The Law School Magazine  ·  Fall 2007 :

Increased Connectivity Leaves Questions Unanswered

By - Fall 2007
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It wasn’t so long ago that when clients needed something from their attorneys they would pick up the phone, leave a voicemail, send a fax, or, even, write a letter. Responses would occur as quickly as possible, but most often in the form of a well-vetted legal memorandum that arrived whenever the postman delivered the mail.

Obviously countless technological advances have changed that scenario drastically.  E-mail accelerated the process in the 1990s. And then remote e-mail access, larger capacity, and enhanced attachment capabilities bumped it up a notch.  But when e-mail can be at our fingertips continuously – no matter the time or the location – the changes can have far-reaching implications.

Clients expect a quicker response than what the mailman, and sometimes what the next day’s e-mails can provide. But all of this connectedness begs a number of questions: If an e-mail from a client lands in your Blackberry inbox at 9 p.m., do you respond?  What if the e-mail is from a partner at your firm or a valuable client?  Does your answer change if you spent the last few hours at happy hour?  What if you’re helping your child with homework?  If you do respond, do you provide actual legal advice, or just acknowledge receipt of the e-mail?  Do you bill the client for this service?

The answers to most of these questions remain unclear, but undoubtedly should be discussed by those businesses – such as law firms – that continually strive for a healthy balance between top-notch service and employees’ quality of life.

To Answer or Not to Answer

The Blackberry was introduced in 1999, and it was quickly praised as the miracle device for the on-the-go business person or traveler.  The device, which is jokingly referred to as “Crackberry” because of its users’ sometimes narcotic-like dependence, was later blamed for expanding society’s addiction to the Internet.

The question of Blackberry etiquette and protocol will vary from organization to organization and maybe even client to client.

“We are a service industry,” said Andrew Weaver ’02, a general litigation attorney at Cleary Gottlieb Steen & Hamilton in New York City.  “Our goal is to serve our clients, and it is usually in the best interest of our clients to respond quickly in some way.”

Weaver said that he carries his Blackberry with him most of the time – which gives him instant and wireless access to his work e-mail and the Internet.  The technology was not required at his firm just a few years ago, but it slowly progressed to a required accessory, he said.

“The Blackberry is a tool that I think – when it is used properly – can save a lot of time,” he said.  “When things are really busy and you have a lot on your plate you are more likely to be checking it frequently.  It frees you up when you are waiting around for a response to something.”

The potential for this little device to revolutionize the legal services industry is boundless.  While there used to be about 2,000 possible billable hours a year, with 24/7 Internet access, there is now over 5,800 (allowing eight hours off each day for sleeping).  And multi-tasking has also risen to a new high: e-mail while at your child’s soccer game, e-mail while at a lull in a deposition, e-mail between golf holes, e-mail when you cannot sleep at night, e-mail while you commute …

Is Anyone Really Listening?

While all this multi-tasking may be great for crammed schedules, it often leaves those around you wondering if you are really paying attention.  Clients may love the seemingly limitless access you provide, but they undoubtedly will not be thrilled to see you compulsively checking your e-mail during an in-person meeting.  Or to discover that half the people were busy tapping away during a conference call or in-firm meeting about their issue.  To circumvent these distractions, many organizations have implemented a “check-your-Blackberry-at-the-door” policy for important meetings.

The quality, tone, and rashness of these e-mails also call into question their effectiveness.  Responding on the fly can lead not only to mistakes, but hasty decisions, misinterpretations, and even e-mailing the wrong person by incorrectly punching a key in the address book.

Legal questions are also starting to surface as the line between voluntary 24/7 access and mandatory 24/7 access merge dangerously close.  While most Blackberry carriers fall into the exempt employee status as far as on-call and overtime pay go, the question of whether an exempt employee can be fired for not answering an e-mail that arrives after traditional work hours remains unanswered.  Courts have also found techies “driving while texting” guilty of reckless driving, and whether employers will be liable for those accidents, as well as thumb-related overuse injuries, remains to be seen.

And, then, of course, there’s your family.

Richard Jagacinski, a psychology professor at The Ohio State University and teacher of the class “Technology, Efficiency, and Happiness,” agrees that such technology has had radical effects on workers’ hours and environments.  Employees must set distinct priorities in their lives and carry those priorities over to their use of Blackberries, Jagacinski said.

“The question becomes what types of activities are you willing to have interrupted,” said Jagacinski, who admits that he purposefully avoids checking his work e-mail from his home.  “If you are having dinner with your family, or in the middle of your golf game, or while being intimate with a significant other, chances are you don’t want to be interrupted with work.”

But, Jagacinski explained, oftentimes when people are using their Blackberries, and even cell phones, they do not necessarily realize what it translates to for others around them.

“It basically tells the other people that you are with that they are less important than what you are working on,” he said.  “You’re telling them that they are a lower priority at least for the time being.”

Weaver denied being “addicted” to his Blackberry, but he did say that he was guilty of sometimes checking it frequently when in public with family or friends.  But, he said, most of the people that he hangs out with are in the same boat.

“I get harassed every once in a while when I’m checking it,” he said.  “But most people are pretty understanding.  It is starting to become the norm.”

 

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