Communication: From inkwell and quill to email – and back?
Law and lawyers, like the rest of us, have had to keep up with the changing times. But unlike many sectors, the law is especially conservative. The legal sector has resisted the embrace of modernity in some respects. You might be surprised to know that no commercial lawyer worth their salt would accept email to be incorporated into a contract as a valid form of contractual notice between parties.
Without wishing to bore you to tears, those notice clauses generally accept valid notice between the parties only if given in person, by courier, mail or fax. Remember fax machines? I think lawyers are single-handedly keeping the fax machine market alive and well.
I have not used fax since I was a trainee lawyer back in 2004. But in some parts of the World, they are a staple form of communication. This might sound backwards, but they are still used in football. Football player transfers are still done by way of fax machine. For the Manchester United fans amongst you, you may recall the failed 2015 transfer for goalkeeper, David De Gea, to Real Madrid. The transfer faltered as the fax message with the final transfer papers was two minutes late and missed the transfer deadline.
Inkwell and quill
To put this into some context, for much of the near 900-year parliamentary democracy in England, laws, statutes, contracts and other official documents were all written by hand in beautiful calligraphy. First with inkwell and quill, later pen and ink then typed text. In Victorian England, there were armies of legal clerks and draftsmen who would be responsible for producing legal documents. As a side note, trainee solicitors used to be called “articled clerks”, as a throwback to the legal clerks of yesteryear.
Handwritten agreements are hard to imagine today. We could not fathom re-writing a 300-page loan agreement to include some last-minute changes if we had to do the whole thing by hand. The converse is perhaps true, documents became longer and more complex with the advent of typed and then word-processed text.
This helps to set the scene for the relatively slow and conservative nature of law. At the risk of being accused a Luddite, has all this so-called progress been positive? What are the side effects?
The advent of the mighty fax machine
A senior colleague of mine used to tell me about her former supervising partner when she was training back in the early 1990s. Email was still embryonic and letter correspondence was king. The partner would work through the day’s post and usually have time to consider the advice and write back within a week. That was standard business practice.
Then with the prevalence of fax machines, clients would fax through questions and follow-up with a call. They would ask the partner “have you read our fax?”. He would say, “yes, but I have not had an opportunity to consider it as yet. I will review and revert to you by letter with my detailed comments”. We have lost that consideration time. Even the most complex pieces of advice are expected to be turned around with the speed of email.
Internet and email
The World Wide Web and email burst onto the scene in the early 1990s. They would revolutionise communication in an unprecedented manner. A 2018 study estimated that there were 3.8 billion email users. By 2022, the same study estimates that we will be sending over 333 billion work and personal emails each day. With the COVID-19 lockdowns, I have personally noticed a massive uptake in the number of emails we are sending and receiving. In part, as we are working remotely more than ever. This is far from scientific, but from personal experience, my inbox went from 6,000 emails pre-lockdown and is currently standing at around 12,000. That is a lot of new traffic bearing in mind all emails over six months old are automatically transferred to our cloud-based secure server and deleted from our inboxes.
The inbox treadmill
Most law firms have a policy that emails should be responded to within 24-hours. That might sound reasonable but when you can get over a hundred emails a day it soon becomes a difficult juggling act. The art of the ‘holding email’ is key. Acknowledge receipt and say that you are working on it. Just remember not to inadvertently tick something off your mental to-do-list if you have only sent the acknowledgement. That might sound redundant, but it is easily done when you are managing numerous matters simultaneously.
Most of the time, acknowledging the email is acceptable but there are always clients that want the advice immediately. US law firms are the worst. When you support them on deals, everything is urgent all the time. It reminds me of reading one of Aesop’s fables, The Boy Who Cried Wolf, to my kids at bedtime. This desire for instant advice is exhausting. It is usually a result of someone overcommitting to a client without checking when they actually need the advice.
Although to be fair, most clients want everything yesterday. Generally, this is without fully appreciating the complexities involved. “What is that? You want a bespoke shareholders’ agreement perfectly tailored to the needs of your widget manufacturing joint venture, with proper risk allocation, per your offshore equity ownership structure. Sure, I have one of those in my drawer. I will be right with you.”
Email etiquette – or lack thereof
Clients are not subtle in letting you know when they want a particular piece of work. On a major project financing, the client’s project manager had the habit of making unreasonable demands. “I want this updated agreement in the next 20 minutes”. That was of course impossible. So, if you were a few minutes late, you would receive an email which simply states: “Gentle reminder!!!”. You will have of course noticed the delicate use of exclamation marks which negate the word “gentle”.
Ten minutes later, you would get additional emails, mixing things up, with edited text colour, font size and all CAPS for good measure:
Trying to speak reason with such an individual is an exercise in futility. Although my faith in human nature, Karma and a modicum of social justice was restored upon recently hearing that the project manager in question was sacked! He must have applied the same charm, wit and charisma with his team.
A 2016 report in the Journal of Addiction Medicine found 20% of lawyers surveyed struggled with drinking and 11.5% had suicidal thoughts during their careers. More than 60% reported concerns with anxiety. All of this is pre-pandemic. Throw in the pressures of lockdown, isolation, additional anxiety about family and job security and it paints a bleak picture. The New York Bar Association has called for law firms to do more to support their lawyers. Some firms are offering support through virtual counselling for example.
In my view, this only seeks to cure the symptoms and not the root problem. The underlying issue is the relentless pace of modern corporate communication, deadlines, and the eternal chase for endless growth every quarter.
I am stopping short of suggesting that we go back to the inkwell, quill and beautiful calligraphy (although the calligraphy might be a nice touch). We need to start a serious dialogue about the fallout from always being connected to your work email. Connected at your desk, in your pocket through your smartphone, on your wrist with your smartwatch, or your sofa with your smart tablet or laptop.
Some options are being explored around the world:
The French have resorted to legislation. Companies employing over 50 employees are obligated to negotiate a framework with employees to protect their “rights to disconnect” in this always-on world. Legislators are seeking to protect employees’ private lives.
The Finnish are having a debate about introducing the 4-day week or limiting work to no more than 6-hours a day.
With the proliferation of worldwide lockdowns, working from home has been transformative. Although not without its challenges, it has allowed workers to connect more with family. But more thought needs to be given to support workers to transition better to working from home; whether through office equipment, fast broadband or support with juggling home-schooling commitments.
Research undertaken by Hitachi Capital UK (a financial services provider) found that over 60% of legal staff want greater flexibility to work from home after the pandemic. This follows a broader sentiment amongst employees in other sectors who also want to see much larger shifts to home working after the pandemic.
One thing seems certain, our working life will not be the same on the other side of this pandemic. Stay safe and look after yourselves.