I'm not advocating for the destruction of the LISTSERV, quite the opposite. What I am advocating for is for better mentoring and that will require trial lawyer associations that operate LISTSERV's to do a better job of monitoring and policing them so as not to discourage more experience lawyers who then quit. Because without those more experienced lawyers any mentoring younger lawyers receive is half-baked.
Carolyn Elefant writes for MyShingle.com and has written about an earlier post of mine having to do with misuse and abuse of the LISTSERV. She sees trial lawyer LISTSERV as very helpful to mentoring less experienced lawyers and to some extent that is supposed to be the goal of the LISTSERV, but unfortunately it's not the reality of how they are being used.
She points out that blogs and LISTSERV "have helped improve my competency as a lawyer". Okay maybe it has helped her but with what aspect of practicing law? Choosing software? Being reminded as to when a committee meets? She points out two issues that include "to avert unwanted conflicts and difficult clients." Well that's nice but it doesn't deal with obtaining legal advice that a listserv member gets and then passes on to a client who then relies on it. What my blog was about was not fluff, but meat-and-potato issues of legal theory and advice that clients ultimately rely on. My blog was about a culture that is developing that is potentially harmful to clients who rely on shoddy advice because more experienced lawyers are being driven away. And in critiquing my blog she's actually demonstrated one of the points I make: that there is too much fluff and not enough substance to the discussions.
The experienced lawyers, those who have practiced for centuries aren't a part of most LISTSERV's or if they are they soon disenfranchise themselves from the list. I've not interviewed those lawyers so I'm guessing but after 26 years of practicing law I believe I'm pretty familiar with them, know how busy they are and what it is about the LISTSERV operation that turns them off.
First, there's too much garbage discussed. I'm not picking on any one listserv because I belong to several. There are diseases common to each that infects the culture. There is the advice given in two sentences about a substantive legal issue that is wrong or written in such a way that it can be misleading to the recipient. Lawyers who have had the benefit of good mentoring know from working in a law office that questions, answers, clarification being sought, followed by a review of the legal documents by more experienced lawyers is the cornerstone of good mentoring. It's a process and not a quick fix. Good mentoring leads to excellent trial lawyer practice skills. The opposite is also true. Here are some of the more prevalent problems that infect the process of mentoring.
The I'm Inexperienced but Greedy Post: Here are the facts of my case in six sentences, now tell me what the case is worth.
The Lazy-Lawyer Post: Hey I'm too lazy to do any research or I waited until the statute of limitations is about to run on my client's case so who has a fully drafted Petition they can send to me so I don't have to do any research and think?
The Miss Congeniality Post: The email post that 100 listserv lawyers have to open that says, "Thank you!"
Back Slapper's post: The post that says, "Hey aren't we on the right side and the other guys are evil."
The In-Way-Over-Your-Head Post: The post that describes confidential information in a general way and asks all who would respond to do so privately. Let's face it if you need a private response because your opponent is on the same listserv, you shouldn't be posting it because they will surely recognize the facts of the case and know you're stuck or painted into a corner. The posted question that clearly shows you are way over you head in the case described.
The We have tickets for sale for the civic center, who wants to buy them?
The Political Issues Post: Have you heard about this political issue?
The Oh-Shit! Post: Sorry, that last post was meant to be sent privately.
The Am I Gonna Get Sued for Defamation? Post: That last post was inadvertently sent, please don't open it! Delete only!
How much of this do you think the busy experienced lawyers have time for? Take one hundred lawyers on a Listserv and allow half of them to send one post per day, and 25 respond to three posts and now you have, two send "thank you" posts and one is trying to sell tickets and that means any member has to open 128 emails for that one day. Do that five days in a row and there are 640 emails to open for that week. You can never assume the subject line is about the email because some lawyers don't understand they are responsible to change it and make it germane to the subject.
One of my points that Elefant misses is that without rules and a person to enforce them the current culture drives away the most competent lawyers whose advice she would most benefit from hearing.
Another point is that the advice being given is not necessarily the best advice that the more competent lawyers would give. Sure there are those lawyers trolling for cases using quick advice as bait, but ask yourself, "Is that cheap advice really the right advice or even good advice?" If you're so inexperienced that you don't know what to do shouldn't you be asking the more experienced lawyers what to do? And when the more experience lawyers see the troller's advice they run the other way; already too busy to deal with another 100 emails a day they opt out rather than get into a debate about a subject the poster has no business giving advice about.
I'm not advocating for the destruction of the LISTSERV, quite the opposite. What I am advocating for is for better mentoring and that will require trial lawyer associations that operate LISTSERV's to do a better job of monitoring and policing them so as not to discourage more experience lawyers who then quit. Because without participation of the more experienced lawyers, the mentoring younger lawyers receive may be having the opposite effect than what is intended.