November 1, 2016 § 8 Comments
Has this ever happened to you? You have arrived at the head of the line at Wendy’s (or your customary fast-food joint):
You: I would like a small number one combo to go; hold the cheese and onions.
Wendy: Number one combo. Here or to go?
You: To go. And did you get the no cheese and onions?
Wendy: Number one combo. Large or small?
You: Uh, small. And no cheese and onions, right?
Wendy: You want no cheese and onions?
You: Right. No cheese and onions.
Wendy: Number one combo. No cheese and onions. Small. Here or to go?
[If you weren’t paying close attention, you might want to read through that again slowly]
When you get to your vehicle, odds are 3-1 that there is either cheese or onions, or both, on your burger. Happens all the time.
Not trying to pick on Wendy’s. Or fast-food joints in general. Or the people who work there. It’s just a cultural thing nowadays that people are used to getting their information in small, rapid snippets. They are accustomed to doing three or four things all at once, not doing any of them particularly accurately. They simply are not used at all to pausing to gather enough information and apply a cognitive process to it. That takes too much time and effort.
And our modern apparatuses facilitate this. I have sat at a table in a nice restaurant and observed all four people at a neighboring table studying their smart phones as if they were sacred idols. No conversation. No interaction. When the waiter asks if they are ready to order the scramble is on to pick something off the menu so they can get back to their devices. At home, how many of us spend our evenings staring at the tv screen, or dabbling on a laptop or tablet while the tv is going, or doing all of that and talking on the phone — all while someone else sits across the room doing the same? None of this is paying attention, by the way; it’s scattering attention to render it completely ineffective.
This lack of attention thing seeps into your practice via your clients. You get something like this from your clients all the time: “You said the judge would definitely find my ex in contempt for not allowing me visitation” when you know good and well you never said any such thing. People don’t take time to hear and process.
Oh, and you and your office staff are not immune. You proofread discovery while answering email while returning phone calls and giving directions to office staff. You can’t pay attention to one thing when your attention is divided four ways.
It seems to work so well in everyday life, though. People seem to survive and even thrive while juggling three different devices and information sources.
But what works in pop culture and even in day-to-day business does not necessarily work well at all in the law.
Not paying attention is a luxury in which no one in the law or the judiciary can afford to indulge. Too much is at stake. The law requires precision in language, in thought, and in writing. Poorly worded questioning will allow a slick witness to slither away from the truth, or, worse, will deprive you of a crucial point in the record for appeal. Your unthoughtful arguments will be picked apart by counsel opposite and the court. A sloppily drafted contract or PSA will wind your client back in court nine times out of ten.
Lawyers who have been here in the Far East of Mississippi can confirm that I don’t do telephone conferences except in the most extreme situations. That’s because if you are sitting in my court room or in my office I can observe whether you are paying attention and whether I am making contact with gray matter. Over the phone, I don’t know that; I don’t know that you aren’t practicing your putting, or texting, or working crossword puzzles, or playing Minecraft while I am instructing how I want the order drawn.
Paying attention may be our most essential survival skill. A wildebeest that does not pay attention, for example, gets to enjoy being a lion’s dinner. It certainly applies in the law. Pay attention: the life you save may be your own.