Litigation and Trial - Max Kennerly : Philadelphia Trial Lawyer Max Kennerly : Business and Commercial Litigation : Civil Attorney : The Beasley Firm : Philadelphia Pennsylvania

Over at the [non]billable hour, Matthew Homann posted a hilarious Venn Diagram for "What Lawyers Put In Their Biographies" vs. "What Clients Look For In Lawyer Biographies."

The diagram is so true it hurts to look at it. The first line in What Clients Look For — "will you return my calls?" — touches on an issue I have been thinking about again lately. Sometimes, I worry about the exaggerated importance placed on a lawyer's "responsiveness" to client contact.

I've written about client contact before. Maybe I'm so troubled by the issue because I represent most of my clients on a contingent fee; my job isn't to make them think that I'm a good lawyer (and thus justify paying me by the hour), my job is to win cases, and that takes precedence over everything else.

Don't get me wrong: a lawyer not only should keep their client informed about the status of their case, but in fact is ethically required to do so, and should get consent before making major decisions relating to the case. Similarly, if a client has an emergency, that's a different story entirely.

My worry doesn't relate to whether or not clients should be upset or concerned if they are kept totally in the dark — of course they should be upset and concerned — but rather relates to the amount of "responsiveness" that a client should expect of an attorney, and the extent to which "responsiveness" should be a factor in assessing the work performed by an attorney.

Two issues come to mind.

First, the speed at which a lawyer returns a call is no indication of that lawyer's quality. There are plenty of lawyers who, over the years, have developed a knack for smooth-talking clients into choosing courses of action that create the least amount of work for the lawyer while still creating the appearance of work and thus justifying the fee. The criminal defense lawyers who do little more than chat with the prosecutor to get a slightly better plea bargain offer; the plaintiffs' lawyers who never think twice about trial and rarely spend the time and money for thorough discovery and credible experts; the business attorneys who recommend a few pointless changes and spit out some legalese to the client over the phone. Many of these lawyers have learned to be available for clients 24/7, notwithstanding their poor work, and are quick-witted enough to have a soothing answer for every problem that arises during a case, right up until they tell the client that the jig is up and there's no hope but to accept a bad plea bargain, or a crummy nuisance-value settlement, or a contract that bears no resemblance to the transaction.

Second, I know it's blasphemy for me to say it, but client contact comes second. Not first. Second. First comes competent representation: meeting deadlines, developing the case, and facing problems in the case head-on by devoting all of your time, energy and attention to the problem until it is resolved or avoided. That type of dedication to each case necessarily impacts your ability to respond to all the other clients whose cases just aren't as urgent at the moment.

Is that ideal? Of course not. Ideally, a lawyer can juggle all of these balls at the same time, but let's be honest: few lawyers can really devote themselves to their work while simultaneously guaranteeing every client that they'll get a call back within 24, 48, or even 72 hours of a non-urgent call. Only two types of lawyers can do that: the types with few clients, and the types who are good only at sweet-talking clients.

But at least it's fair: I can say with a straight face that, for all of my clients, for every time when I did not respond to a client's non-urgent phone call or e-mail because I was focusing on a more urgent matter, there is a corresponding time when I was focusing on their case and not responding to someone else's non-urgent call.

Do I wish I could do better? Absolutely. Any lawyer who isn't always trying to do better shouldn't be practicing. But there are only so many hours in the day, and I have no intention of cutting back on my representation so that I can get better at my marketing.

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I'm not writing it down to remember it later, I'm writing it down to remember it now.

—Field Notes' slogan.

Via Arts & Letters Daily, Nathan Schneider, senior editor of Killing the Buddha, has a post about the rise of reading via computers, Kindles and iPads, titled In Defense of The Memory Theater:

The Greeks and then the Romans created imaginary edifices by which they could carry entire speeches, taxonomies, and epics in their heads. By the medieval period, this tradition was expressed in Dante’s circles of Hell and Aquinas’s placement of memory within the cardinal virtue of prudence—thereby elevating it to a moral responsibility. As Renaissance polymaths drew from classical and esoteric sources, they designed and even physically built more elaborate theaters of memory. In place of an audience, the 16th-century memory theater of Giulio Camillo presented to its stage an array of images, symbols, and archetypes that amounted to a microcosm of the cosmos. Standing before it, a person could loose the binds of forgetfulness and access the mind’s resources unrestrained. “Whoever is admitted as a spectator,” reported Erasmus, having heard about the theater from a correspondent of his, “will be able to discourse on any subject no less fluently than Cicero.” Shakespeare’s Globe Theater, Yates controversially argued, was designed in this way to help the actors remember their lines. Francis Bacon reportedly had a private memory theater in his home, with painted glass depicting “several figures of beast, bird and flower.”

...

In the age of inexpensive, printed books, our memory theaters have become both richer and more banal; we have entrusted them to our bookshelves rather than to tricks of mental contortion or cosmic schemata. As I look over my own shelf, I see my life pass before my eyes. The memories grafted onto each volume become stirred and awakened by a glance at the spine, which presents itself to be touched, opened, and explored. Without the bookshelf’s landscape to turn to, that manifest remainder from a lifetime of reading, how would one think? What would one write? ...

I confess to feeling the allure of the burning library. Maybe we all do, a little. A culture so willing to downsize and sell off its libraries must. It gestures toward the shadow side of being so dependent on, and thus protective of, a bookshelf. When it becomes my memory theater, what have I become? What becomes of me without it? A passage comes to mind that I first discovered in Yates’ Art of Memory, from the Phaedrus of Plato. Socrates is repeating the speech of an Egyptian king named Thamus to Theuth, the god who has just invented writing:

[T]his invention will produce forgetfulness in the minds of those who learn to use it, because they will not practice their memory. Their trust in writing, produced by external characters which are not part of themselves will discourage the use of their memory within them. You have invented an elixir not of memory but of reminding; and you offer your pupils the appearance of wisdom, not true wisdom, for they will read many things without instruction and will therefore seem to know many things, when they are for the most part ignorant and hard to get along with, since they are not wise, but only appear wise.

Plenty has been written about the transition of reading from print to computers; google Nicholas Carr ("it makes us stupid") or Clay Shirky ("it gives us a cognitive surplus") for more. I agree more with the latter than the former.

My focus here is more on memory. High school and college students are often told that lawyers, particularly trial lawyers, need a good memory.

There's some truth to that, but no trial lawyer uses their "memory" in the same ways in which students are asked to use it. I've never known, nor heard of, any trial lawyer sitting down and setting aside time for the express purpose of memorizing facts about a case. It just isn't how the work is done.

Instead, before a trial, lawyers work their way back and through the testimony and evidence in their cases; the process is less like the memorization of facts for a test and more like the kneading of dough for bread. There aren't any short cuts, but there also aren't any secrets about the process, and it's hard to do it wrong so long as you do it. Keep kneading, and kneading, and kneading, and the case will become second nature.

But the real memorization for a trial begins before the pre-trial process. It begins during the litigation, in the drafting of discovery, in depositions and hearings, and in the preparation for them. That's where the taking of notes becomes critical, and why I quoted the Field Notes slogan above:

I'm not writing it down to remember it later, I'm writing it down to remember it now.

My practice is to take notes at depositions and hearings, to dictate my thoughts (while reviewing the notes) into a memo soon thereafter, and then to review and to clean up the memo after I've seen the transcript itself. By that point, I've committed the same information to writing three times: first at the event (through the notes), second in dictation, and third in review of the memo.

After that, I rarely need to review the notes or even memo in detail, because I've gone through it enough that I already remember it. The final memo is my memory theater: I skim it, and the depositions, notes, dictations, and transcripts come back to me. My memory refreshed, I can focus on the unknowns in the case. The dough isn't ready to rise, but it's been kneaded most of the way.

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Yesterday Adrian Dayton commented on the three most common reasons why people fail at blogging:

In dozens of conversations with busy professional I hear time and time again similar excuses to the ones I made to my Father as a kid.

“I’m too busy.”
“I barely have time to respond to all my emails.”
“I don’t want to commit to something I can’t stick with.”

Most people who try to blog fail for three major reasons. 1. They aren’t sufficiently motivated to blog. 2. They aren’t organized enough to blog. 3. They don’t know what to say.

I'm no fan of blogging about blogging — and rarely do it here — but I've been asked a couple times lately about my thoughts on blogging, and I suppose I have been around long enough to have learned some valuable lessons. (For those of you who wrongly view traffic as an indicator of a blog's worth, my Alexa traffic ranking would put me around ~115th on Avvo's list of Top Legal Blogs, to which I have been too lazy to add myself.)

Yesterday I also came across a post on Lionel Messi, generally considered to be the greatest soccer player in the world, which I think sets up a useful framework:

I knew most of this Lionel Messi stuff before I got here. I read stories about him. I watched some highlights of him playing. I understood, on that surface level, just how good a player he is.

But then … I saw him play. Not highlights. Not a few of his greatest shots. Full games. And I saw him in context, with the World Cup buzzing, with vuvuzelas blowing, against the background of other players, excellent players, good players, OK players, who are trying to do the very same things he is doing.

Only they cannot. Messi simply does things — little things and big things — that other players here cannot do. He gets a ball in traffic, is surrounded by two or three defenders, and he somehow keeps the ball close even as they jostle him and kick at the ball. He takes long and hard passes up around his eyes and somehow makes the ball drop softly to his feet, like Keanu Reeves making the bullets fall in “The Matrix.” He cuts in and out of traffic — Barry Sanders only with a soccer ball moving with him — sprints through openings that seem only theoretical, races around and between defenders who really are running even if it only looks like they are standing still. He really does seem to make the ball disappear and reappear, like it’s a Vegas act.

Going back to Adrian, his four points — motivation, organization, figuring out what to say, and overcoming fear — can be consolidated into two main points: have the right mindset (motivation and overcoming fear) and adopt good habits (organization and figuring out what to say). The former is the "big thing" and the latter is the "little thing." To persist in writing a blog, and to write a blog that's worth reading, you need to be good at both. Some are great at both. Many can't do either, so their blogs fail.

A blogger's mindset is the most important determinant of success. Why do you want to blog? To bring in clients? If so, give up now, scrounge together some cash, and buy yourself an ad on the side of a bus or in a business magazine or where ever else your potential clients are. There's nothing wrong with advertising; the vast majority of people don't know any lawyers or don't like the lawyers they do know, and so might think to turn to you when they need one. An advertisement is a simple and easy way to get people to know your name and, maybe, give you a call.

Blogging, however, is not so simple. Remember back in high school or college when you had to write an essay or exam in a class you were only taking because you had to? That's what blogging-as-advertising is like, and you will quickly either learn to accept mediocrity in your posts or will burn out trying to force yourself to write something worth reading.

Put another way, you need to feel the need to blog, and you need to enjoy doing it. There is no substitute for that mindset.

Moving on to habits, even if you like to blog, it's still easy to end up either hating blogging or producing mediocre content if you don't develop good blogging habits.

First, figure out what kind of blog you want to write. Sure, everyone can imagine an idealized blog in their head, the blog that's always funny or always outraged or is always on top of news right when it hits, but don't too much stock in that. Put stock in experimentation. Consider what author David Mitchell — who knows a thing about writing and self-promotion, since he was recently the subject of a fawning portrait in The New York Times — said about his first book after an agent told him it was "god-awful" and had to be scrapped:

“I had doubts about its quality,” Mitchell told me. “But it had taught me the doubts. What writing it had taught me was that it’s not that great a novel after all.” And it taught him something more: “I had been trying to prove to myself that I could get over this incredible obstacle, this unscalable cliff face of—am I the sort of person who can get a novel written or not? Until you’ve written one, it’s just . . . wow. A feat that humans not like you achieve.”

Start a private blog that only you read so you can test out various ways of blogging. People like to tell themselves what kind of writer they want to be, but they have just as much control over that as they do over the types of foods they like: some things work and others don't. You will never know if you are a comedian or a stemwinder or a scholar until you've put in your hours actually writing. Start writing and keep writing.

Once you start writing and keep writing, get into the habit of it. You should not have to force yourself to put together a blog post. It should be just as much an ordinary habit as checking your voicemail, reading the paper, responding to client emails, or whatever else it is you do on a daily, weekly, or maybe monthly basis. Until writing becomes a habit, it will be a hard slog.

Finally, figure out your sources. As fascinating as I'm sure your daily legal practice is, odds are good that you won't be able to write about the most interesting parts of it. In the past week I've seen several amazing developments in a few of my cases, but, alas, I can't tell you a word about them. You thus will need a continuous source of new information and inspiration which you can report or upon which you can opine. Do you want to read your local newspaper and comment on local news? What about recent court opinions? How about other bloggers, and, if so, who?

Blogging is a pie eating contest in which the prize is: more pie. If you write well, you will get readers who will want you to write more. You will be contacted by those who run blogs, publish magazines and books, host radio shows, or organize CLEs with offers for you to contribute to those forums with your thoughts. Does that interest you, even though most of those pay nothing at all? If so, great! Blogging may be for you. I find contributions to other forums one of the more rewarding parts of my practice, but don't kid yourself that such is the path to fame and riches. It's just more pie, so you better like pie to start with.

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Norm Pattis is weary of questions:

I realize this sounds harsh, but I am simply undone by the sorrow, the rage, the anger and sometimes the sheer irrationality of folks caught within the law's vice. My firm is a small shop, but we have one paralegal whose job it is to serve as the communication point for clients. He engages in a sort of triage with the thousand and one questions that arise in a day. Still, there are needs that go unmet, clients who believe that we do not pay enough attention to their needs.

The trickiest part of being a lawyer is knowing which cases to take. No lawyer can get along with everyone. There are simply bad marriages. I've had more than a few. I have moved to withdraw when some client's needs overwhelm me and my firm. We once represented a person who insisted they be consulted on each media call. The client wanted to write what lines we should recite when a reporter called. When we decided simply not to respond to media inquiries, fur flew. We were soon accused of working to undermine the client's interest. It was time to get out, and so we did. It was an unhappy parting.

In another case, I did not consult my client on each move in the case. I withdrew certain counts of a civil case when it became apparent to me that I could [not?] meet my burden of proof. I did not consult the client, who, early in the course of the litigation, started asking questions about whether the proceeds of the litigation were taxable. The client was counting chickens before they hatched; I was worried about the fox. I was grieved by the client in that case, and the federal grievance committee found probable cause to believe I had failed in my duty to communicate adequately. I moved to withdraw from that case as well. A later hearing before a District Court judge resulted in no discipline. The client now believes I was engaged in some [broad] and far-reaching conspiracy.

As Norm concedes, this failing makes him a "less than perfect lawyer." It does. A perfect lawyer informs the client of each and every event in the case, including informal correspondence with third parties or with opposing counsel.

But there are only so many hours in the day. Even if a lawyer obsessed about their cases every hour of the day — which we don't want them to do, since it will cloud their judgment — they still wouldn't be able to explain every hypothetical possibility to the client.

Fact is, if a client wants a perfect lawyer, they need to find one willing to devote their entire practice and personal life to their case alone.

The rest of us imperfect lawyers use two techniques: triage and ticklers.

Triage is just like in the hospitals: we attend to the most pressing matters first. David Dow, who represents defendants on Texas' death row, is one of the most respected lawyers in America, yet his The Autobiography of an Execution concedes letting cases go by the wayside for months, sometimes years. He's a less than perfect lawyer, and understandably so: he can't hunt down every trace of exculpatory evidence for a client whose execution is years away when another one of his clients is weeks, days or hours away from death. My triage in civil litigation doesn't carry as much gravity, but it's no less real: I must prioritize the most urgent matters. I do the same for every client when their matter becomes the most urgent matter.

A "tickler" (part of a "tickler file") is a funny name that lawyers dreamed up for "reminder." Litigators in particular are always on some sort of deadline, either by way of the statute of limitations, a deadline for filing or responding to a motion, the closing of discovery, the submission of expert reports, the preparation for a hearing, the taking of a deposition, or trial. Sometimes, the necessary work can be done in minutes. Sometimes it will take weeks. The ticklers are ways of interrupting the triage to point out that work due later needs to be started now.

In theory, it should be easy to incorporate client contact into this system by making ticklers for client conduct. There are, however, only so many hours in the day. More importantly, attention, like time, is a limited resource. I can only give a client a status update when I am in the office, which is only when I'm not at a court conference, a hearing, a deposition, on trial, or otherwise out. But when I'm in the office, I'm bombarded every day with dozens of calls, emails, letters, filings and, yes, ticklers for other matters. More distractions equals less attention.

I don't know the specifics of Norm's practice, but I presume that he, like most criminal defense lawyers, represents clients on a fixed fee. I represent clients on a contingent fee, and I bet Norm does, too, when he files civil suits. We are thus both not paid for our time, not paid to consult, not paid to teach; we are paid to fight the whole battle from start to finish.

If you want someone to teach you the intricacies and contradictions of the law, that's available, just be ready for $60 for each courtesy email. But if you've hired someone on a contingent or fixed fee to do battle, it's not unreasonable for them to contact you only as necessary and as useful for your case.

For my clients, if you haven't heard in a while and don't know the status, please write or call, and we'll put your call in the triage and the tickler file and get back to you. If we don't get back to you in a few days, call again. (Email is even better, since I get it outside the office.) If you've learned of or thought something interesting, please write or call, and I'll consider it. Otherwise, I'll contact you when necessary and useful for your case, such as when you need to review an allegation, prepare for discovery, or consider an offer, and I'll forward you the court filings I made on your behalf.

Norm considers this "harsh." I don't. The vast majority of my clients appropriately contact me when they genuinely have questions about the status of their case, then ask me a handful of questions. We discuss it until they understand, and then I get back to work. That's fine. It's reasonable and appropriate for clients to expect it.

My clients are, by and large, polite people with reasonable expectations. Indeed, some cases require substantial investigation pre-suit, are on appeal, or are delayed by the defendant's bankruptcy, leading to months of inactivity, and yet some of those clients apologize to me for interrupting my work when they check in after a few weeks. They don't have to; it's their case, their right.

Only a tiny fraction wear out their welcome. For those, there really isn't a question as to what should be done. The lawyer is unhappy with the client and the client is unhappy with the lawyer. Representation should not be undertaken or should be ended as soon as possible. Easy to say, hard to do.

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Yesterday, after posting a link to a productivity guide recommending email be checked twice daily, I saw this leaked email from a big name at a litigation powerhouse:

Now more than ever there are many talented lawyers and law firms competing for our business. Doing really good legal work is not enough. Clients expect that and well they should given what we charge for our services You must all realize that we are in a service business. In this day and age of faxes, emails, internet, etc. clients expect you to be accessible 24\7. Of course, that is something of an exaggeration—but not much.

LESSON NUMBER ONE: You should check your emails early and often. That not only means when you are in the office, it also means after you leave the office as well. Unless you have very good reason not to (for example when you are asleep, in court or in a tunnel), you should be checking your emails every hour. One of the last things you should do before you retire for the night is to check your email. That is why we give you blackberries. I can assure you that all of our clients expect you to be checking your emails often. I am not asking you to do something we do not do ourselves. I can assure you that [other big names at the firm], etc. all check their emails often.

I check my email frequently except when I don't.

There's two reasons for those times that I don't.

First, to follow the advice of Seneca, himself a great trial lawyer, on keeping a law practice in perspective:

Look at those whose prosperity men flock to behold; they are smothered by their blessings. To how many are riches a burden! From how many do eloquence and the daily straining to display their powers draw forth blood! How many are pale from constant pleasures! To how many does the throng of clients that crowd about them leave no freedom! In short, run through the list of all these men from the lowest to the highest—this man desires an advocate, this one answers the call, that one is on trial, that one defends him, that one gives sentence; no one asserts his claim to himself, everyone is wasted for the sake of another.

But there are also less lofty reasons to avoid the siren song of the crackberry.

The second reason I take time off from email — both scheduled time and time as needed — is to follow Sun Tzu's command: "Ponder and deliberate before you make a move."

Cognitive science agrees:

After a 30-minute study period, the students were separated into three groups to test their understanding of the larger "big picture" relationship between the individual patterns: Group One was tested after a period of 20 minutes; Group Two was tested after a 12-hour period; and Group Three was tested after a 24-hour time span. In addition, approximately half of the students in Group Two slept during the 12-hour period, while the other half remained awake. All of the students in Group Three had a full night's sleep.

The test results showed striking differences among the three groups, especially between the students who had a period of sleep and those who remained awake.

"Group One, the students who were tested soon after their initial learning period, performed the worst," says Walker. "While they were able to learn and recall the component pieces [for example, Shape A is greater than Shape B, Shape B is greater than Shape C] they could not discern the hierarchical relationships between the pieces [Shape A is greater than Shape C] -- they couldn't yet see 'the big picture.'"

Groups Two and Three, on the other hand, demonstrated a clear understanding of the interrelationship between the pairs of shapes.

"These individuals were able to make leaps of inferential judgment just by letting the brain have time to unconsciously mull things over," he says. But, perhaps most notable, he adds, when the inferences were particularly difficult, the students who had had periods of sleep in between learning and testing significantly outperformed the other groups.

Strategic planning and tactical maneuvering in litigation requires a lot of thought, including the serious application of inferential judgment and relational memory, the types of cognitive work that demand contemplation and downtime.

Make room for that cognitive work. The crackberry can wait.

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Marc Andreessen, one of the more successful entrepreneurs of Silicon Valley, has an interesting post in which he lays out his productivity tips. A sample:

• Don't keep a schedule.
• Keep three and only three lists: a Todo List, a Watch List, and a Later List. 
• Each night before you go to bed, prepare a 3x5 index card with a short list of 3 to 5 things that you will do the next day.
• Structured Procrastination.
• Do email exactly twice a day -- say, once first thing in the morning, and once at the end of the workday.
• Don't answer the phone.
• Only agree to new commitments when both your head and your heart say yes.
• Do something you love.

Well worth considering — I keep similar lists, prioritize my tasks for each day, utilize 'structured procrastination,' and do my best to avoid being bogged down by email and phone calls. Read the post for the details of each, and for a few tips specific to particular organizational contexts.

Andreessen took a lot of flack for the "don't keep a schedule" part, and, by and large, such isn't practical for lawyers or for anyone who isn't a wealthy entrepreneur with the ability to determine their scheduling.

That said, there's a lesson to be learned from it: meetings, travel, and planned conversations in general have the potential to be huge time-wasters, not least due to the collateral damage they cause by interrupting and slowing down your work before and after the actual meeting.

As such, substantial effort should be made to avoid or to limit travel and meetings. Similarly, if you have to have a meeting, make sure you've got ample boring or simple work to do before or after it so that you can use 'structured procrastination' to your advantage.

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I don't update the "productivity" topic you see to the right as often as I thought I would. As I wrote three months ago, in my most recent "productivity" post (about "batch processing"):

[L]ike Merlin Mann, after an extensive time following the productivity genre/industry in details, I have generally soured on the relentless gadgetry, listmaking, fickleness and obsessiveness of most productivity websites and communities ...

That's not to say studying productivity is a waste of time. Far from it; Benjamin Franklin did it, and look how productive he was.

Maira Kalman, who authors a whimsical biography blog at the New York Times, had a recent piece on Ben, including this fascinating scan from his Almanac:

But how does one arrange that "work" to enhance productivity?

I'm fond of establishing for each day at least one "Most Important Task," a task (or tasks) you absolutely must get done today. Like Zen Habits says, you should probably do your MIT first thing in the morning.

But not all MITs are the same. Some MITs involve mindless, repetitive tasks. Some involve casual conversations or status updates. Some involve reviewing materials to get a sense of them.

Some MITs, however, require real clarity, precision and concentration, like drafting briefs or preparing for depositions. For those, an important observation:

Professional writers spend most days of their adult lives writing. For those among them who specialize on long form non-fiction, their writing is not that different from the types of research papers that plague college students. Assuming that these writers do not want to spend most of the days of their adult lives hating what they are doing, it stands to reason that, over time, they have figured the least painful possible way to schedule a large amount of writing.

With this in mind, I dug up interviews with [ten] masters of long form non-fiction ...

I went through each interview extracting any discussions about the writer’s habits. ...

Nine out of ten writers discussed when during the day they write. All nine worked in the morning. Four also worked during the afternoon. Three worked during night. Only one worked in all three times. Several writers described the afternoon as a mental dead time useful only for exercising and, maybe, editing. ...

Five out of the ten writers provided a specific start time. The latest was 8:30 am. Four other writers who didn’t give a specific time said, in so many words, “in the morning.” No writer described starting their work in the afternoon or evening.

And it's as simple as that: divide up your work by doing the tasks that require the most thought in the morning. Save the calls, meetings and document review for the afternoon.

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There is no shortage of productivity advice on the internet. Notable examples include Getting Things Done, 43 Folders (inventor of The Hipster PDA) and Zen Habits, and David Seah (inventor of  The Printable CEO).

Truth is, most of these systems are notoriously difficult to fully implement and, like Merlin Mann, after an extensive time following the productivity genre/industry in details, I have generally soured on the relentless gadgetry, listmaking, fickleness and obsessiveness of most productivity websites and communities, and so don't closely follow many of those blogs anymore. (Let me craft a specific exception for Lifehacker, which never claimed to offer readers a “system” but rather a digest of tools and possibilities.)

That said, the productivity industry has a lot to offer, and the odds are good that most readers will find something on these websites which they can integrate into their life for increased efficiency and decreased stress. One idea I’ve found useful is clustering similar tasks together, a.k.a. "batch processing."

Research has confirmed that multitasking does not work, and that the time it takes to shift mental gears between tasks causes multitasking workers to be less productive on the whole. It is easy to verify this finding empirically in the legal world: next time you are deep into a brief, jump over to discovery requests in another case, and note how long it takes for that stunned and confused feeling to go away.

The “mental gears” analogy can be extended to other circumstances, too, and most office workers feel a need to “warm up” when they begin work before they can be the most productive, hence the ubiquity of caffeine and the idealized Dunkin' Donuts world referenced in the video above, which is not too far from the truth.

Thus, many productivity gurus have recommended clustering tasks together and doing them in succession, as well as breaking up large tasks into multiple chunks each of which can be completed without interruption by another task.

The problem for lawyers is that the reality of law practice strongly encourages living by the calendar. The impulse is to adopt “first in, first out” system of completing tasks, with exceptions made for urgent matters.

For example, if in the past week four motions, six discovery requests, and ten phone calls came in, and in the next week a complaint and two dispositive motions are due, then the natural inclination for the lawyer is to arrange these tasks in the order they are due, making an effort to fit in other matters that should, but do not need, be done within that same time frame.

The end result is thus an assault from all directions, leading to the managed chaos present at most law firms and the much-lamented feeling of constantly “putting out fires.”

Nothing will ever make that feeling go away (you knew what the job entailed when you signed up), but it can be reduced through better practice management.

Don’t let the calendar determine how you schedule your work. Instead, take the little bit of time to schedule tasks so that you perform similar tasks at the same time, thereby reducing the loss of productivity due to switching mental gears.

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Craig Ball tells it how it is:

Ambling along the back roads of listservs and blogs, I often come upon a flea-bitten claim that, "Top notch computer forensic examiners have special tools and techniques enabling them to recover overwritten data from a wiped hard drive so long as the drive was wiped less than 3 or 7 or 35 times."

Nonsense!

...

You only need one complete pass to eviscerate the data (unless your work requires slavish compliance with obsolete parts of Department of Defense Directive 5220.22-M and you make two more passes for good measure).

No tool and no technique extant today can recover overwritten data on 21st century hard drives. Nada. Zip. Zilch.

Hopefully he'll do similar column on encryption which, despite what you see on television, is safe and effective so long as you stick to the public algorithms (like AES, Serpent, Twofish, or Blowfish) implemented in an open-source platform like TrueCrypt. Everything else (i.e., closed or proprietary systems) should be presumed snake oil.

Fact is, data breaches generally occur not through esoteric means like unwiping drives or breaking encryption, but through ordinary oversights like human breach (inadvertant or intentional) or failure to delete properly (like the failure to wipe a hard drive, or failure to wipe backups and copies retained by other users).

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A VC (a.k.a. Fred Wilson, a venture capitalist and principal of Union Square Ventures), commenting on a WSJ story, makes a simple, but powerful point about many of the tech startup companies floating around:

As Chris said in his WSJ piece, Facebook has been widely derided for the low CPMs it generates (pennies in Chris' words). But instead of deriding the revenues that Facebook is generating, maybe we should be in awe of a $350mm revenue stream coming from a company that produces no content of its own. Why does Facebook need 1000 employees? Why does it need to spend $300mm per year?

...

The web can create incredibly high operating margin businesses. Craigslist has an operating margin of 90%. Google's keyword business has an operating margin north of 60% (based on net revenues) and possibly higher. Could Facebook and Digg copy those models and create a lot of value on revenue numbers that many think are pitifully small? I think so.

...

I think that's an important part of the economics of the web that are left out of most discussions of Internet business models. Yes, we are turning analog dollars into digital pennies in many cases. But we are also doing the same thing on the cost side, maybe even more so. And I think that "operating leverage" is going to create a lot of value.

It's true for every business except for the hourly-billing law firm: reducing costs improves profit just as well as increasing revenue.

In the hourly-billing law firm, "costs" take on a much more narrow form than in other businesses, since the bulk of them are charged directly to the client, often at a premium. In an hourly-billing law firm, "cost" on the firm's bottom line usually only represents the money spent keeping the office open -- e.g., staff salaries, rent and insurance -- and not the money spent actually doing the work, like copying charges, filing fees, and, most importantly, the time spent on the task at hand.

Worse, since these costs, particularly the cost of attorney time, are charged to the client, they actually show up as revenue on the firm's balance sheet.

Reducing such costs is effectively the responsibility of the client, who is not in any position to know how to reduce them or to improve productivity. The end result is a system that encourages waste and everyone complains about, just as behavioral economics would suggest.

But there's a hidden problem to this system: the billable hour imposes boundaries on the degree to which lawyers' profits can be improved by reducing costs.

Bruce MacEwen at Adam Smith Esq. caught this same critical point in response to a NYTimes article ("Billable Hours Giving Ground at Law Firms") talking with Evan Chesler, Presiding Partner at Cravath, about the (long-predicted) demise of the billable hour:

Ultimately, it limits law firms' revenue. (Clients--you can skip this paragraph.) Each of the variables that goes into revenue under the billable hour model has intrinsic limits: Rates, hours, realization, and leverage.

Exactly right, but I wouldn't limit it to just "revenue" -- the billable hour limits profits as well.

Since I generally work on a contingent fee, it's easy for me to improve profits by reducing costs: I find ways to improve productivity. It's why I use digital dictation and voice recognition software, and why I scan everything and use document management. Because that's how I work faster, so I can both take on more cases and devote more time to each case to improve my results.

That equation does not exist in the hourly-billing firm. A lawyer who, say, comes up with a faster way to get briefs in order is rewarded with marginally less work. Sure, there is a supposed economic incentive towards this improve productivity by making clients happier, presumably enabling the lawyer to increase rates in the future, but that's not how it works in practice, particularly not at big law firms where it is exceedingly unlikely the client will even recognize minor improvements in productivity.

And that's where Evan Chesler is going: his clients are tired of him increasing hourly rates, while he and his associates are tired of increasing partner-to-associate leverage or associate hours. So he wants to stop looking at the top number -- revenue -- and look a line down to costs.

That's the new frontier driving the demise of the billable hour: alternative fee arrangements enable lawyers to bill clients the same (possibly less!) while taking home more because they're working faster. A win-win.

 

After drafting the above, I saw that Patrick J. Lamb had unethically and irresponsibly stolen my idea the day before I had even published it:

If a firm pays associates (or advances them) based on work quality and hours, associates will be committing career suicide by working more efficiently.  (See here for an example.)  If the firm doesn't reward associates for performing "good enough work efficiently" when that kind of work is all that is required, how can a client have any comfort that the fee proposal reflects the cost savings that such an approach generates?

This telepathic piracy will not be tolerated!

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Kottke.org links us to a thrilling moment in the early weeks of a videogame startup company:

In the main engineering room, there was a whoop and cry of success.

Our company financial controller and acting HR lady, Jen, came in to see what incredible things the engineers and artists had come up with. Everyone was staring at a television set hooked up to a development box for the Sony Playstation. There, on the screen, against a single-color background, was a black triangle.

“It’s a black triangle,” she said in an amused but sarcastic voice. One of the engine programmers tried to explain, but she shook her head and went back to her office. I could almost hear her thoughts… “We’ve got ten months to deliver two games to Sony, and they are cheering over a black triangle? THAT took them nearly a month to develop?”

Of course, it was no ordinary black triangle:

It wasn’t just that we’d managed to get a triangle onto the screen. That could be done in about a day. It was the journey the triangle had taken to get up on the screen. It had passed through our new modeling tools, through two different intermediate converter programs, had been loaded up as a complete database, and been rendered through a fairly complex scene hierarchy, fully textured and lit (though there were no lights, so the triangle came out looking black). The black triangle demonstrated that the foundation was finally complete – the core of a fairly complex system was completed, and we were now ready to put it to work doing cool stuff.

Sometimes lawyers just hold people's hands. Criminal defense lawyers sometimes walk the guilty through to a fair plea. Corporate lawyers sometimes translate a client's phone call and napkin scribblings on a done deal into better formatting. Estate lawyers sometimes change a few lines about a piano and a car and execute the will again.

For that, draw a triangle on the screen.

Other times, lawyers solve problems. As a trial lawyer, I spent a lot more time solving problems than holding hands.

Drawing a triangle on a screen rarely solves problems. Problem-solving requires most of the work be done before you see anything tangible at all. Here's how the videogame startup described it:

Afterwards, we came to refer to certain types of accomplishments as “black triangles.” These are important accomplishments that take a lot of effort to achieve, but upon completion you don’t have much to show for it – only that more work can now proceed. It takes someone who really knows the guts of what you are doing to appreciate a black triangle.

Exactly right. Not too long ago, I was dozens of hours deep into a complicated memo going out to a business client paying by the hour. The memo was sprawling all over the place, reaching well beyond my initial task.

Then I deleted everything and started again.

Billed every penny, too. Why?

Because I needed that time. Because the matter was very important to my client, who didn't want me to draw a black triangle. They wanted me to solve the problem. A couple dozen hours into it, I had finally fought long enough with the whole universe of issues to realized how to line up all the work on the backend to create the black triangle the right way.

A black triangle I could "put to work doing cool stuff." A black triangle that would still look like a black triangle after going through business and negotiations and lawsuits and trials and appeals.

The client loved the black triangle and, better yet, loved how low my bills were after that as the black triangle held up under scrutiny. No surprises down the road, no need to throw another a couple dozen more hours at it.

Trials, depositions and briefs are problems just waiting to be solved. Get the black triangle working before you go in and you'll be amazed how "lucky" you get.

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Tired of your current software? Check out Lifehacker's "Most Underhyped Apps of 2008," part of a whole bunch of great Best of 2008 posts worth checking out for anyone who wants to get the most out of their technology.

Back to the apps, I'm a big fan of Picasa, and I wish it was available for the Mac so I could ditch iPhoto.

VLC is the only audio/video program I've ever used that just plain worked. No frills, no complications.

It's not on this list but the big stunner to me this year is Google's voice and video chat, which blows the doors off every other videoconference software I've ever used, including the insanely expensive dedicated setups used by court reporting services. Simple and effective.

 

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I'm taking the Canadian legal press by force:

...

Productivity is, of course, the main attraction. But litigator Maxwell Kennerly discourages people from using traditional measures of productivity to evaluate these tools.

“If you simply ran a stopwatch and compared how long it took to dictate and correct a document versus simply typing it, voice recognition doesn’t seem much faster and, indeed, is sometimes slower,” wrote Kennerly of the Philadelphia, Pa.-based, Beasley Firm LLC in an e-mail. “The critical difference is fatigue. After I type a document, I usually feel tired and unwilling to move on to my next task. Voice recognition software dramatically reduces that fatigue.

“The difference is often greatest at the end of the day. Instead of leaving your office with pain in your hands, wrists, and forearms, you leave feeling productive and ready to go back the next day.”

...

Kennerly added the following advice: “For improving performance in daily use, the question is not if you can get 100 per cent accuracy, because you usually will not,” he wrote. “But rather if you can adapt to checking and correcting the words on the page as they appear, which you normally do not do when typing.

“For me, adaptation took about a week of frustration, after which I fell into a groove,” he said.

Kennerly’s experience led him to the following conclusion: “Voice recognition is not for the computer illiterate,” he wrote. “You need some computer savvy to use it effectively, since your performance depends on your ability to quickly detect and correct errors, your ability to enable the more robust features of the program, and most importantly, your general comfort level with technology.”

See the linked article by Luigi Benetton at The Lawyers Weekly from more.

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Over at the wonderful gCaptain blog:

While traveling to destinations around the world my setup is a black macbook (however, due to an unfortunate incident involving wine it is now the new macbook) and my iPhone. I tend towards lengthy email replies when using the Macbook so I much prefer the iPhone to make them short and quick.

On the ship my primary computer is a windows box which I need for my day job. Because of restricted permissions I rely heavily on a Portable Application Suite I launch from my waterproof USB drive and VNC to access my office computer. 

 

...

I work a schedule of 3 weeks at work and 3 weeks home so I get 6 months vacation per year. To facilitate this each position on the ship is filled by two people, the person on and the person off. This is nice because while at home my relief answers all emails, phone calls, ect., leaving me 100% disconnected from work. But regardless of where in the world my ship is located on the globe I must fly to it every 3 weeks. Staying connected on the road is important. To accomplish this I have set-up a custom SSH tunnel solution that I use with Apple Remote Desktop to connect back to my office network. I also have setup automatic back-ups with the Amazon S3 based app JungleDisk and use Transmit to retrieve my files. Storage is important while traveling  so I cloned my MacBook‚ hard drive using SuperDuper and replaced it with a 250gb laptop hard drive.

More at the site, including his favorite apps -- a list very similar to my own. E.g., TrueCrypt is the way to secure files.

In fact, his Mac-travel, PC-work, dual-monitor & setup is quite familiar to me, though I use 37signal's Backpack for GTD / task management, plus digital dictation and voice recognition given the volume of paperwork I create. I'm also content with FreeMind over Mind Manager for mind mapping.

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Carolyn Elefant kicks off a discussion on "The Deterioration of Legal Writing," beginning with a Financial Week story, concluding:

While I believe that both factors -- the informality of e-mail and lack of quality teaching -- have contributed to the decline of legal writing skills today, I think the main problem is  the easy availability of low-cost, computerized legal research tools. These days, both students and lawyers can gorge on a glut of cheap reference sources, from today's less expensive LexisNexis and Westlaw, to tools like Casemaker or Versuslaw, to Google and other Internet search engines. Consequently, legal research has devolved into an exercise in "piling on", with lawyers adding cases and quotes merely to show strength through quantity of cases rather than quality.  At the end of the day, with so many resources available, legal analysis is suffering, and as a result, so too is the quality of legal writing, which relies on the quality of the underlying analysis for its impact and effectiveness. 

Evan Schaeffer chimes in with links to many of his great legal writing posts.

I had two "legal writing" classes in law school. Both were terrible; I encountered one teacher later who said she was glad to have moved back to consulting because it was "more funner" than teaching.

I'm not kidding.

Two points.

First, I challenge the notion that today's law students write any worse than their predecessors. It may be true, but I have seen no objective evidence of that. Complaints about writing ability are common for all employers, and complaints about the upcoming generation are as old as written history. Take this complaint:

On the matter of overwork they are particularly stern. They want to work hard, but not too hard; the good, equable life is paramount and they see no conflict between enjoying it and getting ahead. The usual top executive, they believe, works much too hard, and there are few subjects upon which they will discourse more emphatically than the folly of elders who have a single-minded devotion to work. Is it, they ask, really necessary any more? Or, for that matter, moral?

....Out of necessity, then, as well as natural desire, the wise young man is going to enjoy himself — plenty of time with the kids, some good hobbies, and later on he'll certainly go for more reading and music and stuff like that. He will, in sum, be the apotheosis of the well-rounded man: obtrusive in no particular, excessive in no zeal.

That's from 1956; Kevin Drum dug it up in response to an article just posted that was virtually identical.

Second, while great legal writing requires a career-long dedication to excellence, not-bad legal writing just requires keeping in mind a couple points:

1. There may be rules for the formatting of legal arguments, but there are no rules for the content — do not force the content of your writing into an artificial form.
    
2. Remember and use the twenty-odd years of writing education that preceded law school. Write sentences in which nouns perform specific actions upon direct objects. Use topic headings and thesis sentences and appropriate paragraph divisions. Present information in a logical form. Read what you wrote aloud; does it sound confusing? If so, then it's confusing to read, too.
    
3. The very worst examples of legal writing are the edits of cases in law school textbooks. Judges usually do not write opinions with frequent leaps in logic, sentence fragments, and the generous use of the ellipsis.
    
4. The second worst examples of legal writing are Supreme Court opinions, which are the product of a delicate compromise amongst multiple Justices and which are deliberately limited in scope so as not to exceed the actual holding.
    
5. The third worst examples of legal writing are law review articles, which must conform to multiple literary conventions that have nothing to do with ease-of-reading or persuasion.
    
6. The best examples of legal writing that are easily accessible are trial court and intermediate appellate court opinions. These opinion state facts and then apply them to law, with little interference (at least apparent on the face of the opinion) from politics or compromise or convention.

In short, writing not-bad requires reading a few short books on writing, like Strunk & White's Elements of Style and Joseph M. Williams' Style, then reviewing some basic court opinions, and then applying the same principles to your own work.

Finally, never be afraid to disregard your writing instructor's advice; odds are they're looking to move on to something "more funner" anyway.

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Love or hate his political leanings these days, the man is very prolific and influential, and his early work is so impressive as to be lauded even by his harshest critics. Here's a great introduction to his work, if you're so inclined.

He wrote, a while back, "How I Work," with four tenents that work just as well for lawyers as they do economists:

Here are the rules:

1. Listen to the Gentiles

2. Question the question

3. Dare to be silly

4. Simplify, simplify

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Enrico Schaefer (a.k.a. The Greatest American Lawyer) has an article in Law Technology News about digital dictation, with a number of resources and products to check out.

A good time to make one thing clear:

• Digital dictation is one of the easiest and most effective ways to make a litigation or trial practice more efficient.

Seriously. "But I'm a solo! I don't have a full-time secretary." Fine - get yourself a virtual assistant, a dictation transcription service, and/or a voice recognition program.

Big firm? Even less of an excuse.

You will use it immediately to review files, to shoot off letters, to prepare pleadings -- all at your pace, with the ability to change dictations instantly and insert speech into the middle of a recording.

Really, the fact that he's publishing that article at all shows that some of you don't get it. Get with the program.

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A nice list of 11 free mind mapping applications was just posted at Lifehack.org.

If you've never heard of the concept, you can check out this thorough introduction by Dennis Kennedy.

Personally, I find that if I'm dealing with a lot of issues at once -- as is frequently the case in business litigation, multi-defendant personal injury cases, or cases involving a lot of documents -- there are few better ways to get everything in your brain down onto paper in a coherent form.

There are only really two secrets: 

1. Mind mapping requires too much of an investment of time to use all the time, so save it for when you start having trouble juggling issues in your head; and,
2. Don't worry about making it perfect. A perfect mindmap is a bad thing, as it usually means you've missed something.

The end result should be coherent enough to help you organize your thoughts but flexible enough that it doesn't hinder those same thoughts by forcing a rigid structure on them.

The first time you make it work you'll wonder how you ever lived without it.

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"Schiess's basic document design for lawyers" at Legalwriting.net.

Although I agree in principle, I don't think it works in practice.

For example, I don't think it is practical to use more than one font in a given document, since too many readers will not expect it and will be momentarily confused when they see it, making skimming harder, not easier.

The same goes for using hyphenation with the justification of text. If you are not expecting that, it takes a minute for your brain to connect the single word split across the end of one line and the beginning of another.

By and large, if you follow Schiess' advice, you'll end up with work that looks a lot like a formal appellate court opinion, with a professional appearance that rewards speedreaders (particularly when you use wide margins and single spacing). Problem is, while lawyers (especially appellate lawyers) may be used to reading that, judges themselves are not -- they are used to reading what lawyers submit to them, which usually defaults to Times New Roman 12-point, double spacing, full justification without hyphens. Most of us are stuck only making subtle changes to that framework.

As an aside: I completely agree with underlining, italics and boldface. I particularly dislike underlining case names, which causes the eye to focus on a bunch of irrelevant proper nouns in the citation rather than the real focus of the document, which is the argument presented. Yet, very few judges expect bold in briefs and many believe that case names must be underlined. So, without a formal order (most local rules require only 12-point font and double spacing), we carry on...

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Most attorneys I know keep a "legal research" file. As they have continued on their careers, they have come across numerous issues that took a considerable amount of time to research. After spending that time, in hopes of increasing productivity, the attorneys then dump the core parts of the research into a really long Microsoft Word file (or a really large folder or finder).

I don't. Why? Because of the Brontosaurus.

There is no such dinosaur as a Brontosaurus. The term arose from a mistaken identification of fossils in 1877, later generally corrected among paleontologists in 1903. The "Brontosaurus" was an apatosaurus skeleton that a paleontologist mistakenly associated with a camarasaurus skull.

Surely everyone knows this old, obvious, easily-confirmed fact? WIRED is a tech-savvy, research-friendly magazine. In April 2006, it published "Bringing back the Brontosaurus," an article about reconstructing animals via their genes, without bothering to note the distinction.

Why? Most likely because the author learned it as a "brontosaurus," as did his colleagues. A simple Google search would have revealed the error.

And that's why I don't keep a legal research file: it'll have something wrong with it. Maybe you put it in wrong, maybe you took it out of context, maybe the cases have been overturned, or maybe you messed up the first time around, too. I've always lost more time relying on a "research" file than I've gained.

Moreover, some of my best arguments come from reading recent court opinions, watching as a court grapples with an issue either similar or analogous to my own. The law is your tool - why let it go dull?

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Most everything you need to know to be a Google, Windows, Mac and Firefox professional. Nice.

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Bruce MacEwen, great as ever, on assessing the quality of legal representation in the general counsel / big firm context:

On a 1 to 5 score, from unacceptable through mediocre, good, and very good to excellent, the criteria [for evaluating all lawyers a company uses] are:

• Understood client's goals
• Expertise
• Efficiency
• Responsiveness
• Predictive accuracy (about budget and results); and
• Effectiveness.

Then there is the uber-question:  "Would you recommend that we use this attorney/firm for similar work in the future?"

Really, what more do you need to know to assess performance? Any more 'detail' would be an illusion -- legal representation is too complicated for more precision.

There's nothing limiting this approach to corporation / business legal representation. Use it in a personal injury practice. You can assess your own expertise, among others, and your effectiveness. Then, after a while, look at the data itself, not just your recollection that you've done well on, say, corporate negligence claims.

The beauty of self-assessments, usually real data, is that they never fail to reveal something surprising. Perhaps a particular type of case or a particular client makes you far less efficient -- what would happen if you stopping taking those cases and focused on your strengths?

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Lifehacker.com provides Twitter Users Worth Following.

I don't twitter, but some of those look just intriguing enough... like tinybuddha, which has recently twittered, inter alia:

"Do not seek to follow in the footsteps of the men of old; seek what they sought." ~Basho

"Our greatest glory is not in never falling, but in getting up every time we do." ~Confucius

"I feel the greatest gift we can give to anybody is the gift of our honest self." ~Mr. (Fred) Rogers

"Time you enjoy wasting, was not wasted." -John Lennon

Lovely. Good thing twitter also provides RSS feeds for us non-twitterers.

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How many e-mails do you have in your inbox? I was doing great, then had the five-week trial, and as of this morning it was 3682.

Time to re-implement Inbox Zero.

Really, if you do one thing today, get your DMZ going:

1. Open your email program and create a new folder called “DMZ”
2. Go to your email inbox and Select All
   • You might alternatively choose all email older than n days
3. Drag those emails from your inbox into the DMZ folder
4. Go, and sin no more.

I just did it again. Like a warm bath after a triathlon.

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Legalwriting.net is unhappy with this advice:

“Do not ever for the second time give your senior a piece of writing with a typo or a grammatical mistake,” says Berry. “I will take it once and I will tell the junior my set speech.” But if it happens again? Well, find out for yourself.

We can all agree typos are bad and, in some circumstances, unprofessional.

But Berry gives no advice whatsoever for how to accomplish that; he just threatens associates with their livelihoods and careers.

Was the client the focus of that advice? Do they really want to pay lawyers $250-$500 an hour to obsess in fear over typos?  Does that do anything more than rack up billable hours?

How about some more client-centric thinking: let's encourage and reward peer-review of documents before they go out. Would Berry be happy if an associate sent a "final" draft to an associate in a completely different department, whose brain is clean of any preconceived ideas about the document, for a review? That would sniff out typos promptly; it would probably also get both associates in trouble.

Does that advance the client's interests?

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At Concurring Opinions, The Truth about Multitasking:

I've been of two minds about multitasking for some time. But growing evidence is suggesting that the very concept is a myth:

Dr. Edward Hallowell, a Massachusetts-based psychiatrist who specializes in the treatment of attention deficit/hyperactivity disorder and has written a book with the self-explanatory title CrazyBusy, has been offering therapies to combat extreme multitasking for years; in his book he calls multitasking a “mythical activity in which people believe they can perform two or more tasks simultaneously.” In a 2005 article, he described a new condition, “Attention Deficit Trait,” which he claims is rampant in the business world. ADT is “purely a response to the hyperkinetic environment in which we live,” writes Hallowell, and its hallmark symptoms mimic those of ADD. “Never in history has the human brain been asked to track so many data points,” Hallowell argues, and this challenge “can be controlled only by creatively engineering one’s environment and one’s emotional and physical health.” Limiting multitasking is essential.

Walter Kirn concurs: "Neuroscience is confirming what we all suspect: Multitasking is dumbing us down and driving us crazy."

I'm fond of the "Getting Things Done" method and its permutations. Get "stuff" out of your head into a simple form on paper/computer. Then do one thing at a time, and try to do it until it's done.

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Via How Appealing:

The Boston Globe today contains an article that begins, "The Wilmer Hale law firm, one of the largest and most respected in Boston, has a reputation for championing unpopular causes: President Nixon during impeachment. The US Army during the McCarthy hearings. Even defending serial killer Ted Bundy. But the firm's past efforts pale in comparison with the free legal assistance that it has given to six Algerian terrorist suspects held without charge at Guantanamo Bay. Since 2004, lawyers with the firm have provided 35,448 billable hours of legal help, worth an estimated $17 million, making this case the largest pro bono effort in the 90-year history of the firm."

First, good for them. Injustice anywhere is a threat to justice everywhere.

Moreover, it looks like they used a particularly honest method for calculating the lost services. Last year Wilmer Hale's revenue per lawyer was $970,722; presuming 2,000 billable hours per lawyer, that's an effective rate of $485/hour.

Doing the math on their habeas estimate (35,448 hours = $17 million) puts them at $480/hour.

That's so close I imagine it's the source of their number, which means that they're smart enough to do internal calculations based on actual, realized revenue rather than the sticker price for hourly billing.

Interestingly, they admit the business benefits of the representation:

Despite the huge investment, Oleskey says that the controversial case is not bad for business. "We think our [paying] clients feel that if we can vigorously represent people in Guantanamo . . . we would probably do a pretty good job representing them," he said.

I'm not criticizing them -- I think it's very forward-looking for a law firm to look beyond the balance sheet to the bigger picture. If they can do justice at the same time, it's a win-win.

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Via Boing Boing:

The researchers compared sleeping in for 90 minutes each morning to taking a 20-minute nap at 2:30 p.m. or taking 150 milligrams of caffeine (equivalent to about two cups of coffee) at 2:00 p.m...

When the volunteers did nothing, they fell asleep within nine minutes on average when tested at 3:30 in the afternoon. Sleeping late kept people awake only a minute longer on average than did doing nothing. Caffeine worked better, keeping people awake for about 12 minutes longer on average.

But nothing beat a nap. After a 20-minute nap, people nearly doubled the amount of time it took to fall asleep when tested later in the afternoon, indicating that they were no longer sleepy. None of the measures impaired people’s ability to fall asleep at night.

That's been my experience, too. You can go with low levels of sleep for a long time if you take 20 minute naps during the day.

When it comes to the low levels of sleep, my secret for waking up is taking acetaminophen the night before. It's a lot easier to talk yourself out of bed if you're not also in pain.

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An exceptionally useful weekly review post at Home Officer Warrior.

My favorite is the link to the 30 VoIP ideas.

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At Law Technology Today: Talking to Yourself: Is Speech Recognition Ready for Prime Time?

Apparently not, as this article is only available as an audio podcast, not as written text.

I think speech recognition is more than ready for prime time. In fact, more than half of the content you see here was dictated by the use of Dragon Naturally Speaking, the program they reference.

By my experience, the program is about 90 to 95% accurate, which is pretty good, except that the mistakes are astonishingly frustrating when they occur, creating the impression that dictation is no faster than merely typing it. But let there be no mistake: the proper use of speech recognition is unambiguously faster than any method of typing yet devised.

Even with those mistakes, I can go on for pages and pages and pages without end, writing and revising and -- best of all -- seeing exactly what I am working with, a luxury unavailable to those who dictate for later transcription by a secretary or service. Yet, I rarely become tired of writing. In contrast, when I type, I can feel myself slowly becoming depressed as I think of each new paragraph that I will have to type, as my hands and fingers start to recoil and my breathing becomes labored. If you've typed a lot, you know what I mean -- it's exhausting!

Frankly, the question is rarely whether a particular technology is ready for prime time. The questions are: can you see the strengths of the new technology, and can you adapt to leverage those strengths?

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Some excellent resources:

• Mashable.com's "5000+ Resources to Do Just About Anything Online"
• The "Hack Attack" category at Lifehacker
• "Better than Batman's Belt: Our Favorite Utilities" at Law Technology Today
• The Practice's Top 25
• Home Office Lawyer's "Business Applications for the Mac," "10 Must-Have Apps for the Mac Using Solo Practitioner," and "Programs to Help the Mac Lawyer be More Productive," itself a response to South Carolina Trial Law Blog's Programs to Help Lawyers be More Productive.

I'll post my own list and method later. If you suspect you're not living up to the productivity computers can offer, you're right. You could do worse than reading those links carefully and trying something new.

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If you didn't catch it elsewhere, the WSJ Law Blog picks up Romney's "lawyer" quote from the debates:

During Tuesday’s Republican Presidential debate, Romney was asked whether he’d have to ask Congress for authorization to take military action against Iran. His response, says the WSJ editorial board provided a “revealing — and dispiriting” glimpse into “modern political life.” Said Romney:

 “You sit down with your attorneys and tell you what you have to do. But obviously the President of the United States has to do what’s in the best interest of the United States to protect against a potential threat. The President did that as he was planning on moving into Iraq and received the authorization of Congress.”

Follow-up question: Did President Bush need such authorization? Romney: “You know, we’re going to let the lawyers sort out what he needed to do and what he didn’t need to do.” Egad, says the WSJ:

Frankly, I'm surprised Romney had such a reasonable answer, given the needs of his base to hear chest-thumping. The Constitution clearly requires Congress' authorization prior to launching a war. The real question is if a given act is war, police action, or one of the exceptions under the War Powers Act. It's horrifying to think that a President would ever launch any military action without extensive consultation with Congress or, at the very least, his own staff.

For our purposes the real meat here is: be wary of calling yourself a "lawyer" or having clients or anyone else think of you as just a "lawyer." The term frequently connotates a hired gun who greases the wheels for wrongful conduct. Other candidates got away with "advisors" and "consult Congress," which are exactly the same answer.
 

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