Thursday, March 26, 2015

At the Top of My Lungs "What's Going On?"

In 1992 a group called Four Non-Blondes recorded "what's up," a catchy one-hit wonder. In her angst, the singer tells us that at times she "scream(s) at the top of my lungs, What's going on?" I get that sometimes, and find myself asking the same question, though I refrain from doing it at the top of my lungs. 

Sometimes I hear about behavior, and I am simply astounded. I am hopeful that I, or someone, has misunderstood. I recently received an inquiry from a judge, describing representations that are being made, and essentially I am asking "what's going on?"

In the course of various hearings, this judge is being told that lawyers have instructed their staff to not return phone calls from specific opposing counsel's office. In other words, "if attorney so and so calls, just ignore it."

In another iteration of this problem, an attorney explained to the judge how his/her firm had instructed it's email program not to accept communications from a specific attorney. The explanation included description of the involvement of the firms information technology (IT) department.

Would an attorney who received a letter in the US Mail attempt to prevent the Mail person from leaving the envelope? Picture trying to tell the Mail person to sort out and not deliver mail with certain return addresses. Picture your firms mail room sorting the mail and instead of forwarding all of yours to you, the mail room automatically sends some back, quoting the late, great, King of Rock and Roll, "return to sender."

Why would someone reject mail on that basis, unexamined, unread, unopened? In some ways, I see a potential other side of the coin. I receive much in my US mail box that I would just as soon not receive. 

I have no idea where these companies get my name and address. Nor can I can see what I did to attract their attention. One which consistently amuses me is a catalog for camping equipment. I received one from this company about every 60 days. I've never ordered anything from them. Admittedly I have camped, but it has been many years. I guess it would be nice to somehow prevent the mail delivery person from leaving that catalog in my mailbox. It would sure save me the effort of throwing it away.

But correspondence from another attorney? That is certainly not in the same category. If you receive a letter from opposing counsel, would you attempt to get the mail delivery person to take it back? Would you toss it in the garbage can atop that ubiquitous camping equipment supply catalog without reading it?  Would pretending it never arrived be productive? Doubtful.

Years ago, I heard of a firm that only turned their fax machine on when they needed to send a fax. The remainder of the day, the fax machine remained powered-down, to prevent anyone from sending the firm a facsimile. I have never understood the point of that. Someone wants to communicate with you efficiently and quickly, but thinks it is appropriate to deny you the reciprocal courtesy?

What stimulates this refusal to accept communications? Are you one of the attorneys that sends verbose, threatening, repetitive, incomprehensible correspondence? Are you an attorney that leaves repeated, lengthy, threatening voicemail messages? Is there any chance that your communication could be the equivalent of another one of those camping equipment catalogs?

I think we could all spend a bit of time on introspection. I believe we could all ask ourselves how is the recipient going to, or is supposed to, perceive this communication? There's always value in putting yourself in the other person's shoes.

I recently attended a phenomenal continuing education program in Tallahassee. Please excuse my shameless praise, as it was the program sponsored by the WCI and OJCC in February. A great segment of that program focused on how to get the Appellate court to focus on your issue on appeal.

The speaker, Randall Porcher, reminded everyone that there are only so many minutes in each day. Time is precious. He reminded appellants and appellees alike, that there is value in getting to the point. He likewise reminded the audience that hiding your point, or leaf, in the midst of a huge forest may obscure your point. Are you trying to hide it, or do you want the recipient of your communication to get the point?

Is it possible, in our communication with one another, that we could also take this to heart? Time is precious and limited. If the issue is whether you can or will agree to a certain set of facts, scheduling dates, or other questions, why not ask that? Why not say what you mean, get to the point, be brief, respectful, and direct?

Is there a value in recapitulating each and every point which you believe to be in your case's favor, in each communication? Or alternatively, would making all of our communication respectful and concise be to everyone's advantage.


On the other hand, I would appreciate hearing the explanation of the attorney who tells her or his staff not to return phone calls from opposing counsel. Having slept on this allegation for days, I cannot conceive of a professional reason for instructing staff to ignore communications from anyone.  

I cannot conceive the logic behind having your server rejecting emails from a specific address, unless some particular sender has become abusive or unprofessional in their own right. Even then, however, you risk missing messages that are relevant and important. By "blocking" someone's email you are just like the firm that turns off the fax machine. You deny that attorney of convenience and efficiency. Will that attorney reciprocate and block your email? Is that professional? What happens if everyone begins refusing everyone else's mail or email? I am not saying it is inexplicable, I just cannot come up with an explanation.

That's not to say that IT or even intent is required for email rejection. It is a lesson I recently learned about the way the Internet works. There are computer programs (I call them "Autobots") which measure the output and content of email addresses. I sent a series of emails out to a multitude of people regarding a professional organization a couple of years ago. As a result of that effort, one of these lurking Internet programs identified my email address as a distributor of spam, based upon the similarity of the content of many emails, including the similar or identical nature of the subject line.


Because this Autobot determine me to be a spam generator. It communicated my "spam-generator" status to a multitude of agents across the Internet. As a result, several anti-spam software's thereafter listed me as a spammer. So, for a period of days, all of the emails from my address were being flagged, and many placed into spam folders at the end user.


I know of other instances in which a firm's address has been identified with spam. For a period of time, there was a law firm whose emails to me were being placed in my spam folder. Advised of that, I asked our IT department to investigate. They determined our spam filter had identified that address, but could not determine why. We all get updates to our spam software from these agents that gather data. 


There is an easy solution for accidental or incidental spam identification like this.  You can instruct your email program that emails from specific addresses are "safe." Just Google "marking email sender safe" to find instructions for doing so in your particular email program. 


I would appreciate hearing the other side of the story. Please email me at david.langham@doah.state.fl.us and explain what circumstances justify systematically refusing to return calls from opposing counsel's office. Explain what justification supports blocking opposing counsel's emails. I cannot say it is always unjustifiable. I can say that I do not understand it and would appreciate someone explaining it to me. What is the rest of the story? Write and tell me "What's going on?"

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