Friday, September 20, 2013

The Paper Trail (Mom Wanted A Doctor: Or, Why You Maybe Shouldn't Go To Law School)

Mom Wanted A Doctor is a column examining the funny or at least interesting or possibly billable? OF COURSE IT'S BILLABLE aspects of being a lawyer.  Today's is:

The Paper Trail.

I have in my office a suit of armor, a $23 bag of jellybeans, many wind-up toys, a fish:

and very few paper files.

That was not always the case.  I used to have lots and lots and lots of paper files because it used to be that society demanded that people use paper to communicate things that were best commemorated in a way that we think of as "permanent" but which can be destroyed by a cup of coffee.

Used to be.

When law began, or so I like to imagine, it was practiced by guys who wrote longhand, on sheepskin, important phrases that sounded great:  "It is emphatically the province and duty of the courts..." or at least something about copyright infringement by having South Park do a parody of "What What In The Butt," which is an actual case that had to actually be decided by actual judges paid for by your actual dollars.  SOCIALISM!

But I digress.  The point is that back in the olden days, which for purposes of this essay is anything before about 1995, "law" was written by hand, or by typewriter, or by dictation, on actual paper with actual ink, which paper was then copied and mailed, by hand -- carried from the judge's bench to the waiting hands of an attorney by a dedicated government servant or at least an underpaid surly Fed-Ex guy whose only consolation was that this beats "Circuit City" for a job -- and then carried further, to be bound into books which were then stored in giant shelves at law schools and in courthouses and the fancier law offices, the kind where the partners' desks sit amidst a span of square footage that is larger than all but two of the places I have lived in my life, the kind of law offices where people who don't hire people like me spend 16 hours a day including Sundays, and are miserable, and generally balding, because of it.

I am balding, a little, but am not miserable. I have a suit of armor and all those toys.  But I digress again.

Back then -- pre-1995, when giants like Abe Lincoln practiced law -- lawyers had to write things on paper and make lots and lots and lots of copies.  There were copies to go to the court and copies to go to the clerk and copies to the other side and when you got your copies from the other side you had to make copies to send to the client and you always keep a copy of everything you send to the client, so that a simple motion would end up using a forested area roughly the size of West Virginia.

Those papers would all be put into other paper -- file folders kept in larger file folders and then in 'red ropes,' which are even larger, accordion-style file folders which were then put into bankers' boxes, which are made of even thicker, stronger, more oppressive paper, the end result being that my office, and many lawyers' offices, looked like it belonged to that Perfesser character on that cartoon about birds. "Shoe," I just remembered it's called.

It's funny, because they're birds! No, wait, that's not right. 

Working with all that paper was depressing: my office looked nothing like the offices of such famous lawyers as, say, that partner guy on "Legally Blonde." Not least because while I have a suit of armor, I do not have a Reese Witherspoon. (TM!).  My office was filled with papers: stacked up, and in files and in baskets for me to read and baskets for people to pick up and distribute to other people and on my desk and in my hands and AIIEEEEEE! Sorry, flashback.

The point is, there was a lot of paper and it was messy and it was time-consuming to keep it from being messier and things looked like junk piles AND it was difficult to find what you were looking for.  Let's say you (I) were on the phone and you (you) asked me (me) to look at a letter I (I) wrote you a few months back.  That letter would be in a stack of papers about an inch thick, in a file folder nestled among 5, 12, 15 other file folders that was tucked into 1 or 3 or one THIRTY-ONE no I'm not kidding BOXES, and I'd have to go find it.

Which was a lot of work, which meant I'd rather sue you than go get that letter, which is why there were so many lawsuits in the past.  I assume. I don't know why other people sue other people.  I know why I sue other people: because I get paid to do so.

With computers, and electronic storage, the end of that era started coming around because then, if you and I had that same conversation -- why are we having it again? -- I would simply look on my computer and find it and call up an 'image' of the letter which I could reprint and send you if I wanted to.

TIP FOR NONLAWYERS: Nonlawyers are always complaining to people about 'the original' this and the 'wet-ink' that, that latter one being a phrase I hate.  But the rule in court is that copies are every bit as admissible, genuine, believable, and hence case-losing-able, as the 'original,' a rule that makes sense because of the definition of the word "copy."  Look it up. You're not paying me.  Copies of originals in fact are only not admissible if the person objecting can give a good reason why a copy shouldn't be treated like the original.

FUN FACT FOR NONLAWYERS: I don't even need the actual paper contract that my client signed to prove my client signed a paper contract.  So I DO NOT EVEN NEED A COPY OF YOUR PAPER to win.  It's like sorcery!

As I got better and better at using these "Computing Machines," or, as I understand some call them, "smartphones", I realized I needed fewer and fewer actual papers in my actual office or in my actual hands, and I have spent the last year or so trying very very hard to reduce the number of times my hands must touch the leftover corpses of dead trees.

Or did you forget that's what paper is? It's a piece of a corpse of a living thing on which you tend to draw doodles.  (I do mostly triangles, for some reason.)

Which has brought me to the point where I am today: I have an almost-paperless office, and the few stray bits of paper that make it into my office -- letters from people who think it is still 1882, faxes from people who know that electronic transmission of information is possible but who haven't yet realized that means email is a thing, too -- are almost immediately scanned into a computer for me to read and work with and the original paper spirited off to The Faraway Mystical Realm Of Offsite Storage.  In my inbox, off to the left of my desk, by the end of each day I usually have just a few papers that have been dropped off, and most, if not all, of those, are from courts.

(One of the papers in my inbox is a drawing, made by Mr Bunches, of "Harry The Helpful Horse." I leave THAT there because (A) it serves as the bottom of the inbox, telling me what things I have looked at and what things I have not: things I have looked at but not dealt with, yet,go UNDER Harry, while things atop Harry need some attention.  As I go through the inbox each day, Harry helpfully tells me how far down I need to root.)

But most of the papers are from courts -- judges and clerks writing to me, and other people involved in the case, to deliver information in the least efficient way possible.  Or at least the least efficient way still existing. If we were to resurrect the Pony Express and carrier pigeons, regular US Mail would seem efficient and modern. -Ish.

Judges and their clerks are still wedded to paper.  It is as if the counties which the judges serve have stock in tree farms, or sawmills, or whatever part of the chain of paper production YOU find most romantic to associate with this essay.  Office supply stores, perhaps.

Judges send paper notices to tell us lawyers when we must be there in court, or when we must phone the Court.  Judges and clerks require that we submit our arguments on paper to them, with paper copies to the other side.  Courts then take all that paper and consider it and then send us more paper to tell us what they think of it all.  Then we file more paper with the courts to tell them what we think of what they thought. (Politely, of course.)

ASIDE:  Have you ever stopped to consider that the phrase "With all due respect" actually implies that you have no respect, and are merely paying lip service to the idea that you are supposed to respect the person you are claiming to address with the aforementioned complete amount of respect that personage is owed? I try not to say that phrase. 
At the appellate level, the appellate level being the part of the Courts you only reach when something has gone terribly wrong for someone, things are even worse, in that at the appellate level you can't even just file one copy of all that paper.

When someone appeals a decision made in their case, here is all the paper that is used:

1. The person appealing files at least three different sheets of paper in two different courts. (Plus a cover letter! Don't forget that!)

2. The clerk of the court you are getting out of to appeal takes every single sheet of paper including the one you just filed, and sends it to the Clerk of the Court of Appeals.

3.  If you didn't have enough paper already, you need to use MORE paper to order it, asking the court reporters to prepare transcripts of everything that was said in all the important hearings in court, and filing THAT paper, too, and giving paper copies of all that paper to the lawyers.

4.  The appellate court will then issue a few pieces of paper itself, such as a document telling you what caption, or heading, should be on all papers you send it.

5.  One side then files their "brief," which it never is, and an appendix, containing copies of many of the papers that have already been filed with the Court.  The other side gets to respond, and must re-file any papers they think the Court should particularly look at but which haven't already been submitted in triplicate.  The original party then gets to file MORE arguments.

6.  Finally, the Court will issue some paper.

Here is the kicker: when you file things at an appellate court in Wisconsin, you must also electronically file that paper, so there would be no need to file both a paper copy and the electronic copy, right? Right.  But you still have to do that.

NO WAIT HERE IS THE KICKER: Not only do you file an electronic version that is available online and anyone can read it anywhere in the world right there on their computer screen (or, true, print it out on paper and read it) but in Wisconsin you must file anywhere between THREE and TEN copies of the thing you just electronically filed with the Court.

Most 'briefs' are about 25-30 pages long, so every court case argued in a Wisconsin appellate court adds about 1,000 pieces of actual physical paper to an already voluminous court file.

I tried to find out how many cases a year are decided by Wisconsin courts.  I couldn't find a number, so let's just say it's a lot.

(To top it off, they still bind all those decisions into books, later on, sometimes several sets, even though the opinions, delivered on paper copies to the lawyers, are also available electronically.)

I tried, one day, to think about the reason for filing that many copies.  The only answer I could come up with is that the appellate judges and justices didn't want to have to print their own stuff off their own computers, and didn't want to read the things on computers.  That's a reason, I suppose.  Not a good one.  But a reason.

Is paper actually more permanent than electronic records? Fire versus power outage, I'm not betting on either side to lose, really, although "power outage" sounds more temporary.

Sometimes, I look around my office, with its jellybeans and armor suits and Fish the fish swimming around in his tiny tank and picture the mountainous stacks of paper that must be accumulating.  I like to picture them growing higher and higher, rather than sprawling out.  As impressive as an array of papers spread out over an area the size of Kansas might be, in my mind, the idea of not one, not two, but ten, twenty, thirty, fifty, towers of papers growing ever higher -- precariously, dangerous-looking but somehow not, like how staircases always looked in Dr Seuss books -- and ever higher, a testament to... nothing? To how we used to do things?


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