by Lei Lei Wang Ekvall

Life is supposed to be easier with technological advances. But is it? Technological advances have made it easier for lawyers to be more accessible to clients and have helped lawyers explore non-traditional work arrangements by being able to work from home or a satellite office. Technological advances can also save money for clients and reduce a firm’s overhead.
   

I am rather astonished and not entirely enthusiastic about how much the practice of law has changed just in the last decade as a result of the popularity of e-mail and smart phones. Now, e-filing is coming. Perhaps it was the same back when the typewriter was first invented or when the fax machine first became commonly used, or perhaps I am just getting—dare I say it—old.
   

The common use of e-mail and smart phones have changed the pace and, in some cases, the tone of the practice. E-mail has essentially replaced the other forms of communication utilized in legal practice. It’s rare these days to receive a letter by mail or by facsimile. The formality and thoughtfulness that are commonly associated with a letter, however, are rarely seen in an e-mail. The informal tone of e-mail works well when you are checking on status, setting up a meeting, or asking or addressing a simple question. However, when a situation becomes adversarial, the informality of e-mail allows the parties to feel more comfortable using rude, curt, or inappropriate language. (I know an attorney who was unable to attach his e-mails to a motion to compel discovery because all of his e-mails to the deponent contained profanity.) The amount of time it takes to hit the <send> key is not enough of a cooling off period when you are in a heated exchange.
   

Where the substance of the discussion is complex or likely to generate follow-up questions, e-mail seems to be an extremely inefficient and ineffective way to communicate. Trying to negotiate a settlement or provide substantive and substantial changes to a settlement agreement by pinging e-mails back and forth has to be more time consuming than just getting on a telephone call to work through the issues.
   

I have also heard people say they like to send e-mails using a Blackberry because it creates an excuse for poor grammar and misspellings, and could also provide plausible deniability as to content of a long complex e-mail. Will we soon see papers contending that there was excusable neglect because notice provided by opposing counsel was misunderstood or misread as it was contained in an extensive e-mail read on a Blackberry while driving?
   

What is equally interesting is e-mail’s effect on the pace of the practice. Smart phones allow lawyers to review and respond to e-mails anywhere and anytime. The practice is no longer limited to the traditional business hours of 9 to 5, and clients and opposing counsel expect immediate responses to e-mails. Not responding to an e-mail within a few hours can be viewed as being non-responsive. Just a decade ago, it was perfectly acceptable to take a couple of days to respond to a letter and a day to return a telephone call. The expectation of an immediate response is, in turn, causing the content of e-mail communication to suffer in terms of substance and clarity, whether intentional (see the preceding paragraph) or not.
   

It seems that communication of important and complex issues should still be done by letter. A letter requires that it be printed and presumably read before it is signed and sent. The process and timing dictate more thoughtfulness. The telephone is still a great way to communicate. Haven't you ever spoken with a client on the phone and got a new case referral as a result? Additionally, e-mail communication should be treated like any other written communication. Just imagine the e-mail blown up before a jury.
   

The latest technological advance to sweep through our legal community is e-filing. For those of us who practice in federal courts, e-filing has been mandated for a year or so now. The Superior Court of Orange County is not far behind. It is in the process of testing its e-filing system and may have a pilot project ready in a few months.
   

E-filing, like e-mail, has changed the pace of practice. Clients or co-counsel will often ask, “What is the latest that I can get my comments to you?” With e-filing, that deadline could be 11:55 p.m. Clients and co-counsel may not be that presumptuous, but it is very common to need staff beyond 5 p.m. or 6 p.m. For those of us who are procrastinators, e-filing is wonderful.
   

E-service, which goes hand-in-hand with e-filing, allows parties to receive instant notification of filings. The only potential drawback of e-service is that the recipient is now charged with printing out the service copies of the pleadings. Clients and lawyers, however, can save a great deal on courier and copy charges. Courts are also able to address some of their fiscal issues by transitioning to e-filing. And, again, the ability to e-file anytime, even if the court is closed, is wonderful.
   

So, as with anything, I guess you take the good with the bad (just try to minimize the bad). And don't get me wrong, I am really not proposing that we go back to writing pleadings in calligraphy and serving them via the pony express.

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Lei Lei Wang Ekvall is the 2010 President of the Orange County Bar Association and a partner of Weiland, Golden, Smiley, Wang Ekvall & Strok, LLP, where she specializes in representing debtors, creditors, and litigants in business reorganizations and workouts.