- Technology hampers a lawyer’s discernment.
- Remote meetings tell only part of the story.
When I was a young lawyer, my boss made me fly across the country to meet a client on a matter that barely justified an extended phone call, let alone a plane ticket. I was annoyed and thought it inconvenient because I couldn’t bill the travel time. The partner I worked for believed that touring the client’s plant was an important part of the “thoroughness and preparation reasonably necessary for the representation”. (ABA Model Rule 1.1: Competence). I toured the client’s plant, we ate dinner, and I flew back home. It turns out that the visit was also part of my diligent representation—representation that requires lawyers to pursue their client’s matter despite personal inconvenience. (ABA Model Rule 1.3: Diligence and related comments). Without the tour of his plant and our discussion over dinner, I would not have known about key issues that were later important to my representation of the client. I had also established a line of communication and trust. The next time this client had a problem, he called me directly to ask my advice; by meeting him in person, I had not simply discharged my duties under the ethics rules—I had established a relationship that mattered far more than the lost billable hours.
In the post-pandemic world, this kind of personal interaction is less and less frequent, and may seem a waste of time since we have all mastered the technology needed to meet “face to face” via the internet on a moment’s notice. Nonetheless, the personal touch is still critical—both to our duties to our clients and our success as lawyers. As lawyers, we hone our art of discernment—the ability to distinguish or judge what is otherwise obscure. Remote communication makes discernment nearly impossible as it denies us three of our five senses and cripples the others.
Let’s start with vision: Zoom and other video platforms let us see others, but only as much of them and in the light that they choose. As lawyers we like to believe we are good judges of character, but you can’t judge someone’s character from an avatar or a distant blob (or their initials on a blank screen). In a remote deposition you cannot judge if the witness is nervously jiggling his knees or tapping his foot. And what about that nervous tick or the sly smile that reveals someone is telling a lie? Even with a reasonably sized video, the subtle changes in a gaze that go with confidence or nervousness are likely to be missed.
Hearing suffers as well. The best video and teleconferencing platforms still strip the nuance out of oral communications. The strain in the voice from intense feeling disappears, and the low whisper that conveys a threat or perhaps a promise can’t be heard at all. In group meetings the anxious private whisper turns into a Slack or text message with no clue about the feeling behind it.
Vision and hearing are only limited, not eliminated. Touch disappears entirely. You can learn a lot about a client, opposing lawyer, or witness from a sweaty or overly aggressive handshake or even fist bump. Watching someone place a hand on their client’s arm during questioning or a discussion can speak volumes, but only if you are there to see it.
Lawyers also learn about others from seeing them in their workspace. That “blur” setting or green-screen view of the tropics takes away that context and, with it, valuable information about opposing counsel’s or even our client’s position in their business and their notion of how they should present themselves to the world. Remote meetings also eliminate, in the name of efficiency, the social interactions that accompany a personal visit. What kind of car does your client, expert witness, or local counsel drive or where do they like to eat lunch or dinner? You learn something about them from their choices and, of course, from the more personal conversations that come with driving and eating together.
The legal community and the courts made great strides during the pandemic in our ability to practice law remotely and in getting the most from our technology; the duties of competence and diligence, however, require us to understand the limits of relying too much on that technology and to remember that the personal touch matters now as much as it ever did.