Wednesday, August 6, 2014

Because it Works

So much in life might be explained by this simple phrase. It came to me several months ago while I was discussing spam email with some attorneys. The conversation started about electronic filing and service, evolved through how you can instruct your email to always accept emails from certain senders to avoid a loss of important messages to spam, and then became about the "why" of spam.

Why do these people send me spam? I get advertisements for CLE programs in areas of the law that do not even remotely touch on workers' compensation. I get offers of employment that any fool knows are scams. I get ads from real estate agents, office supply companies and more. I simply mark these as spam and move on. Some days I receive none, some days a few.

The same thought occurred to me during a recent late night of statistical analysis. It helps me to have some background noise when I work sometimes. I am therefore in the habit of leaving the television running when I work at home. In this instance, I was vaguely aware that whatever I had tuned in had concluded and some new show had started. About thirty minutes later I realized that the new show was an infomercial for a device whose purpose I cannot fathom and whose purchase I just do not understand. Why do they run these infomercials for junk?

There was a restaurant I frequented years ago in a city far away. I wonder sometimes if it still exists. They ran a lunch "special" daily that consisted of a particular sandwich, side and drink for a fixed price. We regularly ordered the special even though there was really no savings that resulted. We were lured by the "special" label, and eventually began laughing at ourselves for succumbing to the hype. We would jokingly ask each other why the place bothered to call it a "special."

Behavior can generally be explained by the simple phrase above, because it works. They send spam because someone is responding to it, buying their product, revealing their identity, something. They pay to run all night infomercials for junk because someone is responding and buying it. They call it "special" so that we will find it more appealing. In short, why do they? can often be answered with "because it works."

Is professionalism in the practice any different? Why does that lawyer or judge break or avoid the rules? Why does that person always provide short notice of hearings? Why does that person not return phone calls, accept facsimiles, return emails, respond to discovery? Why does that person cut me off when we speak, refuse to listen, ridicule other points of view, threaten and berate? Why? I would submit that it is "because it works."

I sat in a mediation many years ago that I will always remember. I knew the mediator reasonably well, but it was my first mediation with this particular attorney. I represented the injured worker in this instance, which was a small part of my practice. It is worth noting that claimant's attorneys tend to know defense counsel better than they know other claimant's attorneys, and defense attorneys tend to know claimant's attorneys better. See, we more often get to deal with others in practice who are on the opposite side of the table. As my practice was primarily defense, I consequently did not know other defense attorneys such as this one as well.

In this mediation, there were many issues. Several had to do with credibility. The trial was going to be a swearing match and that was obvious to all involved. Someone(s) was not being completely forthcoming (that is a nice way of putting it, huh?). The mediator tried the evaluative process on the merits of the case, with little traction. Then the subject turned to what I would have to put up with from opposing counsel if we did not settle; unfathomably long and irrelevant depositions, endless motions of unclear relevance, nasty letters, threats, and other uncivil behavior.

As we discussed the case and the probabilities, we inched towards compromise. Inched. Inched. It was a long afternoon and a frustrated client. As an aside, I think all lawyers tend to forget that to us this is what we do but to the client it is their life that we are dealing with. There is always room for some compassion and commiserating and explaining for that client. They deserve it and it is not that hard for us to pause and provide it before and during mediations, depositions, and hearings. But I digress.

The case did not resolve at mediation, but it did a few weeks later. In the meantime, the mediator's prognostications and predictions about opposing counsel began to come true. I saw the mediator again months later and we laughed about our long afternoon and the predictions. I raised the question "why is _____________ like that." We came up with no answers. In retrospect, I now wonder if it could really be that simple. Perhaps "______________ is like that" because it works?

Will our profession continue to devolve, or can it be reclaimed? Will bad behavior continue because it works? I read a quote once to the effect that "we live on a small island of knowledge awash in a sea of ignorance, and our charge with each generation is regain a little more land." I cannot find to whom it should be attributed, but it is not mine. I would suggest though that professionalism is no different. We decide if we will insist on professionalism. We decide if we will regain ground or watch the erosion. We decide if we let something work, knowing that future behavior may be influenced by the fact that it works.

There is an effort afoot in The Florida Bar to take professionalism more seriously. Circuit Professionalism Committees are not new. Their recent efforts are documented in an annual report. They and the Center for Professionalism are now part of what we all do. In the last year, the Professionalism Committees have begun an evolution from professionalism education and consciousness-raising to investigation of specific complaints about poor behavior. Circuits are acting to transition, an example is here. It will be interesting to see how this will influence the practice of law. 

There will be complaints to the committees which are beyond the scope of professionalism and may require more formal Bar actions. There may be disciplinary complaints that the Bar determines are more appropriately handled as professionalism matters by the Committees. There will undoubtedly be some evolution in the division of responsibility. In case you have been wondering as you read this "what can I do" to promote professionalism, the answer is easy. The Circuit Committees all need good lawyers, professionals, to participate in their efforts. Contact your Circuit's Chief Judge or your local bar leadership today and see how you can help make this effort bear fruit in your community.

These will be small efforts, focused on an individual level. These will be community efforts. But there will be many of them. Together, we can regain a bit more land on this island of professionalism. We can spread and encourage good behavior if enough of us care enough to invest some time.

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