Paper is so 20th Century — or so it can appear when looking around at all the astonishing tools and applications now used in the practice of law.
To be sure, all these applications make life easier. Paralegals no longer need to photocopy rooms full of paper, the better for lawyers to pepper them with inscrutable sticky notes and highlighter markings. An associate can slide a notebook computer into a backpack or slip a thumb drive into a pocket rather than heft wheeled carts stacked with banker boxes. And partners need no longer incur the wrath of typists wrangling sheets of carbon and bottles of white paint to make edits. One can simply cut, paste, delete and rewrite at will with electrons on a screen.
And yet, easier does not always mean better. Those ones and zeros downloaded from iTunes are not always better than grooves mechanically etched in black vinyl, rotated at 33 1/3 revolutions per minute and vibrated with a stylus.
Notwithstanding the remarkable ease of technology, there might be some ways that technology holds lawyers back. Maybe it is the Google effect. Is Google making people stupid, fidgety and unable to focus, like Nicholas Carr wondered in the pages of The Atlantic? Do we fail to adequately remember (or even think about) things we can instantly access via computer, as Columbia University researchers have posited? Or perhaps digital devices inhibit human beings from fully integrating our intuitive/creative and methodical minds, about which Daniel Kahneman writes in the recent best-seller, “Thinking, Fast and Slow.”
Whatever the reason, if a task calls for creativity, deep thinking or higher cognition, lawyers should consider going analog instead of going digital. It’s worth stepping away from the computer (maybe even away from the office altogether), grabbing a legal pad and making marks on emulsified wood fibers.
Two examples from my appellate practice might spark ideas for how going analog would be effective for you.
1. Create a how-to list. Obviously, Microsoft Outlook has a tool for keeping track of tasks that need to be done. But does it morph effectively as tasks become more or less important? Does it really connect the dots between tasks? Does it inspire creativity in how to perform tasks? Does it replace mediocre tasks with better ideas to solve the client’s problems?
Try this instead and see if you notice a difference in quality:
• At the beginning of the day, take 30 seconds or so to quiet the mind.
• Pick up a sheet of paper, and write down the names of the client matters you are working on — just the names. Spread the names out over the whole page, leaving space between them to fill in ideas or tasks later.
• Write down the names of the client matters in whatever random order they come to mind, because the mind really is not working randomly at all.
• Now, look at the list of matters and let the mind wander.
• As ideas arise, write down lists of things that need to be done under each matter name.
To be sure, the matters and tasks exist on an Outlook calendar. But going analog in this fashion, slowing down to think at the beginning of the day, creates much more than a to-do list in the computer. It creates a how-to list in the mind.
2. Puzzle out answers to the hard questions of oral argument. Oral argument preparation involves a significant number of tasks that might work better if done on paper rather than on the screen. To focus on just one of them, consider the process of identifying and answering the hard questions you should anticipate from the court.
This method probably seems stunted or overly simple, but try it the next time you are preparing for argument or for any type of persuasive presentation that requires connecting abstract ideas with concrete data.
• As with the how-to list, begin by quieting the mind. That is no small thing in the Internet age.
• Start by identifying what the hard questions are. Don’t worry about coming up with the answers to the hard questions; identify only the questions themselves.
• Write each question on the front of a large note card. But, as they say in the infomercials, don’t answer yet.
• Take the stack of question cards and start writing the answer on the reverse side.
• Write, quite literally, the exact words you might use if the court did not interrupt. Include precise citations to cases and to the record.
• If the answer to one question connects with the answer to another (and it will), physically pick up that card and make the connection.
• When the answer does not flow or a dead end appears, tear up the note card and start again on a new card.
This process does more than generate flash cards to study; the process of marking the cards has marked the mind. Something about the act of writing longhand, imagining exactly what to say and collecting the citations into the answer allows the brain to connect the dots in a way that typing an outline just won’t. Again, this probably seems pedantic, stunted, simple and boring, but don’t knock it until you try it.
The laptop and all its applications are amazing tools, but sometimes they are the wrong tools for the job. When a lawyer needs to rearrange the brain, make connections or jump outside the box to be creative, nothing suffices quite like a piece of paper and something that will leave a mark. Keep digital, of course. But go analog, too.