other email. So why not maintain two separate email accounts – one for attorney-client communications and another for everything else? The email account for attorney-client email could have the most recent disclaimers related to clients and law practice. In the event it was subpoenaed, all of the emails would be privileged.
The email account for all other communications, however, would have a much broader disclaimer.
-I am not providing any advice in this email as an attorney and you follow any such advice at your own risk.
-No amount of email communication establishes a business or attorney-client relationship.
-Unless there is an express, written agreement to the contrary, I am not in a business or professional relationship resulting from this email or any series of emails.
How about this disclaimer that my local deputy sheriffs have on their email account?
-The opinions expressed are my own and do not represent those of the Shelby County Sheriff’s Office, The Shelby County Commission, County Government, or Elected Officials.
Or At Least Flag Privileged Communications
One way to protect attorney emails is to have a standard flag for those you intend to protect. If you insist on keeping all of your emails in one account, consider a heading at the beginning of the email that you intend to be privileged that states something like this:
PROTECTED BY ATTORNEY-CLIENT PRIVILEGE DO NOT FORWARD OR SHARE
You can even add a disclaimer in your email signature that states how emails without this heading are intended to be treated.
Note that the opposite method does not work. Adding “ATTORNEY-CLIENT PRIVILEGE” to all of your emails does not make them privileged. In fact, stating that emails which are obviously not privileged are privileged weakens your privilege claim on emails that actually should be privileged.
Or Just Don’t Write It At All
You know it, but just as a reminder, once something is written, there is a chance it will outlast you. Once it is transmitted in any way through the internet, it will outlast you. Your case will be finished, you will be resting in the great beyond and your email will still be floating around in cyberspace. If you consider that your email may be a large part of your legacy, you may write more purposefully.
And while you are living there is another consideration. What you write in an email may end up on the front page of the paper (or the Huffington Post). Even if you have written the email, ask yourself, “what if this went viral tomorrow?” before you click send.
Question whether you should write it at all. If a quick phone call is faster, expresses your tone of voice better, and more clearly communicates what you want to say, why write an email at all?
Brandon L. Blankenship is an assistant professor, continuing legal education presenter, and business educator. He and his wife Donnalee live on their hobby farm south of Birmingham, Alabama.
Mobile devices have been around for a while. Their capabilities have grown so steadily, however, that many lawyers can’t remember the exact moments when desktop computers slipped off our desks and into our pockets – into our smartphones, tablets, and laptops. That might explain why so many lawyers have a mobile device but not a mobile device policy.1
This phenomenon may be the reason that a portion of your workload may have been outsourced right under your nose. Outsourcing usually conjures thoughts of contracting services with foreign vendors. But it can mean obtaining services from outside, especially in place of an internal source. So, when an employee carries work of the firm outside of the firm on a mobile device and works on it, haven’t you effectively outsourced legal services?
A deliberate, well-thought-out decision to outsource would mostly result in a written contract that ensured knowledge and competence of ethical rules. The contract may contain, for example, confidentiality provisions and establishing a secure way to share files. But, there is no corresponding internal policy for the use of mobile devices outside the firm.
Then someone in your firm accesses a file on their smartphone using StarBucks™ WIFI.
And works on the file.
The firm just obtained services from a source outside the firm.
And unless the firm has established policies about services being performed outside the firm, the risks are incalculable. Here are three things to consider when establishing written mobile device policies.
One: No Public WIFI
When a firm employee jumps on free WIFI, their communication becomes part of the WIFI provider’s data stream. It is governed by the WIFI provider’s policies. It is subject to subpoena or voluntary disclosure. There may or may not be privacy protections to protect the release of account numbers, passwords, personal information, and so on.
Even though public WIFI is evermore available, there is no way to include the providers of the WIFI (like Starbucks™) in a contract that ensures security.
More so, many public WIFI providers are so insecure that they do not restrict other people on the same public WIFI from seeing each other’s communications. The kid on the other side of the room may look like he is playing a video game when he is actually reading your emails as you send and receive them.
The easy solution is to have a written policy that prohibits the use of public WIFI for devices (smartphones, tablets, laptops, etc.) that contain firm files.
Two: No BYOD
Many organizations cut costs by simply requiring employees to BYOD – Bring Your Own Device. The employee’s personal device then fills up with a mixed bag of personal data and firm data.
This practice is problematic:
When an employee raises a privacy objection in response to a discovery request or subpoena;
Where a firm employee is suspected of inappropriate actions and the firm cannot legally access the cell phone;
Where the firm requires that firm files are backed up using an encrypted backup method. This concern is growing. The iPhone 7, for example, will be released with 32 GB of storage. This is enough storage to hold the files of a solo practice. It is difficult to backup only firm files without also backing up personal files. There is also the concern that the user manages the password and may refuse or be unable to provide it when it is most needed;
When the device is lost or stolen. Firm devices that contain client information should be configured to self-delete in the event they are lost or stolen.2 Firm employees that BYOD may see the deletion of their personal files as a privacy invasion.
A mobile device policy should draw a hard line between the firm’s device and personal devices. Firm devices should require a passcode to access and take the considerations above into account.
Three: Teach Your Mobile Device Policy
Do it yourself, ask a firm employee to do it, or ask a technology vendor to do it for you. Having a mobile device policy is meaningless if someone doesn’t understand it. It is worth a working lunch or an hour off-site to educate firm employees. Data security is only as strong as the one person that gets sloppy. Once your data is compromised, it is all compromised.
And here is a tip that makes reading this article worth it (if nothing else does.) Video your training. Then, each new hire can watch the video. By doing this you emphasize to the new hire the importance you place on the mobile device policy and that is one way to create a culture of compliance.
Brandon L. Blankenship is an assistant professor, continuing legal education presenter, and business educator. He and his wife Donnalee live on their hobby farm south of Birmingham, Alabama.
At some point, you have to make a decision about whether you are going to be among the attorneys that delegate or not. If you started your practice in an established firm, you made the decision early. Someone was already in place to answer the phone, make copies, and such. Someone else probably wrote the checks and reconciled the checking account. Your first legal work was most likely assigned by a partner (you were a delegee) and so you learned a delegation method from experience.
If you were a solo practitioner, you may have started out with no one to delegate to and so the fact that you had to make a delegation decision was clearer. You never have to delegate, but refusing to delegate tasks that do not require your unique skills and talent stunts your professional growth. Even so, there is some level of risk in every delegation. Here are four rules for minimizing this risk for lawyers.
Attorneys That Delegate to Lawyers
There is some level of comfort in delegating to lawyers because you might think, “they will never do anything to put their license at risk.” Or, you may think that an associate will certainly do quality work because they are building a reputation and they want it to be a good one. Rule #1: Don’t expect people to act in their own best interest.
It is true that most people who worked to complete law school and get admitted to practice will do what you would expect – work to build a good reputation and stay well within the professional rules. The challenge is that the people who won’t act in their own best interest aren’t required to wear a big orange ring with a capital “W” on it for “Warning.” They look like everyone else.
So, Rule #2: Maintain a reporting system when you delegate. Design a reporting system that allows you to independently verify the status of the task you delegated. If it is a written assignment, review of copy of a draft. If it is writing the checks for the office expenses, have the checks presented to you with evidence of the expense for your final signature.1
Establish check-in dates so you can monitor progress. When possible, monitor objective sources. Do not confuse delegation with abdication. Without check-ins, without reporting, you have abdicated. Abdication puts your life, at least your professional life in the hands of someone else. Is that ever a good plan? No.
Attorneys That Delegate to Non-Lawyers
Non-lawyer delegees pose an added burden. Most states have adopted Model Rule 5.3 in some form which requires that non-lawyer delegees not simply complete a task, but “…ensure that the [delegee]’s conduct is compatible with the professional obligations of the lawyer….”2 With such a heavy burden, strongly consider following Rule #3: Delegate in writing.
Communicate your requirements clearly with understandable expectations and deadlines. Your instructions should include a description of your desired end product, time estimates, and the context of the matter to help the delegee exhibit initiative in carrying out the assignment. Attorneys that delegate should provide the necessary resources including samples, precedents, citations, and other people that can help delegees get the job done right.
Writing out each delegation may seem like a lot of work, but it serves three purposes. One, it gives you an opportunity to consider what ethical implications the delegation may have. You may bark out an order thinking that the person receiving the order will not just do it but will do it the right way – like you would. But a non-lawyer delegee is not you and they are at risk of violating a rule that they are not even aware of. Written delegation instructions give you the opportunity to communicate how to do it right. Two, written instructions clearly communicate your expectations. Three, in the event that your intentions are ever questioned in an inquiry by a regulatory agency or your client, the contemporaneous written delegation is powerful evidence.
Guard Against Omissions
Delegees usually don’t want to be seen as a failure. If for no other reason, they want to keep their job. Also, as delegees faithfully complete tasks you have assigned them, they earn trust. Once trust is established, it is easy to start taking the delegee’s word that a task is completed properly rather than make an independent verification. Tasks that are halfway completed or done wrong often reveal themselves pretty quickly, but what about the task that is omitted altogether? Often the fact that a task is omitted does not reveal itself until the damage is great. Rule #4: Create systems for reviewing and keeping track of assignments you have delegated.
I knew one attorney that had one whole wall of his office converted into a whiteboard so that he could track the progress of work he had delegated. Another attorney showed me special shelves he had built so that his files could be displayed facing outward. Deadlines and delegated tasks were written on the face of each file. Many attorneys use software or apps to track the progress of delegated work. The best system isn’t necessarily the one with the most bells and whistles – it is the one you use.
There are tons of free resources available on how to make delegation itself work, read a book, take an online course. You can become a master at delegation. Remember, however, that when you delegate as an attorney, it is not enough to simply get it done. It has to be done the right way, at the right time, for the right reason.
Brandon L. Blankenship is an assistant professor, continuing legal education presenter, and business educator. He and his wife Donnalee live on their hobby farm south of Birmingham, Alabama.
I Should Have Had This Simple Habit, Why In The World Didn’t I? discusses in detail the delegation of bank account reconciliation. ↩
Rule 5.3, Responsibilities Regarding Non-Lawyer Assistants, 2013, American Bar Association, Center for Professional Responsibility, Model rules of professional conduct, Retrieved from: http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct.html ↩
Remarkable attorneys have no need to advertise. Clients are drawn to remarkable. Like Matlock for murder, there is a name for a remarkable attorney that comes to mind for every area of law. If you don’t know the name, you can discover it in a few calls. Some attorneys are geographically remarkable. If you need a lawyer in Tuskegee, Alabama, you probably want Fred Gray – he is remarkable.1
To further illustrate remarkable, I have profiled a few non-lawyers who have moved into the legal services industry. Jon Colgan, for example, built a company that effectively represents consumers when cell phone companies breach their contracts and demand an early termination fee when cell phone customers want to leave. Colgan’s company effectively charges a one-third contingency fee of avoided early termination fees. He built his company to a $13 million annual run rate.
Remarkable Attorneys Don’t Advertise
These lawyers and legal service providers are remarkable because they are doing something exceptional – something worth talking about – not because they advertise. In fact, as advertising is defined here, remarkable attorneys don’t do it. Now in the sense that a business card is advertising, most all lawyers advertise in some way. But in the sense of commercial advertising, not all lawyers do it. Here, I am focusing on commercial advertising (television, billboards, and radio) that was originally used to convince or convert consumers into customers. Commercial advertising, by definition, reaches large, mostly untargeted, groups of people. A super-majority of attorneys “polled stated that they think legal advertising has harmed the public image of attorneys.”2
Look Inside a Law Firm That Advertised
Normally, it would be difficult to get an inside look into a highly profitable law firm that used, as its primary source of new customers, commercial advertising. In the case of Davis v. Alabama State Bar3, however, the Alabama Supreme Court pulled the curtain back on just such a practice and there is a lot to learn from it.
The law firm in this case spent in the high six figures4 primarily on television advertising. The advertising drove a high volume of prospective clients to call the law firm.
Triage and Turn-Down Expensive
Commercial advertising causes the phone to ring with hundreds, maybe thousands of potential clients. Each prospective client that calls can either be a million-dollar case or a malpractice claim. The person answering the phone must be able to triage (decide on the urgency of) the prospective clients and decide on at least a preliminary course of action. Six figure claim? High priority. Statute runs tomorrow? High priority. Everyone else? Less than high priority.
Also, the Davis firm had to clearly communicate to each caller who was turned down that any attorney-client relationship that was established during the call was terminated. This hazard would be heightened due to the lack of sophistication of most callers.
Enormous firm resources were invested in this triage phase. And, the resources that were allocated to triaging prospective new clients were taken away from working with actual clients. The process encouraged treating every client as routine.
Expenses Required Quick Turnover
In Davis, the cost of commercial advertising plus the cost of managing the high volume of calls pushed the firm to “minimize expenses and maximize profits.”5 For example, inexperienced associates carried an average of 600 active cases with little support staff. If you consider that the average number of billable hours is 2,081, that comes to roughly three and one-half hours per case. Written policies, however, encouraged the development of new clients over working with existing clients. The Alabama Supreme Court concluded that “[t]he amount of time that could be spent on each case was limited to make it impossible to adequately represent clients.”6
Unremarkable Culture
Rather than a culture that encouraged remarkable representation, the Davis case describes a culture where there were not enough file cabinets so client “files were simply stacked in various parts of the office, including the employees’ break room and the hallway near the bathrooms. … Policy requir[ed] associates not to return phone calls of existing clients so that the attorneys could free more time to sign new clients.”7 And clients’ lost any chance of recovery to missed deadlines.
A Call to Remarkable
In Quoting Justice O’Connor, the Court encouraged advertising firms to continue (or perhaps return) to a professional life:
There are sound reasons to continue pursuing the goal that is implicit in the traditional view of professional life. Both the special privileges incident to membership in the profession and the advantages those privileges give in the necessary task of earning a living are means to a goal that transcends the accumulation of wealth. That goal is public service, which in the legal profession can take a variety of familiar forms.
Being remarkable is a public service. In Davis, a motivation for high volume and quotas encouraged others to be motivated by high volume and quotas. Contrastingly, a commitment to being remarkable encourages others to be remarkable.
Finding Remarkable
Another non-lawyer, Derek Bluford, demonstrates how to find remarkable. He observed that getting to talk to a lawyer was a delayed, anxiety-filled process. Even if a prospective client could get an appointment the next day (and that was fast), they still had a sleepless night ahead while they wrestled with a gnawing unanswered legal question.
The problem, it takes too long to talk to an attorney. Derek Bluford’s remarkable answer – Quick Legal – a company that connects prospective clients to attorneys within minutes 24/7 via Facetime or Skype. Where attorneys are constantly complaining about a shrinking or flat legal services market, Quick Legal built an annual run rate of $780,000 in its first year of operation. Quick Legal became remarkable by identifying a pain point for clients and providing a solution.
Incidentally, Quick Legal drives numerous clients to attorneys that might otherwise be concerned about a shrinking legal market.
The Road to Unremarkable
As soon as legal service you provide is unremarkable, there are plenty of competitor attorneys who are willing to provide unremarkable service and charge a smaller fee. As shrinking fees ratchet downward, clients are inevitably commoditized. Lawyers that rely on commercial advertising for client development and then provide legal services a commodity are doomed to the fate of the unremarkable.
Brandon L. Blankenship is an assistant professor, continuing legal education presenter, and business educator. He and his wife Donnalee live on their hobby farm south of Birmingham, Alabama.
I’ve always felt pretty good about my ability to detect the liar. After all, it’s part of the process of how I made a living for many years. If I could prove that a witness was lying, it was a game-changer. If I sensed my opponent or her client was lying, it influenced my litigation strategy. If I sensed my client was lying, it influenced my client’s relationship (or lack of relationship). I’ve never had either admit they were lying, but I knew the liar. Or did I?1
One of the reasons that I felt so confident in identifying liars was simply life experience. I’ve been lied to a few times in the past. I remember what that experience was like and I work not to repeat it. Another reason I felt so confident was that I have studied it. As the science of lie detection has developed over the years, I took the continuing education classes and read the books. Imagine my surprise when I discovered that a trusted friend and employee had consistently lied to me for over five years a bunch of money, including my money. How could that be?
Previous Lie Detection Methods Less Than .25% Accurate
There are so many methods of detection: body language, eye movements, micro-facial expression, voice tone changes, and on and on. “According to one study, just 50 out of 20,000 people [using these methods] managed to make a correct judgment with more than 80% accuracy.”2 That is less than .25% accurate.
Diverse Human Behavior is the Challenge
The challenge is that human behavior varies widely and as populations become more diverse, behavior becomes more varied. Within a single family, reactions vary greatly. One child’s cheeks may blush when they are happy while another child’s cheeks may blush when lying. Body language and eye movements are strongly influenced by culture. For example, one culture may conclude that someone tells the truth because they “look you in the eye.” Contrastingly, another culture may never look others in the eye because it is considered impolite.
One Way to Spot A Hidden Enemy
One way to spot a liar is open-ended questions followed by listening. Research conducted to increase air travel security evidenced that asking open-ended (not yes/no) questions gave the interrogator an opportunity to listen to the answer and consider the credibility of the story itself. This method takes advantage of basic conversation skills to test credibility. For example, interrupting the story to ask for more details taxes the liar’s ability to create additional – credible facts. When appropriate, interrogators asked for the story to be repeated in reverse order – a request that liars struggle to complete.
The key is not to point out inconsistencies and contradictions but to let the liar continue to build his or her story on lie upon lie. Eventually, the liar becomes overwhelmed with the number of false facts he or she has to remember.
As the liar becomes overwhelmed look for three signs:
-The liar begins to contradict their own story.
-Where the liar was verbose they clam up.
-The liar becomes evasive or erratic. Or answers questions with questions.
Isn’t This Just Talking?
Although this may seem like talking, it isn’t just talking. Interrogators trained in these techniques were “20 times more likely to detect [lying]”3 Interestingly, novices using this technique were almost as accurate as trained interrogators.
A Final Consideration In Detecting the Liar
One important element in all of the research, whether staged or real, is being open to the possibility that what you are being told may not be true. As long as you believe that there is no possibility that someone is lying to you, only the liar who makes the grossest mistakes will be detected. And hidden enemies don’t make gross mistakes.
Brandon L. Blankenship is an assistant professor, continuing legal education presenter, and business educator. He and his wife Donnalee live on their hobby farm south of Birmingham, Alabama.
