Volume 3, Number 1 • November 2004

Technology Meets Real World Practice (The Practice Wins)

 By Evan Loeffler

As computer and digital technology continue to improve, more and more computer-based solutions are available for the harried law practitioner. When I started law school in the early 1990s, legal research was primarily done in large rooms called “libraries” containing brick-like tomes of arcane legal reasoning called “books.” Westlaw and Lexis were available, but only on stand-alone machines that required the user to stoke a coal fire that kept the boilers burning, and to periodically sacrifice a goat (or a legal intern, which was usually cheaper) to the computer gods. Today, by comparison, I am sitting in a donut shop a few miles from my office typing this article on a laptop computer. If I were inclined to do legal research, I could do so over a wireless network without getting up or plugging anything in.

When I passed the bar in 1994, the first thing I purchased was a Dictaphone, which was then considered an absolute necessity for writing legal memoranda. Today I am able to dictate directly onto the computer, although my experience has been that this seriously annoys the other patrons of the donut shop.

Technology, while awe-inspiring, does not make one a better lawyer. It is the intelligent and strategic implementation and use of these tools that helps the efficiency of the lawyer and improves his or her practice.

I learned this lesson some time ago when I first used dictation software. My client, Charles Parker, had recently purchased a new home. To improve his view, he cut down a large tree that was growing in the center of his yard. His neighbors objected, because the tree also blocked the neighbors’ view of my client’s house. Since the tree was not on their property, however, there was nothing they could do. A few weeks later the neighbors built a 30-foot fence on the property line. I researched the issue and determined that building a fence solely to block the view of a neighbor ran afoul of the single most amusing legal term in Washington State law: “malicious erection.”

My client brought suit to require the neighbors to remove or reduce the height of their fence. I prepared a legal memorandum in support of my client’s position using the newest, most fangled dictation software technology available. Unfortunately, the developers of such technology did not take certain factors into consideration. First, there is the problem of the computer, which was assembled in Texas, and the software, which was programmed in California, understanding my accent, which is a product of having grown up in Boston.

“Computah,” I said into the microphone. “Create a new Wahd dohcument in the Pahkah foldah.”

“Dude,” said the computer. “Like, I can’t understand ya’ll.”

“Whadya mean you don’t unnerstan’?” I asked. “I wanna dictate a brief. Open a $%&@# document!”

“Dude,” the computer protested. “Like, there’s no need for all this cussin’ and swearin’.”

I explained that “$%&@#” is a term of endearment where I grew up, but this was fruitless as the computer didn’t understand the term “endeahment.” I finally brought the computer to heel after installing a Bostonian to English dictionary (at a cost of $29.95), and after paying a computer expert to turn off the annoyingly cheerful animated paperclip that cheerfully insisted on correcting my diction.

Unfortunately, dealing with all these side issues took longer than I had planned. I had to scramble to get the brief filed by the deadline, and I did not proofread the finished product as thoroughly as I might have. The magnitude of this problem was not clear to me until oral argument on my motion seeking a declaratory judgment that the neighbors’ fence was built solely to spite my clients and block their view, thereby satisfying the elements of “malicious erection.”

“Counsel,” said the judge, “who is responsible for this brief?”

In hindsight, I suppose I should have guessed this was not a ringing endorsement of my writing skills when he held it up the brief as if it was something he fished out of the sewer.

“I am, your Honor,” I said.

“Well, Counsel, for future reference, you may take notice that the court is not amused by your editorial comments!”

“Editorial comments?” I echoed. “Your Honor may be mistaking my zealous representation of my clients for—”

“Zealous representation?” the Court asked derisively. “Let me read a few interesting sections of your brief ….”

As the judge read the brief aloud, two things became clear; first, that I had giggled uncontrollably every time I used the term “malicious erection”; and second, that while dictating I had had the radio on in the background tuned to a Top 40 station. Thus, my brief and—through the efforts of the judge—the court record was replete with bizarre but unique passages:

  • The defendants’ malicious erection—hah hah hah—materially affects the plaintiffs’ enjoyment of the premises. I fought the law and the law won. I fought the law and the law won.
  • Pursuant to Washington law, an injunction may be granted to restrain the malicious erection of any structure intended to spite, injure, or annoy an adjoining landholder. I like mine with lettuce and tomato, Heinz 57, and French fried potatoes. A mandatory injunction lies to compel the abatement and removal of any such structure. Well, good God almighty, which way do I steer?
  • The plaintiff, therefore, like a bridge over troubled water, prays for an order directing the defendants to remove their malicious erection—snicker, chortle, guffaw—and lay me down.

The dictation software was not equipped to tell the difference between the pearls of legal wisdom as they fell from my lips and the meaningless background drivel coming from the radio. Fortunately, the judge was able to tell the difference, and my motion was granted. The judge, however, made his displeasure with my brief known in addressing my request for an award of attorneys’ fees:

“I find that the plaintiffs’ request for an award of attorneys’ fees should be granted, subject to the handwritten promise of plaintiffs’ counsel that he will immediately enroll in a continuing legal education class on how to write a legal brief.”

The lessons I took from this experience were several, the most important being the value of not relying too blindly or heavily on technology. More importantly, the necessity of editing all written material before leaving one’s office cannot be overstated. Finally, I learned that it is generally best not to convince the judge in prehearing briefing that I am an idiot. It is difficult to disprove, and I find that proving the fact in person (if necessary) is no trouble at all.

Evan L. Loeffler is of counsel to the law firm of Harrison, Benis & Spence, in Seattle, Washington, where his practice emphasizes real estate litigation.


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