Law Technology News
January 2000
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Small & Home Office

E-mail: Not Always a Panacea for Small Firm Lawyers

Internet communication may be fast and efficient, but it's not completely painless or risk-free.

By Frederick Hertz.

BELIEVE ME, I love technology. I was one of the first lawyers around here to use a word processor; I currently own a cell phone, a Palm Pilot and a laptop. I appreciate that machines make my solo practice faster and cheaper.

I do much of my work in the San Francisco Bay Area's lesbian and gay communities. Many of my clients are using cutting-edge technology, and they frequently tell me that they appreciate my technology-friendly practice.

All that being said, I have some deep misgivings about my high-tech existence. This is because partly due to my personality -- I'm fundamentally a frugal and outcome-minded person. I hate to buy new products and I hate to devote any time learning about machines. I still use a 1995 Mac Performa and a 1996 laptop, and I never read those manuals. I signed onto AOL when it first hit the streets in 1996 and my e-mail address still hasn't changed. Why fix it if it ain't broke?

But of course, being both a technophile and a techno-skeptic, therefore, I worry a fair amount about this stuff. Not surprisingly, e-mail has generated many of my greatest excitements -- and some of my most frantic worries. Allow me to share with you some of my fears about relying on electronic communication, and along the way, offer some helpful remedies.

Disconnections

My most fundamental fear is being unconnected for an unacceptably long time, say, more than a few hours. This happened to me twice recently, and it was not fun.

The first crisis occurred when I tried to upgrade my Palm Pilot program and ran into some hidden incompatibilities with my computer's extensions - whatever they are. Suddenly I couldn't access my printer or my modem, as the computer kept asking for some kind of bit or byte that my four-year-old hardware just didn't have.

The answer? Keep the pager number of your computer troubleshooter close by, and be willing to pay to be rescued. As it turned out on that particular day, three hours and $200 later everything was fine. The offending programs were removed, my desktop was rebuilt, the modem software was re-booted and all systems were go. I'm able to access e-mail via any computer, using the Internet, and so should you.

Moral: Know how your suite-mate's computer works, get consent to use it in an emergency, and know your Internet e-mail access protocol.

A week later I arrived in New York for a series of meetings. I was hitting five cities in nine days, and since I was in the midst of negotiating settlements in two nasty same-sex dissolution's, I instructed everyone to communicate with me via e-mail. Imagine my panic when I arrived at the hotel at about 5 p.m. and turned on my laptop, and saw only a blank blue screen -- not even an unhappy face to welcome me to my MAC OS. Trying to stay calm, to my absolute astonishment, I located a repair shop less than a mile from my hotel. I hopped into a cab, took the elevator to the fourth floor, waited until my number was called, and listened as the friendly owner did a quick analysis: "It's probably your display power cable. Leave it here and we'll have it fixed by 9 a.m. tomorrow." She was right, and thank my lucky stars, my week was salvaged.

It was a good thing, as I'd arrived without anything on disk and without any my programs, not even AOL. Now I know better, and so should you.

Moral: When on the road, carry your basic programs and essential documents on a disk.

Then, if you aren't so lucky as to be a mile away from a repair specialist who works evenings, you can rent a replacement computer if something major goes awry.

Who's Got Mail?

My second variety of e-mail anxiety involves the delicate issue of confidentiality. Lawyers are trained to be compulsive on this subject, for good reason. You don't want your opponent or some stranger reading your confidential documents, nor does your client.

E-mail presents some special problems in this realm. In some settings and, depending on where the mail's being sent from and what kind of computer is being used, the message may be easily accessible to an outsider. Even if the message is legally protectible, actual disclosures can be devastating.

And it's not so clear where the boundaries of confidentiality lie with electronic messages. Whether you are in pre-trial strategizing, business acquisitions or deposition preparation, the message may or may not be deemed confidential. Who is sending it and who is getting it, and how many times it's been re-sent to someone else, all can affect the privileged character of the message.

Inadvertent loss of confidentiality is even more problematic. I read about an angry employee who sent her plan to steal trade secrets to her current boss rather than to her future employer, by hitting the wrong name on her address book. When last heard of she was facing serious jail time for felony secret-stealing.

I once sent out a settlement proposal via e-mail as an attached file, and I accidentally attached a draft which still had material from an earlier version copied from a different client's agreement. No harm was done and no one really cared, but this could have been a malpractice disaster.

Messages get forwarded to all sorts of people, resulting in the loss of privacy and creating all sorts of informational havoc.

Moral: Be careful and be cautious, and if the information is highly secretive or potentially devastating, consider not using e-mail as the means of transmission.

Faxes can also go astray, so when it's really a critical communication, I prefer face-to-face discussions or a letter delivered in a sealed envelope. Old fashioned, I know, but far less risky.

Instant Messages

My third arena of anxiety is the expectation of excessively speedy responses. In cyber-talk, an "instant message" is just that -- an electronic dialogue that happens in real time over the Internet, using vehicles such as America Online's "Instant Message" or "Instant Messenger" services, or comparable services offered by other companies.

But the same label might be applied to the increasingly accelerated expectations of our clients (and opposing and co-counsel). Spurred on dramatically by e-mail communication, same-day responses are no longer sufficient: my clients want same-hour answers! Lately I've been getting calls asking if I've gotten the e-mail sent an hour or two ago, and if so, why I haven't yet responded.

E-mail conversations can be fabulous. I recently commented on a series of settlement options with a client, and we communicated back and forth numerous times via e-mail. She laid out her approach to various issues and I would describe the probable outcomes on each issue.

The responsive writings were clear and focused, in a way that would have been hard to achieve in a voice conversation or in one long letter, and we each had a written record of our analysis. That's the good side of e-mail conversations.

On the other hand, when you are rushing to catch a plane and you are hunched over a laptop in a noisy airport lounge, typing out a response just after you've read the message, are you really going to do your best legal analysis? I doubt it.

The same goes for when you are plowing through 15 messages, half of them unwanted junk porn, and suddenly your client's desperate cry for assistance pops onto your screen. You are torn between wanting to wait until the following morning and your dutiful sense of obligation, and so you respond. ou hit the send button and then you wonder, was that really the right advice? Remember that AOL may choose to go down the very next minute, and so revising your advice may not be so easy to do, despite AOL's fantastic "unsend" feature.

The moral: It's is simple: Slow down, do your job right, and don't let the technology push you into a pace that is unwise.

I often remember what my second grade teacher said when I was first to turn in my assignment but got some of the simplest answers wrong: "Haste makes waste." By all means seize the benefits of today's technology, but at the same time, remember what I was told back then: work with as much haste as your technology allows, but be careful, lest you waste your legal talents on crash-prone hardware and misdirected e-mails.

Frederick hertz is a real estate attorney in Oakland, Calif. He's the author of Legal Affairs: Essential Advice for Same-Sex Couples (Owl Books, 1998).

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December 1999 Edition

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