In a recent episode of his podcast, Cal Newport says he doesn’t believe in writer’s block, and other professional writers don’t either. “Writer’s block” is part of the normal writing process. Writing is usually laborious; writers rarely experience “flow” or get visited by the Muse. As Chuck Close says, “Inspiration is for amateurs.” So what feels like writer’s block to most people feels like the usual process to a more experienced writer.

But I was surprised to hear Newport also suggest he and other accomplished writers sometimes stare at blank screens, uncertain what to type next. Perhaps he meant this metaphorically because I doubt he or any other established writers take this approach.

As Armin Nassen notes: “The white sheet of paper — or today: the blank screen — is a fundamental misunderstanding.” (no link available)

Instead, writing should start with reading, creating notes on the subject, formulating a unique take, then reformulating those notes into a draft.

In How to Take Smart Notes, Sönke Ahrens argues for such a nonlinear process. Writers build and revisit interrelated notes based on reading. Then they order and weave these notes into prose. Ahrens criticizes writing instructors for attempting to “squeeze a nonlinear process like writing into a nonlinear order,” resulting in “the very problems and frustration” they set out to solve.

By seeing it as a nonlinear process, we appreciate that writing is fundamentally about thinking through ideas. As John Rogers says: “You can’t think yourself out of a writing block; you have to write yourself out of a thinking block.”

This takes work. As William Zinnser describes it, the writer’s job has always been to create what someone else wants to read. And good writing still requires “plain old hard thinking” and “the plain old tools” of language. To remind himself and his students of this reality, Zinnser hangs in his office a photograph of a 77-year-old E.B. White, working in a boathouse with a plain wooden table, with just his typewriter, paper, and a nail keg (for trashing drafts). Writers have always worked like this.

Yet people often fail to recognize the hard work that goes into good writing, or making anything else of value. When talking about magic, Teller says, “You will be fooled by a trick if it involves more time, money and practice than you (or any other sane onlooker) would be willing to invest.”

That’s why reading good writing can feel like witnessing a magic trick. To perform this sleight-of-hand, writers spend more time rethinking ideas and wrangling words than others would be willing to do.

But we shouldn’t start with a blank screen. Instead: capture ideas with notes, remix the notes, and write the prose.

So, even if writer’s block is real for some, it doesn’t need to be for you.

Let’s hope we have more of a plan for working from home this school year. We’re at an inflection point. The future of remote work will be shaped by how we respond to the challenges of the coming months.

When offices closed this spring, there was an intense period of adaptation: expanding IT infrastructure, creating or upgrading home workspaces, and reassigning household responsibilities. Working parents had to develop systems for kids, who themselves needed to be productive at home. Given the immediacy of the transition, expectations were low, and all around, we gave each other a pass.

Over the ensuing months, employers realized benefits from a remote workforce, namely lower rent and office expenses. Workers enjoyed not having to commute, and some were finding they could be equally productive from home, and in a few instances, more productive.

But now, after a long summer, we enter a new period. The start of school is about to stress an already fragile latticework. For many parents, working from home has been rough all along and they are feeling the cumulative strain. School could make working untenable altogether.

Ben White and Catherine Boudreau, reporting for The Politico:

A senior Wall Street executive deeply immersed in these talks told The Long Game that the calculus is now quite different, a fact that may be alleviating the worst fears of a corporate real estate meltdown and dashing hopes of a big cut in carbon emissions. The fact is: Many workers are desperate to get back to the office. 

“What we’ve all found out the hard way the last five months is that we are working harder and it’s more intense and there are no breaks, or community. And it bleeds into weekends and you are kind of on 24/7,” the senior executive said, asking not to be named to discuss internal matters. “We are having rolling nervous breakdowns.”

In the legal profession, Whittney Beard and Malina Nangia write (subscription required):

We are currently in the middle of a child care crisis in this country. And parents are not alright. [E]mployees, especially those who have younger children, and, yes, disproportionately the moms, are operating in pure survival mode. … And what’s so surreal about it is there has been no national dialogue—no reckoning with the expectation that parents continue to be fully productive at work while also caring for children who need near-constant supervision, direction and teaching.

They cite a recent member survey by Cleo suggesting that one in five parents are considering leaving the legal workforce because of COVID-19. I’m not aware of data showing this, but undoubtedly many parents also planned to return to the workforce by now, but instead put their job search on hold because of COVID-19 and increased household responsibilities.

So how do we succeed this fall? It comes down to having a new mindset: both employers and schools need to change their assumption that working parents can be constantly available. 

Employers need to understand that workers will be called upon to help with childcare and school responsibilities, sometimes randomly and without notice. Think “flex-time” but without any predictable schedule. Expect the work to get done, but give employees complete freedom to chose when it gets done.

By equal measure, schools need to assume that parents work during the day — that means all parents in the household, not just the man in a “traditional” two-parent arrangement. This translates into keeping kids busy during school hours. It means not scheduling events during the workday, such as meetings, supply pickups, or other activities requiring parental involvement. Like with their work, parents need more freedom to chose when they get school stuff done. And, please, fewer emails!

But even with autonomy over their schedules, working parents still have limits. Employers need to expect less productivity. In the law firm world, that means lower billable hours. For schools, they need to expect less, not more, parental involvement.

Finally, children may have to take on some responsibility too. Calling for this will be controversial. But many high school and middle school kids are certainly up to the task. And even some older elementary school kids can learn how to work more independently. Teachers must set these expectations.

If employers and schools get this right, we may begin a new and permanent arrangement where working from home is truly the norm. Employers reduce their overhead, employees enjoy greater autonomy, and the environment gets a respite.

But if we see a repeat of last spring — with parents and students struggling — we’ll see a backlash. Parents will leave the workforce, seek new schooling and childcare arrangements, and adjust in ways likely to hurt the professions and our economy overall.

We’re at a fork in the road. Let’s think about which way to go.

Based on his discussions with lawyers at different levels in their careers — from new associates to equity partners — Newport believes law firms are “terrible places to work” when it comes to facilitating unbroken concentration and “cognitive hygiene.” As he sees it, this is particularly unfortunate in a field so purely cognitive in its pursuits.

For most lawyers, the fundamental problem is the demand for constant availability — usually through email — a problem I’ve written about before. The frequency of network switching affects the quality and rate of production.

How Lawyers Should Work

As an example of how lawyers should work, Newport cites the habits of The Honorable Raymond Kethledge, a federal judge on the United States Court of Appeals for the 6th Circuit and potential nominee to the U.S. Supreme Court. (Newport also features him in Digital Minimalism). Judge Kethledge likes to write his judicial opinions in a barn, which lacks an internet connection and is otherwise a distraction-free environment. Judge Kethledge describes the barn workspace as raising his IQ “a nontrivial number of points.”

Law Firms And Cognitive Hygiene

Unfortunately, private practitioners usually lack anything approaching the autonomy of federal judges and would struggle to excuse themselves to an internet-free barn — metaphorical or otherwise — despite many lawyers continuing to work from home because of the coronavirus.

Newport offers two reasons why law firms are such poor places to work when it comes to cognitive hygiene:

1. The incentive structure is “warped.” Lawyers generally bill by the hour. So firms try to fill every waking hour with work (and then “try to reduce the number of non-waking hours.”) There is little incentive to do things efficiently, a business model he views as “unsustainable.”
2. The legal professional is conservative. The law is “old fashion” and slow to change.

Let’s start with billable hours. It’s tempting to blame this structure for many of our ills. We all seem to hate it. But does it make lawyers less efficient?

The structure could make an unscrupulous lawyer less efficient if he lacks sufficient work, tempting him to draw out the work over more hours. But lawyers are often overwhelmed with work. They desperately want to get through it quickly. The incentive to be efficient is finishing the crushing amount of work left to do; the disincentive is more sleep deprivation.

There’s also a difference between the hours billed and the amount lawyers get paid. Corporate clients and insurance carriers readily cut hours they view as having been spent inefficiently. The same is true for courts reviewing fee awards.

So what about the second reason, the profession’s fundamental conservatism?

Lawyers indeed have a reputation for adapting slowly. Some individual lawyers find ways to practice essentially the same way they did twenty years ago. Law firms are usually led by other lawyers, individuals who lack formal management education or experience. In contrast to other business leaders, they may be less connected to institutions that emphasize adaptation, innovation, and improvement.

Yet both of Newport’s explanations feel unsatisfactory.

The fundamental reason, I believe, is cultural, and comes down to what I call The Response Time Fallacy: the erroneous argument that clients universally expect quick response times, so lawyers are compelled to do whatever it takes to meet these expectations.

A Culture Of Constant Availability

To the extent some clients expect lawyers to immediately respond to email (and other channels of digital communication), this is part of a broader problem of knowledge work culture. But as I’ve argued before, my experience is that most clients usually don’t expect lawyers to be constantly available.

Assume for the moment: a client has been receiving periodic updates or has ready access to the information they need, and has come to trust the next report will be of similar high-quality and on-schedule. Where is the need for immediate communication?

“Rainmakers” will argue that being constantly available is critical to maintaining their client relationships, and thus bringing in the business. Availability is part of their draw. But if these folks are so good at maintaining relationships, must they rely on such problematic communication habits?

As Newport hints, the big interruption problem is other lawyers, not clients. We must distinguish between client communications and internal communications. We will find that most of our interruptions are self-imposed.

And even if a client demands constant availability, the expectation should not filter down to every lawyer on the team through internal communications. Maybe some lawyers will interface with the client to ensure a high level of responsiveness. But other lawyers on the team can focus on their work.

Newport suggests other cultural problems in his discussion of law firm power dynamics. He sees a “Navy Seal-type mentality:” Partners remember how brutal it was climbing the ladder, so they keep the rungs slippery.

This mentality persists but is fading. Many firms have launched “life-balance” initiatives in recent years, aimed at attracting younger generations of lawyers, working parents, and other talented lawyers put-off by these attitudes.

Taboos And Opportunities

Regardless of whether the interruption problem is exacerbated by law firm culture, the fear of not being constantly available is real. Lawyers are scared to talk about this publicly. They are terrified of being viewed as unresponsive or less service-oriented than their competitors. This is a brutal marketplace. To openly entertain a different way of working is to risk your livelihood, or so it feels anyway.

Newport views this as a huge opportunity: If a firm respected peoples' cognitive health — by minimizing distractions and keeping lawyers’ hours reasonable — top candidates would compete for positions there. The firm would produce better work, attract higher-paying clients, and a virtuous and profitable cycle would follow.

Unfortunately, this opportunity remains mostly theoretical: leaders at firms don’t want to discuss this topic, let alone acknowledge a problem and try to solve it. It’s more important to maintain the image of being hard-driving and strong. The idea of being thoughtful and strategic seems weak and dangerous.

So, before we can make these changes, we need to bust the taboo on this subject. We need a frank and open discussion — within firms, between lawyers and their clients, and publicly.

In The Gutenberg Elegies, author and critic Sven Birkerts writes:

For in fact, our entire collective subjective history — the soul of our societal body, is encoded in print. Is encoded, and has for countless generations been passed along by way of the word, mainly through books.

Philosopher and critic Marshall McLuhan famously observed that the “medium is the message.” The mode of communication (speech, print, television) governs our cognition, which in turns shapes our social interactions. Our post-enlightenment thinking and social structures were sprung from new ideas, but also from the medium through which those ideas were transmitted: the printed word, particularly books.

Reading a book is to slowly sip ideas for extended stretches while engaging the words, to think in solitude — if not physically, then mentally so. And thus we built a world based on individualism, capitalism, and empiricism.

Books are not just containers of ideas. They are ideas themselves and physical landmarks in the field of cognitive. Jane Friedman writes about physical books:

The less visible and immediate physical books are in our lives (because bookstores disappear, because books become digital, because competition from other media), the less likely any book will find its audience through patience or serendipity.

A reader might discover a book by perusing favorite sections at a bookstore. The reader learns about a book by confronting the physical artifact. And the layout and marketing of the store — the underlying texture of this experience — is crafted to induce a purchase, to take that book out the door and the ideas back home.

The book may sit on the shelf for a period, to be rediscovered later, when the time is right. The book will find its audience through yet more “patience.”

Shortly after it was published, my mother gave me Peak by the late K. Anders Erickson and Robert Pool. I wasn’t spurred to read it until after finishing Cal Newport’s So Good They Can’t Ignore You, where he discusses deliberate practice and summarizes Erickson’s research. By then, I was ready. And there it was! The book had been waiting for me patiently.

Then there are audiobooks.¹ The text is enriched by an actor’s voice — though I prefer hearing the actual author read. Some newer audiobooks are true multimedia experiences. Take Talking to Strangers. Malcolm Gladwell reads the book himself, giving his words a trenchant earnestness. He includes music, audio clips from interviews, readings from court transcripts, and other original source material. The intertextual richness is compelling. But as that landscape expands, the role of our imagination shrinks. And, like when listening to podcasts, there’s the temptation to multi-task, rather than focus. And how do you interact with an audiobook, since there’s no physical object to flag or annotate?²

For me, nothing yet has improved on the printed book, ideally a hardcover edition I own. It can live on my bookshelf, patiently waiting to be discovered — or rediscovered.

1. According to the Association of American Publishers, revenue from audiobooks has nearly tripled since 2014. ↩︎
2. For this last reason, I dislike reading non-fiction in Kindle format — I cannot easily annotate and engage with the text. Admittedly, my device is a bit dated and slow, so the highlighting and note taking features are not as responsive. The Kindle works fine for fiction. I also prefer not to read books on my iPad because I use this device so much for research and other reading. I get enough screen-time already. ↩︎

Photo credit: LH_4tography

Jack Kornfield writes about a woman on a mediation retreat in a redwood forest:

She awoke in the middle of the night startled, heart pounding, because she heard a loud growl just outside. She was sure it was a bear close by, perhaps dangerous. Turning on a small flashlight, she looked around and waited fearfully for the unknown growler to make another noise. At first it was quiet. Then a minute had passed, her stomach let out a loud growl. She realized that the bean soup from dinner was having its way with her digestive tract! The loud growl was herself.

Kornfield explains the benefits of mindfulness and the practice of noticing when we tell ourselves stories.

Sometimes our stories are useful, allowing us to structure the world and our identity. Many times the stories are objectively false and unhelpful.

In my profession, a common unhelpful story is: “I’m not good at technology.”

If you tell this story, here’s why you should let it go.

Painful origins

Where did this story come from? Maybe from difficult experiences working with poorly designed office technology, with inadequate training to understand it. Or maybe your teenage children mock you because you don’t understand Instagram, TikTok, etc!

The story is born of negative experiences and frustration. Don’t perpetuate this negativity by repeating the story.

Quieting a fixed mindset story

The construct of being “good” or not, is unhelpful. It reflects a fixed mindset, to use the framing of Carol Dweck. “I am good at …” is a statement about some quality, perceived to be inherent and immutable. Yet the quality is alterable.

So a better statement might be “I’ve not learned how to …”. And if one cares enough about this particular deficit, the next thought ought to be: “How can I learn it?" This reflects a growth mindset. This is a helpful story.

Focus on practice

Stepping back further, whether you’re “good” or not at technology — or anything — is seldom an accurate statement. Skill reflects effort. As the late Anders Ericsson revealed, “talent” is mostly a function of practice.

How much of your time and energy have you devoted to building technology knowledge and skills? Not enough? If you must tell yourself a story, perhaps this is the one to tell.

Look, I may be tempted to say “I’m good at technology.” But that wouldn’t be accurate either. I tinkered with computers as a child. I took an early interest in technology, meaning I’ve spent considerable time — maybe too much time — building these skills. To be clear: I take no credit for any this — it’s all a function of luck and how I’ve spent my time.¹

So, let’s stop — altogether — telling ourselves stories about our abilities and subjectively judging our skills. Instead, let’s realize the areas in life we’d like to improve on, and then devote the time and energy to realize those improvements.

This isn’t easy to do. But keep practicing.

1. Of course, it can also be dangerous for people to think they’re good at something when objectively they are not. We ought to vigilantly resist these stories too. ↩︎

We’ve entered our fifth month of shelter-in-place. The imperative of creating quiet space for work remains a challenge, like it does for so many.

The lack of civil jury trials remains the most remarkable change for my work. California courts are taking a scattershot approach to re-opening. Courts are hearing custodial criminal cases, emergency domestic issues, and other urgent matters. But for civil matters, the approach varies greatly. Alameda County is summoning jurors and allowing some to participate remotely, raising due process concerns. Los Angeles County will not set any more cases for trial in 2020 and is unlikely to call in jurors for civil cases this year. The Northern District of California suspended all jury trials yesterday.

Then there’s school. We learned this week that the California high school sports season is postponed until 2021. In urban California counties, any sort of in-person learning this fall looks increasingly unlikely. The impact this will have on kids, parents, and workers — and ultimately our economy — cannot be overstated. We missed our chance to knock down the virus this spring and summer, and now we’ll pay the price in many ways this fall.

Last week, we lost John Lewis. His principled life of non-violence transformed our country’s laws and still guides us through this period of social upheaval. With his passing, we lose a direct connection to the Civil Rights Era and the days of Jim Crow which preceded it. I link below to two of my favorite remembrances.

Writing

• Great Client Service Depends On Clarity And Trust, Rather Than Being Constantly Available
• Facial Recognition Technology — Mid-2020 Roundup: Keeping The Focus On Social Media Companies

Reading

• John Lewis on Love, Forgiveness, and the Seedbed of Personal Strength by Maria Popova.
• Ultralearning by Scott H. Young.
• Our Towns: A 100,000-Mile Journey Into The Heart Of America by James and Deborah Fallows. Jim and Deb are such great writers. I regret not reading this book when it was published in 2018, but their observations unexpectedly seem to offer more — not less — salience after all that’s happened.

Listening

• The Daily podcast. The Life And Legacy of John Lewis. Brent Staples, member of the New York Times editorial board, remembers Lewis and explains his philosophy of non-violent protest.
• Sam Harris Making Sense Podcast, Episode 211, The Nature of Human Nature, A Conversation with Robert Plomin. Professor Plomin, author of Blueprint: discusses the genetic influences on our behavior. A body of research shows that 50 percent of individual variance is due to our genes. The remaining influences on our personality — the nurture component — mostly comes from our “non-shared environment,” which we have little control over either.
• The Daily. The Vaccine Trust Problem New York Times health reporter Jan Hoffman talks about distrust of vaccines. The latest polling shows only 50 percent of Americans would be willing to get a coronavirus vaccine. To be effective, we need something on the order of 70 or 80 percent of people to get vaccinated.
• Mac PowerUsers, Episode 544, The Notes Roundup David Sparks and Stephen Hackett assess the many options for storing notes on your Apple devices, including a length discussion of Apple Notes. Unfortunately, no mention of two of my favorites: nvAlt and Liquidtext.
• Focused, Episode 104: Sleep and Sabbaticals David Sparks recounts his one-week “sabbatical.” Mike Schmitz tries contemporaneous journaling. And they discuss one of my favorite subjects: sleep.

Since I last wrote about it, people seem to be paying more attention to the dangers of facial recognition technology:

• Yesterday, two Illinois residents sued Amazon, Microsoft, and Alphabet (Google’s parent company) for allegedly violating the state’s biometric privacy law.
• Google was sued for allegedly violating this same Illinois law by failing “to obtain consent from anyone” when it introduced facial recognition to its cloud service for storing and sharing photos.
• Facebook settled a lawsuit alleging it misused its facial recognition technology.
• The EU considered a five-year ban on facial recognition technology.
• A number of cities have banned the municipal use of the technology.
• IBM wrote to Congress, stating it no longer provides general purpose facial recognition or analysis software.
• Amazon announced a one-year moratorium on police use of its facial recognition technology.
• Microsoft declared it will not sell facial recognition technology to police departments in the United States until a law is passed governing the technology.
• In the wake of the George Floyd killing and Black Lives Matters protests, an initial version of the Justice in Policing Act of 2020 would generally prohibit using facial recognition technology with police body cameras. A later draft bill would essentially ban the technology in policing altogether.

Much of the negative attention being paid to facial recognition technology has focused on engineering issues, such as algorithmic bias, and specifically the high error rates when identifying females and darker-skinned people, versus males and those with lighter-skin. This major issue deserves continued scrutiny.

At the same time, despite the lawsuits based on Illinois’s biometric law, the focus has moved away from how social media companies and other consumer-based companies are handling our images, the underlying data that makes facial recognition technology useful to the police.

Yet companies continue to capture, store, and share biometric data. Consumers may “consent” to sharing their images for certain limited purposes. But that data is being used now — and will be used in the future — for purposes far beyond what was contemplated when users ticked the box in a privacy disclosure (if they did at all).¹

This vast trove of data is the main reason police have renewed their interest in facial recognition technology — there’s enough data to actually make it useful in identifying criminal suspects.

So while the facial recognition technology needs to be improved and more heavily regulated, we also need to regulate how data is being gathered and treated in the first instance.

Our images ought to be protected to the same extent we do other personal identifying information, such as Social Security numbers, or certain financial information like credit card numbers.

Voluntary moratoriums and proposed bans may temporarily halt law enforcement’s use of the technology, at least in certain countries. But as companies continue to collect and store our data, and the utility of the technology increases, pressure will build to use it again.

1. The essential feature of this technology is its ability to assign a unique identifier to a previously unquantifiable object, our faces. We can thus link a human image to a field in a database. This link can be shared and cross-linked for whatever purpose. ↩︎

Update: On July 23, U.S. District Court Judge James Donato considered a revised proposed settlement in the Facebook case. The new amount would be $650 million — making it one of the largest ever class action settlements — but may still total less than $1,000 in statutory damages per claimant, the amount prescribed by the Illinois law. To notify potential class members, Facebook plans to use some its own “aggressive methods” for capturing user attention.

For those lawyers working remotely during the pandemic, the interruptions of the office have been replaced by those at home: kids, dogs, and flushing toilets.

Along with these distractions, some are experiencing an increased temptation to be “constantly available” for our clients. There are no office hours. Our workstations are laptops and mobile devices. Our workdays theoretically never end.

In a recent piece in American Lawyer, I read the sort of pledge lawyers often advertise to their clients even during normal times: “we will go anywhere, do anything, at any time …” Many lawyers indeed answer their phones and respond to emails at almost every hour. Many unflinchingly grind away for long days — including evenings, weekends, and holidays — and expect their colleagues to do the same. If anything, this instinct has grown stronger during the pandemic.

But good lawyers — whether working from home or elsewhere — do not have to be constantly available to represent their clients well and keep them informed.

In his book Deep Work, and recently on his podcast, Cal Newport argues that good customer service doesn’t depend on being constantly available, but rather on being clear in our communications and developing trust. Clients want to know what we’re doing and when they’ll get an update. If we impart this information clearly — and clients develop trust that matters are being handled well and reports will arrive on schedule — immediate communication is largely unnecessary.¹

This is no less true for lawyers and their clients. For example, if a client trusts you’re doing great work, and that you’ll email an update every Monday morning (and a comprehensive report every 90 days) those hastily arranged conference calls and urgent email exchanges become unnecessary. Lawyers can also deploy collaborative virtual workspaces, extranets, and other such “client portals” to provide updates in real time, giving clients direct access to the information they need.

Not being constantly available has salient benefits — for you, colleagues, and staff. Suffice to say, allowing yourself this space helps increases the depth of your thinking and improves the quality of your work-product, something all lawyers should want in their careers, and what clients want from their lawyers.

If this doesn’t move you, consider the downside to our attempt at being constantly available. A few years ago, I met with a senior-level lawyer at his office. He had a reputation for doing great legal work, but it was hard to understand how this was possible given his work environment. His mobile phone kept pinging. Email notifications on his desktop computer kept dinging. His office phone kept ringing. Two people knocked on his door, and he allowed them to come in and start talking about administrative issues.² In theory, some of these interruptions could have come from a new prospective client, or an existing client with an urgent problem. But all the distractions I observed were about trivial issues and certainly not time-sensitive. Sure, I may not have been the most compelling person to talk with, but this very experienced lawyer could barely maintain the thread of a face-to-face conversation. And our fragmented discussion was about the important client need he was supposed to be attending to at that moment!

The benefits of not being constantly available are hopefully obvious to most lawyers. So let’s consider why they still resist this in practice. Here are three common responses to my thesis, all of which fall apart upon close examination.

1. The response time fallacy. The erroneous argument that clients universally expect quick response times — mostly for larger societal reasons — so lawyers are compelled to do whatever it takes to meet these expectations, having no choice in the matter.

Many of us are indeed accustomed to quick response times, whether to reach a customer service representative by phone, or getting that Amazon package by next-day delivery.³ So, don’t clients expect and demand super-fast response times too? Of course there are exceptions, which I address below. But, generally, based on my experience at least, I don’t think so.

Again, assume you’re doing good work, your client has been getting periodic updates or has ready access to the information they need, and has come to trust your next delivery will be of similar high-quality and on-schedule. Where is the need for immediate communication?

“Rainmakers” will argue that being constantly available is critical to maintaining their client relationships, and thus bringing in the business. Availability is part of their draw, they argue, demonstrating how much they care, and as a practical matter ensuring they are available to accept a new matter when offered.

But if these folks are so good at maintaining relationships, must they rely on such problematic communication habits? Are their relationships so weak, that if they don’t immediately pick up the phone, cases will go to another firm?

I’m not arguing that lawyers and clients shouldn’t have any spontaneous calls and email exchanges. It’s more important than ever to stay connected. But these interactions don’t need to focus on status updates. Those should be covered in a predictable and comprehensive way, as I’ve described. That leaves conversations open to cover more interesting and fruitful topics, whether purely professional, or personal if appropriate.

Finally, remember clients are busy with their own work and need to focus too. If we’re constantly the source of more “pings,” that may hurt rather than help our relationships.

2. The zealous advocacy fallacy. The erroneous argument that lawyers have a duty, within the bounds of the law, to do everything we can for our clients. And “everything” includes being constantly available.

This argument confuses objectives with strategies and tactics. Our objective is to provide outstanding legal representation to our clients. But the strategies and tactics needed to achieve this objective are more nuanced. For the most part, these strategies and tactics do not include being constantly available.

For example, if your objective is to win your client’s case at trial, part of your strategy should be to deliver a lively opening statement that emotionally connects with the jury. Your tactics should include preparing early and iteratively honing your presentation so it’s well-conceived and artfully delivered. It does not mean pulling an all-nighter to answer emails and showing up to court bleary-eyed and cranky (with little capacity for empathy and subtle human expression).

There is no ethical mandate lawyers be constantly available, once we frame “zealous advocacy” as an objective, rather than treating it as a strategy or tactic.

3. The emergency fallacy. The erroneous argument that clients constantly face emergencies requiring our immediate attention.

Of course there are situations where an immediate response is necessary (e.g. your client is calling from jail). But in the vast majority of situations, a response later that day or the next day will suffice.

Also true, lawyers may need to prioritize quick communication during certain periods. Considering trial again, clients generally need frequent updates throughout the process. They’ll have urgent questions about trial developments, and they’ll need immediate answers. That’s the nature of trial work.⁴ I can imagine something similar happens in a transactional practice when a deal is closing. But these are discrete periods. We should not let the communication habits from these specific times become general practice.

So how to handle those unforeseen exceptions — the true client emergency?

Keep a “hotline” open. There should be some way for clients to reach you immediately and signal they need a quick response. This could literally be a phone line that someone is responsible for answering at all hours. Or it could be a separate email account with notifications set up. Think of something like Channel 16 on marine VHF radio, a frequency reserved for distress and safety calls only.

Regardless of the medium, the key is not clogging the channel with non-urgent communications. My emergency frequency happens to be text messaging and voicemail on my mobile phone. But I do very little texting, so when someone sends me a message I notice it and can respond quickly. I discourage people from texting me unless it requires my immediate response.

###

Every practice area is different. You may have compelling reasons for being constantly available, in which case you can ignore all I’ve said. But I urge you to consider whether your assessment is well-grounded, or just an assumption you’ve been conditioned to believe.

Similarly, if you believe your client relationships depend on your being constantly available, how do you know that? On what do you base this conclusion?

Finally — and this may be the thorniest question of all — but what unresolved personal issues might be driving your compulsion to be always-on and always available? In other words, is this about your clients, or about you?

With that, I wish you some productive hours at work and some enjoyable downtime later.

1. Newport also advocates set hours and a shut-down routine before ending the workday. ↩︎
2. Reducing these kinds of in-office distractions is one benefit of shelter-in-place and increased remote working. ↩︎
3. I’m old enough to remember the phrase “Please allow 6 to 8 weeks for delivery.” Somehow we survived. ↩︎
4. Getting back to my earlier example, the lawyer delivering the opening statement ought to delegate communication responsibilities so she can get adequate sleep. ↩︎

In a recent Deep Questions podcast, Cal Newport talks about general and specific training for deep work. His idea is we should improve our general skills for concentration and focus by doing such activities as reading, taking walks, and enjoying periods during the day without stimulation or distraction. We should also practice doing the specific challenging work within our particular field. Cal uses the analogy of a triathlete training generally for fitness and training specifically for swimming, biking, and running. Only by doing both the general and specific training do we maximize our ability to do deep work.

But Cal appears to discount — or at least quickly rush past — the notion that deep work requires a similar general foundation as sports. Here are five similar prerequisites to top performance:

1. Sleep. Adequate sleep is required for difficult cognitive tasks. There’s simply no way around this. Matthew Walker convinced me of this in his wonderful book Why We Sleep. If you don’t get enough sleep, forget about important work.
2. Nutrition. Like sleep, we need fuel to operate our brains and run other systems. We need adequate amounts of the right nutrients. We also need to avoid processed “food,” which interferes with the healthy functioning of our endocrine system.
3. Physical well-being. The healthier we are physically, the better we function mentally. We get the most done when we feel good. When I’ve had the flu or food poisoning, for instance, it was hard to read anything beyond easy fiction, and seemingly impossible to work. Feeling even mildly sick interferes with our ability to do our best work.
4. Space. As many have rediscovered during shelter-in-place, we need physical (and aural) space to work.
5. Mental ability. We need the ability to reach mental states of concentration and focus. While this resembles the general training Cal talks about, I’m thinking of something even more fundamental, like a mindfulness practice.[^1]

To extend Cal’s sports analogy, athletes need sufficient sleep, nutrition, and other mental and physical support to train. Actually, training without support is counterproductive — causing the body to breakdown, rather than build up.

But mental athletes need this support too. It’s also counterproductive to push ourselves cognitively without adequate support. This leads to stress, burnout, and frustration.

As a bonus, attending to our fundamental needs provides benefits beyond the ability to do deep work.

And these needs are achievable for most of us, in the sense that we either already know (or can learn) how to improve our sleep, nutrition, and so on. I’m not saying it’s easy to do these things, just that they aren’t a huge mystery either.

So, if you’re struggling to do deep work, is a fundamental need going unmet?

[^1]: Cal advocates “productive meditation.” He also recently pondered whether mindful mediation is a palliative to not living deeply, the implication being that a meditation practice is not so useful when we otherwise live well. While meditation can be healing (it can also open up old wounds and exacerbate existing problems), I would argue that mediation builds concentration skills and in other ways makes it easier to live deeply. There are other reasons to mediate too, of course.

I’m finishing my two-week trial of Basecamp’s new email platform Hey.

I’ve used Basecamp with my legal team for several years and it works great for internal communication, project management, and other collaborative aspects of our work.

So of course I needed to try Hey.[^1]

A platform, not a client

Basecamp classifies Hey as an email “platform,” rather than an email client. Hey is available via web browser, and apps for Mac, Windows, iOS, and Android.

Email by any name …

Not surprisingly, Hey the email app works a lot like the Hey feature on Basecamp. New messages land in your “Imbox” (like “New for You” in Basecamp). After you read them, they fall down to your “Previously Seen” list. You don’t need to archive or delete messages, they just flow down your list.

Problem, meet solution?

I’m a “Inbox 0” kind-of-person. I use a GTD-style method to process email, identifying next actions and capturing them in my OmniFocus task manager.

Up until recently, Gmail has worked pretty well for this. It’s easy to delete batches of emails by ticking them off from the inbox. I can copy URLs into my task manager. Given the generous storage limits, I can liberally archive messages for reference.

Like many, my problem is how much time I have to spend to manage an increasing volume of mail. I get a fair amount of newsletters and marketing materials. I have unsubscribed from the stuff I’m truly not interested in. I still get newsletters with occasionally useful information (e.g. new class offerings, school announcements, etc), which I need to manage. I’m getting a huge amount of political fundraising emails. I get digests from the Washington Post, The New York Times, NextDoor, LinkedIn, and a few others. This stuff really adds up and draws on my time.

If I take about twenty minutes a day, I can readily process this volume of email. The problem arises when I miss a day or two. Then I’m looking at hundreds of emails to process. I’ll need to devote a significant block of time to what is certainly not deep work.

Hey, the solution?

Hey’s idea is to filter the stream of email according to user preferences, rather than with an algorithm. Here’s how the process works:

You start by screening and approving all first-time senders. This first pass will spare you true spam and unwanted solicitations. You can change your mind about senders later, which is nice. Somewhat ambivalently, I screened out all those political fundraising emails.

For approved senders, you then designate which of three places the emails should land:

1. "The Imbox” — for actual people and any emails you don’t want to miss.
2. The Feed — for newsletters, digests, and marketing emails you might want to read. The messages are presented in a continuous scroll, newsfeed style. You can click on content and read it in place.[^2]
3. The Paper Trail — for transactional emails, like order confirmations and receipts.

For me, there is an unfortunate grey area between The Feed and The Paper Trail. Where do you put all the marketing emails that are mostly promotional in nature? My feeling is those don’t belong in The Feed because they aren’t informational and unlikely to be “read” in any normal sense of the word. On the other hand, these don’t relate to any transactions, so they don’t belong in the Paper Trail either. I realize adding yet a fourth “place” would add too much complexity to the system. I just may need to adjust my conception about what should be in a newsfeed.[^3]

Other notable features

Here’s some other useful features:

• Reply Later — Move messages to a separate pile, where you can find them when ready to draft a reply
• Set Aside — Set aside messages for quick reference (so they don’t get buried)
• Block trackers — Hey has a built-in spy blocker for privacy (and isn’t harvesting your emails for personal information)
• Controls for group threads and rewriting subject lines
• Bundling email from particular senders
• Large file sharing
• Ability to clip content and add notes to messages

Here’s a rundown of twenty key features. Basecamp cofounder Jason Fried has a product demonstration.

But the price, the price!

Many will balk at the $99 annual cost. Obviously, this seems expensive compared to free services like Gmail and Yahoo mail, or the cheap mailboxes offered by internet service providers or purchased through domain service providers.

But is Hey expensive compared to analogous services and apps? Website hosting costs about the same. Apple’s 2TB iCloud storage plan costs slightly more. An Apple Music family subscription costs significantly more. Quality app subscriptions are usually somewhere in the double digits (e.g. Evernote, MindNode, Ulysses, OmniFocus, etc). Depending on where you live, you might pay this monthly for good broadband internet service.

So, if email is going well for you, this will feel like too much to pay. But if Hey solves some of your email problems, the price seems right.

Pros and cons and final thoughts

Pros:

• Well designed and easy to use
• Supports a realistic email workflow
• Permanent URLs for linking emails (like to notes in a task manager)
• More private and helps protect personal information
• Established and trustworthy developer

Cons:

• No way (yet) to use custom domains
• Ambiguity between The Feed versus The Paper Trail
• No share button in iOS
• Cost

I’ve bought a one-year subscription. I’m currently forwarding email from my Gmail account and have begun to (still hesitantly) reply from and compose new emails from Hey.

So how is it going for me?

This week, I noticed I’m spending about half my usual time managing email, and that includes me fiddling around with features and experimenting with workflows. Spending too much time managing my email was the problem, and Hey may indeed be the solution.

What are your email pain points? Have you tried Hey or any other alternatives?

1. Because Basecamp works so well, my work email is under control. I’m only considering Hey for my personal email.
2. Unfortunately, since the thread is in reverse chronological order (newest on top), it’s hard to know when you’ve finished reading your feed, besides realizing that something looks familiar. There’s no way I can find to track where you left off. If reading your feed is purely optional, that seems fine. But it doesn’t work as well for people, like me, who might want to know when they’ve reviewed everything.
3. Hey also has a label feature. So I have a Read-Review label I apply to those emails that need to be read later, because of their length, importance, or other reasons. I can easily come back to these in a separate reading session.

Yesterday, LiquidText launched their MacOS app, following on the heels of their Windows app and upgraded iPadOS app. The download is free. An in-app purchase of the “Pro” features enables “Ink” and features for using multiple documents.

The one thing missing from this LiquidText ecosystem is a way to sync projects across platforms. They forecast such a system this fall. Presumably this service will also allow teams to collaborate on projects. LiquidText files are undoubtedly complicated and hard to sync without corrupting them. Though it seems syncing projects now with iCloud or Dropbox might be possible.

For now, I edit only on my iPad and export the project file to my Mac for reference only. If I needed to edit the file on my Mac, I could export and roundtrip it back to the iPad, but I prefer to avoid having multiple active versions.

LiquidText is the best way to get through the metaphorical “stack” of documents in a case. My workflow looks like this:

1. Organize the documents in a folder with good file names. I will work with a paralegal on this phase. The files are saved in a Citrix Files folder so they can be synced with multiple devices and ultimately with experts and opposing counsel.
2. I copy the files to a folder in iCloud Drive.
3. I browse the files with the Files app on my iPad. This is a good way to get through a lot of documents fast because you can scroll down through the pages and swipe left to move to the next file. However, when you close the file, you need to remember where you’re at because Files lacks a good indicator of where you are in your list of documents.
4. When I identify a document that needs careful analysis, I switch to LiquidText. With the correct project open, I click the Add Documents button and select Document File. The last file I opened should be at the top in the Recent view. I open the file and start annotating and pulling excerpts into my workspace.
5. When closing the LiquidText Project, select Send to save the annotations back to the original source PDF in the iCloud folder, assuming that would be useful to you. Some people may prefer to keep only “clean” copies. For me, that’s what the Citrix File folder is for.

With this method, I’m finding I can review a large number of files much more quickly than with other methods. Most importantly, I know I’m rigorously capturing all my thoughts while leaving breadcrumbs back to the original source material.

Looking back over the Workspace is a great way to build reports, prepare for a deposition, and identify potential exhibits.

Assuming you work at a firm or with team members, I recommend regularly exporting the project as a PDF and saving it in the right spot, to ensure your work is captured and usable by others.

What workflow are you using to intensely analyze documents?