Five Must-Reads for Graduates (And Everyone Else)

It is that time of year again, and if you are looking to give something really meaningful and worthwhile, consider one or more of the following:

1. This is Water: Some Thoughts, Delivered on a Significant Occasion, about Living a Compassionate Life.  The late David Foster Wallace delivered this commencement speech at Kenyon College in 2005.  In sum, exercising the choice of what you think about is essential in navigating the day-to-day where we live our lives.  And being attentive and mindful of what is right in front of you is necessary to overcome your inherent self-centered nature-- the real journey of a lifetime.
2. How Will You Measure Your Life? by Clayton Christensen, James Allworth, and Karen Dillon. This is important for anyone starting or planning a career.  It poses some very difficult questions, but aren't those the only ones worth wrestling with?
3. Toughness: Developing True Strength On and Off the Court, by Jay Bilas. This is an extraordinary thorough and insightful exploration what it takes to complete the missions you undertake.  And toughness is not what you think it is.  
4. Wherever I Wind Up: My Quest for Truth, Authenticity, and the Perfect Knuckleball, by R.A. Dickey.  Dickey has faced and overcome tremendous challenges, numerous setbacks, and professional and personal failures on his journey back to the Major Leagues.  This is not a book about baseball, but about confronting your demons, figuring out what really matters, and persevering- again and again and again.  If you think you know something about bravery and courage, read this.
5. The Willpower Instinct: How Self-Control Works, Why It Matters, and What You Can Do To Get More Of It by Kelly McGonigal.  Doing what matters is difficult, in part because our brains are wired to to want and seek something different.  McGonigal offers the most practical explanation I have read of why this is the case, as well as down-to-earth advice on how to train yourself in service of your real goals.  For my previous discussion of this book, click here. 

For a previous list of good reads, (including some of these), click here.
  

Every Lawyer is A Technologist: Take a Step Back to Take the First Step Forward

Quit Pointing Out What I Don't Know, and Tell Me Where to Start Learning 

The legal community is all atwitter (pun intended) about the effect of computer technologies (and other forces) on the way law is practiced.  You hear the use of terms like "revolution," "sea change," and "paradigm shift."  Some observers suggest that emerging technologies are throwing out not only the bathwater of the legal practice, but also the baby, the bathtub, and the plumbing.

For those attorneys not riding this wave, all the discussion of algorithms, ESI, Big Data, and the "urgent" need for change is disconcerting at best, and downright terrifying at worst.  Fear may be an effective motivator, but only if you know where you are going and what you are going to do.  Fear that creates only doubt (including the Fear of Missing Out or FOMO) results in paralysis (head in the sand), denial (it doesn't affect what I do), anonymous Internet comments (no explanation necessary), and/or substance abuse (likewise).

And lawyers often respond to fear in that quintessential American way:  by reflexively buying something (smartphone, tablet, software) in the hope it will address our anxieties and solve our problems.We buy without a thought to how the product or service will become a part of our existing practice, (or part of an existing network).  As a result, when we don't know what we want (or how we intend to use it), we end up with a lot we don't want (and don't use).

Let me suggest a different approach.  Forget computers for the time being.  They are a distraction (and not for the usual reasons).  Technology is not just computers and computer systems.  Technology is the application of knowledge for practical purposes (look it up).  Technology is the collection of tools we use now to solve problems for our clients. Lawyers use technology every day even if they never turn on a computer.

And no decision to buy shiny new tools (especially expensive ones) can take place without evaluating your current technology- nothing more than what you do and how you do it- and then considering if there are other ways to do it better.  In other words, 1) take stock of what you know, have and do; 2) consider how you might do those things more effectively, and then (and only then) 3) adopt the tools that will accomplish your goals.

We are talking about how to evolve and adapt by building on our current approaches to problem-solving, not by letting HAL ("File the motion, HAL"; "I'm sorry, Jack.  I can't do that.") take over our practices.  

What Do Lawyers Do?

Lawyers solve problems.  The reason clients hire attorneys is because they need assistance getting something or somewhere.  That "destination" may be the consummation of a business deal, creation of an entity, a favorable resolution to litigation, an estate plan, or a variety of other outcomes.

What Do Lawyers Use to Solve Problems?

Lawyers Solve Problems Using What They Know: Information and Legal Knowledge.  In tackling our client's problems, in the most fundamental sense we use and apply what we know.

One part of what attorneys know is the information we learn over the course of a particular matter.  We process, store, and present information in service of our clients.  We identify, seek, and exchange information in discovery. We take the facts we learn, discern how best to use them, and present them in an appropriate forum or context.    

Lawyers also combine information with legal knowledge.  We receive facts in one form and repackage them in the context of their legal significance. We cite and argue relevant law gleaned from cases, treatises, and other sources.  Pleadings, motions, and briefs are nothing but collections of information and legal knowledge. We present information and legal knowledge to a jury, judge, or appellate court.  Information and legal knowledge shape transactions, wills, trusts, and tax returns. We also store our legal knowledge somewhere (hopefully not just in our heads).

Lawyers Use Knowledge (Both Legal and Practical) To Manage Information.  In our representation and advocacy, lawyers already utilize various tools (all of which are forms of technology) to organize and and present information and convey legal knowledge: 

Processes/Procedures.  How we practice law is in large part a collection of processes.  A process is just a series of steps involved in preparing and presenting what we know.  The creation and preparation of any document is merely a process that applies knowledge to information.  Pleadings are drafted, reviewed, edited, filed, and served according to the requirements of various rules, standards, and practices.  Likewise, each attorney or firm performs many processes in the course of a day:  calendaring, conflict checks, file creation and maintenance, etc.  Getting a document into evidence is just a process, as is qualifying an expert.  Processes are accumulated knowledge  performed over and over again.

Policies.  Policies are (hopefully) written documents expressing your purposes and goals, and containing guidance about the means of implementing same.  Policies may protect the confidentiality of information as required by the Rules of Professional Responsibility, or ensure other applicable standards of conduct.  Effective policies include specific procedures and consider how the people in your organization will comply with (and ensure compliance with) same.    

People.  Clearly the creation, adoption, and implementation of procedures and policies require people.  A policy or procedure that is not communicated, understood, and implemented where appropriate throughout an organization is more commonly known as a "problem" or a "missed opportunity."

How Do You Currently Solve Problems and Manage Information and Knowledge?

In order to determine whether you need "new" tools to manage what you know (information and knowledge), you have to identify what information and knowledge you have, and how you currently manage these resources (processes, procedures, people). A great deal of this evaluation doesn't involve your computer system at all, but instead a review of work flow and office practices.  Put it this way, (and borrowing from Dennis Kennedy), you only need a sheet of paper to map out how you communicate and collaborate with your staff and other attorneys.  I guarantee that even such a seemingly basic analysis will show you ways to improve upon the way you share information and perform tasks.  Try it. 

What Can You Do Better, and What Tools Can Help You Do That?

Then, once you know what you have and how you currently use it, you can consider how you might collect, store, organize, search, share, and protect that information and knowledge (and perhaps other information and knowledge) more effectively.  The storage and search capabilities of computer systems undoubtedly offer advantages to lawyers.  However, only after analyzing your current information and knowledge processes and policies can you determine what you want and how you will use it.  Knowing your processes, policies, and people will put you in a better position to integrate computer technology into them. 

Computer technology is not the most useful information or knowledge solution (i.e. the best tool) in every situation. If taking notes on a legal pad continues to be the only way you will gather information, then that tool should not be removed from the toolbox.  But consider whether information gathered electronically might benefit you. Likewise, a practitioner is not well-served using a computer presentation at trial unless she has evaluated its effectiveness in communicating information to a judge and/or a jury.  And surely a review of the way you use email might spark some discussion about whether other methods of collaboration (and appropriate communication) exist and ought to be employed.  The point is to be aware of how you do it and how you might do it better. 

Conclusion- Build On What You Already Know and What You Currently Are Doing

Competence as a lawyer requires using the tools available to you.  You are already using many of those tools.  Identifying and understanding the way you use information and knowledge to solve problems will help show the way toward effective computer technology use.

The algorithms can wait.       

Remember (and Protect) the Important Stuff: Part Two- Eliminate Password Fatigue With LastPass

In a recent post, I discussed the dilemma facing anyone who does any significant amount of personal and professional business online:  safe and secure transactions require the use of strong, unique passwords, but keeping up with that much information can be difficult from a time and energy perspective.

My solution to this conundrum (it may be more of a conundrum than an actual dilemma) is to use a free product called LastPass.  After you have set up an account and chosen a password (yes, this is one password you have to remember), each time you visit a site and enter your login credentials, LastPass will remember that information, store it securely, and then automatically fill it in.  Another plus is that it works on all of your desktops, laptops, tablets, handhelds, and whatever the next cool thing you determine is necessary to own.

Also, LastPass will actually generate strong passwords for you, which is especially helpful if you have a history of using passwords like "123456" and the clever "password."

Some aspects of LastPass that sound nifty but that I have not used yet include its automatic form filling feature, and its vault allowing storage of all kinds of personal and business data (like for instance the PIN I forgot at the gas pump).

The best way to understand how LastPass works is to watch one of their very short videos.  I recommend either this one (What is LastPass?) or this one (Why Use LastPass?).

Fail, Feed, Focus, and Forgive- Lessons from The Willpower Instinct

Over the weekend I finished The Willpower Instinct: How Self-Control Works, Why It Matters, and What You Can Do To Get More Of It by Kelly McGonigal.  (I previously wrote briefly about this book in discussing effective New Year's Resolutions here). 

McGonigal defines willpower as the ability to do what matters most, even when it is difficult.  That definition is reminiscent of Bobby Knight's definition of discipline:  "Doing what you have to do.  Doing it well.  And doing it all the time."). 

One reason doing what matters most is difficult is simply the way our brains are wired.  Bringing to mind some of the analysis in Thinking Fast and Slow (mentioned here), parts of our brain spring into action in response to perceived threats or in order to make sure we get enough to eat.  (If you are about to be eaten by a saber-toothed tiger, it pays to have all your faculties devoted to escaping that fate).

However, when those instincts take over, the deliberative area of our brain - the prefrontal cortex- shuts down.  And when the prefrontal cortex is "disabled" so too is the capacity to exercise self control. Our brains have not evolved to distinguish between real and perceived threats and needs, so a host of stimuli (the smell of popcorn, a loud noise, etc.) essentially cripple the ability to exercise willpower.  One specific example:  even though it is painfully obvious that we have more than enough to eat, our brains still respond to food as if we don't know where and when we'll get our next meal.

Accordingly, McGonigal offers practical ways to train yourself to mitigate the harmful fight-or-flight grip of the amygdala and the siren song of the sleeve of Chips Ahoy, and instead move toward the "pause and plan" realm of the prefrontal cortex.    

Five specific points really stood out:

1) To Succeed at Self-Control, You Need to Know How you Fail.  In order to get more of what you want, you have to identify what is keeping you from getting it.  How do you become aware of how you fail?  Become more mindful of your choices and your actions.  And one sure-fire way to increase mindfulness is to meditate, because it gives you a glimpse of what distracts you (and how you fail).  And for all of you who hesitate to engage in this practice because of its Eastern (and I don't mean the Pee Dee) connotations, I offer Professor McGonigal's succinct, practical, and wholly secular explanation of why it is good for you:  meditation increases blood flow to your prefrontal cortex, channeling more resources to "pause and plan."  Another way of putting it: "Recognize, Refrain, Relax, Resolve."

2) Feed Your Brain.  I have written before about the effects of glucose on willpower, and The Willpower Instinct examines why your brain may get tired even though you might have the energy to walk around the block:  if your brain detects that your energy reserves are dwindling, it will limit resources to the brain that are useful for self-control.  In other words, if your brain senses that you are "trending tired," it may go into reserve mode and "budget" energy.  And so you need to give your brain the fuel to help you exercise willpower.

3)  Consider Why You Really Want It.  I have asked here before "Whose Song Are You Singing?" in order to point out that our reasons for doing and being often have very little to do with who we are and what we really want.  McGonigal puts it this way:  "If you're trying to change a behavior to please someone else or to be the right kind of person, see if there is another 'want' that holds more power for you."  One example that resonated with me is the approach of "wanting to enjoy parenting" as opposed to "wanting to be a better parent."

4) It's the Goal, Not the "Good".  Similar to Number 3, if you keep score based on the number of "good" acts you accomplish, (as opposed to whether certain behavior serves your goals), then you are more likely to experience a "halo effect" and allow yourself some "goal liberation" or the license to do something "bad" as a treat. (The indiscretions of numerous public figures would appear to underscore this phenomenon).

 5) Take It Easy On Yourself: Guilt Doesn't Work.    Just as doing or feeling good may backfire, so too will using shame, guilt, and regret as a motivator.  Your brain wants to protect your mood as much as it does your life.  And if you are distressed by guilt, then you fall right back into seeking rewards (i.e. feeling better) instead of acting in service of your goals.  Instead of beating yourself up, follow some of the advice given in If You Meet the Buddha on the Road, Kill Him:  "Learn to forgive yourself, again and again and again and again."

Remember (and Protect) the Important Stuff: Part One- On the Horns of the Password Dilemma

The Setup

Last weekend I had two of my children in the car and we were headed somewhere (I have forgotten where, which is one of the points of this post, so read on).  I stopped at the corner store (it might be a BP, it could be a Circle K-- it doesn't matter -- again read on) because I was dangerously low on fuel. (One reason I had run it down below empty is because I spend so much time keeping thousands of things in my head that crowd out the need to be mindful of important information like fuel levels).

When I went to turn the pump on, I could not remember my debit card PIN (not "PIN number").  While this lapse was not catastrophic, because I could choose the "credit" function, I wondered what I could do to make sure this did not happen again.  (And lest you point out that I could store my PIN in my smartphone, you are absolutely correct but that is not the point I am making here).

The Challenge

I (and you) have a limited amount of time and energy to expend in a day.  And as I have discovered as an adult (when these things have mattered), I simply cannot remember (or do) everything, but have to pick and choose wisely.  As Scott Hanselman put it:  Productivity is not about about doing everything; it is about doing the right things and ignoring the rest.  And when I cannot remember something important (like a PIN), I choose to believe that is the result of unimportant things crowding out that fact.

So what "unimportant things" do I choose to remember?  Well, in addition to regrettably unforgettable commercial jingles from the 1970s, the entirety of School House Rock, and movie lines from my youth, one likely group of suspects is the myriad usernames, passwords, PINs, etc. I use online.  I am pretty sure that these online presences are the "right things," because I can't conceive of physical banking and shopping anymore.  And it doesn't appear that the Internet is going away.  But the exercise of recalling how to access these services, as well as the attendant time and frustration involved in retrieving and resetting user credentials when I cannot recall them, are both unproductive and inefficient.

In short, I need my day (my time) and my brain (my energy) for the important stuff.  It wouldn't be a post on this blog without yet another tip of the cap to The Checklist Manifesto: How to Get Things Done Right, and Gawande's point that making sure all of the little stuff is taken care of frees us up to do the heavy lifting.  Put another way, as I have written here as well, I only have a finite amount of brain energy to expend in a given day, and I can scarcely afford to burn it trying to remember a password. 

The Dilemma 

 
Of course, one option is to use one password for all your sites.  Less to remember, so fast and easy, what's not to like?  I would be willing to wager that most computer users (i.e you the reader) do just that because it is so easy and convenient.  However, using the same password for more than one site can have disastrous consequences in the event just one site you use is hacked.  Put it this way:  you wouldn't even consider using one "master" key for your all your physical locks (office, home, etc.), even though that would certainly be easier.  And  you don't because if the one place with the weakest security is compromised (e.g. a former employee fails to return an office key) the whole system can be compromised.  That is exactly what you are doing if you have one password.  And you are in even bigger trouble if your password is so simple it could be compromised by a brute force attack, or if it can be easily guessed (like . . . wait for it . . . "password").  If you need further convincing,  please read James Fallows' "Hacked" in the The Atlantic to make this point sink in.

On the other hand, although the process of creating, changing, and keeping track of strong, unique passwords is essential, doing so taps time and energy.  Establishing and routinely modifying a unique case-sensitive,12-character password with letters, numbers and characters for multiple sites is the stuff of cryptographers and mathematicians. And recall the the way you felt the last time you couldn't remember your password, (or your username, reminder, or challenge question), and the frustration you experienced in stopping your transaction or interaction and going through the process of retrieving and resetting.  Heaven forbid you actually have to get on the phone with someone to get logged in. 

So until a better password system comes along,  wouldn't it be nice if you could conserve your time and energy by keeping only one password in your head (leaving more room for other important stuff), while at the same time browsing and transacting safely and securely?

In the next post, I will discuss one such solution.

Taking a Stand - By Popular Demand

If you keep up with my various media streams, you will know I have been inveighing against the perils of sitting down for long periods of time.

For some examples of what I am talking about (or what other folks or talking about and I am believing), see Sitting is the Smoking of our Generation by Nilofer Merchant, and Sitting is Killing You.

In addition, you may have seen my commitment to walk (or stand) the walk in favor of giving up sitting.  In response to a request from a colleague and friend, I include a picture of that commitment below:

 

Some Thoughts on "Email: The Reality in Law in 2013"

My friend and colleague Christian Stegmaier has penned (typed?) a thought-provoking post over at his new blog Lawyer as Service Professional.  In summary, because email is the primary communications medium for clients, Christian posits those attorneys who choose to "manage" email (i.e. put off responses to clients) risk compromising their very role as responsive service professionals.  In other words, email is the reality of client communication, so think very carefully about de-emphasizing or overlooking the importance of that medium.

I could not agree more with Christian's basic premise:  attorneys are in the service business, and there is absolutely nothing to prevent clients from voting with their feet if we do not meet their expectations.   Responsiveness is certainly one of the most important if not the most important (and consistent) ways in which attorneys can serve clients, and email by its very nature enables lightning response. 

However, I want to mention a couple of ways in which undue email emphasis may limit a service professional's effectiveness toward her clients.  First, the nature of what we do (deadlines, impending trials and hearings, etc.) requires attorneys to prioritize where we spend our time and attention.  And the typical email inbox by default has a tendency to make the most recent message the most important.  To quote David Allen, (about whom I have written previously here, here, and here) the inbox causes us to confuse the urgent with the important.  In my view, taking steps to manage and prioritize your inbox is critical, if only so you can better separate the wheat from the chaff.  If you are serious about prioritizing and managing your inbox, you must explore Scott Hanselman's Computer Zen. And there is no space or time to fully explore this point, but email is awful for collaboration with clients.  As we move forward (irrespective of the current reality), we will all serve our clients better when we employ the best medium to facilitate that service.

Similarly, another critical service attorneys provide to their clients is thoughtful consideration of their cases, problems and issues.  And as Jason Fried (and countless others) have observed, meaningful work (concentration and attention) cannot take place amidst too many distractions.  More pointedly, a brief I am writing would suffer greatly if I answer email messages (or allow other distractions) while stringing together (presumably cogent) ideas. To Christian's important point, if client expectations demand immediate email responses, perhaps designating a staff person to provide personalized responses (in the same way your phone would get answered when you are unavailable) would make sense.

Finally, clients understand that our rapid responsiveness naturally gives way at times in order that we devote that full attention to the matters we do on their behalf.  The client for whom we are arguing an appeal or motion, taking or defending a deposition, or trying a case fully expect and demand that the email requests of other clients remain unanswered and unviewed-- at least until those matters are concluded.  And I certainly hope that the desire to provide lightning response doesn't take place on I-26.  

In sum, email is the communications reality (at least for now), but that doesn't mean that the inbox need be the hub of a lawyer's daily existence.  It is a useful tool, if managed properly but not for everything an attorney does.  And sometimes only stepping away from that inbox, if only for short amounts of time, is the only way to recognize the reality beyond that interface.

Comments and responses always welcome at @jjpringlesc.