Montaigne’s analysis mirrors the traditional view (famously set forth by K.N. Llewellyn in “The Bramble Bush “) of what makes for a good legal education: The study of law may begin with the acquisition of a body of knowledge, but it must extend to the development of a mode of thinking. The importance of developing and applying judgment does not end with law school. Lawyers who exhibit good judgment distinguish themselves in the profession and the market. They sell their advice. Advice that consistently proves prescient and sagacious commands a high price.
Time and Space
The formation and the application of good judgment require time. Deep and careful thought cannot be rushed; full rather than continuous partial attention forms a prerequisite for the application of good judgment. Similarly, the cultivation of good judgment depends on a time-consuming and never-ending process of self-education. A lawyer who would preserve and hone his or her judgment cannot afford to abandon the serious study of the arts and sciences, society and politics, literature and history. Along with Pierre Charron, the lawyer in search of judgment must affirm that “the true science and study of man is man,” and with that affirmation must commit to living a full and rich life beyond the immediate demands of the practice or the BlackBerry. To engage in such study and to live such a life demands time and space.
In his recent biography of Franklin Delano Roosevelt, Jean Edward Smith discusses how even in the midst of World War II, Roosevelt refused to allow his judgment to be impaired by a crisis mentality. To ensure that he had the time and space to exercise his judgment, he sometimes took to the sea “to refresh and regroup.” In a footnote, Smith shares Roosevelt’s own reflections on this process:
“I try to get away a couple of times a year on these short trips on salt water,” said Roosevelt in his 1941 Jackson Day message to the Democratic faithful. “In Washington the working day of the President averages about fifteen hours. But at sea the radio messages and the occasional pouch of mail reduce official work to not more than two or three hours a day.
“So there is a chance for a bit of sunshine or a wetted line, or a biography or detective story or a nap after lunch. Above all there is the opportunity for thinking things through � for differentiating between principles and methods, between the really big things of life and those other things of the moment which may seem all-important today and are forgotten in a month.” 10 “Public Papers and Addresses of Franklin D. Roosevelt,” 82-83, Samuel I. Rosenman, ed. (New York: Harper & Brothers, 1950).
Roosevelt took to sea to create the time and space for the cultivation of and the exercise of judgment. He created a physical barrier between himself and the incessant demands for immediate decisions on critical matters. Today’s technology defeats such barriers. Some form of a BlackBerry works everywhere. To overcome that curse within a blessing, lawyers need to learn to set limits on responsiveness.
To maintain and refresh the faculty of judgment, we must occasionally withdraw from the hurly-burly, taking the time to nurture our intellects by exercising our mental faculties broadly and deeply over a range of issues not encountered in our working lives. Extending Montaigne’s analogy, by thus pollinating our minds with a variety of experience and knowledge, we create the conditions necessary for the formation of judgment. Perhaps we can’t escape the BlackBerry, but we can follow Roosevelt’s example by turning it off to fish, to read books and to think.
By cultivating the faculty of judgment, we position ourselves to exercise that judgment on behalf of our clients. But here again we must resist the BlackBerry culture. The exercise of good judgment also requires time and space. When a client needs a considered opinion � and it sometimes seems that the need for careful consideration directly correlates with the pressure for an immediate response � a snap answer seldom is the best answer. Sometimes the best thing one can do is to go off and think hard and long. The process of really thinking a problem through requires significant time in a place without distractions. By definition, such a place cannot exist within the BlackBerry culture. So how can lawyers resist � or briefly renounce � the BlackBerry culture to best serve clients while still keeping them happy? For that I have three suggestions.
* Show respect: In a world of instantaneous communication, failure to respond offends, in large part, because it suggests a lack of respect. To demonstrate respect, an immediate response may be required, but an immediate ill-considered answer isn’t. Try instead an immediate response to the effect that you understand the importance of the problem and will, therefore, give it the time and attention that it warrants.
* Reduce anxiety: The BlackBerry Culture takes the Age of Anxiety to a new level. For a surprising number of clients, every second that elapses from the time he or she hits “send” to the time a response appears in the inbox creates stomach-churning tension. The best way to deal with this is to lay out a response plan. When significant time is required to develop a reasoned and thoughtful response, establish and follow “just checking in” milestones. This will create a framework and a palpable sense of progress, which in turn will help keep anxiety at bay.
* Explain the importance of good judgment: Take the time to educate clients about your philosophy regarding the practice of law including how the cultivation and application of judgment forms an integral part of professional excellence. Frankly acknowledge the tension with the BlackBerry culture. Discuss the implications for conveying respect and controlling anxiety.
However worthwhile this process of forming and applying good judgment may be in theory, the client will judge by results. Having taken the time required for good judgment, the value of that judgment must be made manifest. While substance matters most, presentation is not irrelevant: Make sure that long-awaited response is coherent, pithy and compelling. In the sense of creating heightened expectations, renouncing the BlackBerry culture only increases the pressure. But at least the pressure for excellence tends to produce something worth having, while succumbing to the pressure for an arbitrarily quick response tends to produce nothing more than BlackBerry mania.
Gregory S. Gallopoulos is the managing partner of Jenner & Block in Chicago and is a member of the litigation department. He is co-chairman of the tax controversy practice and a member of the government contracts and tax practices. This article originally appeared on Law.com, a Texas Lawyer affiliate.
