Carolyn Elefant has started  an interesting debate over at MyShingle about the use and abuse of lawyer listserves.  Before anyone rips my lungs out, I concede that my experience with listserves is limited, and that others will have their own experiences which may be completely different.  But since this is my post, I get to write about my experiences.  If you want to write about yours, feel free to comment below, or start your own friggin’ blawg.  But don’t tell me that my experiences are wrong because yours are different.

There are two very divided points of view about these techno-communities where lawyers can maintain a virtual conversation with a thousand of their closest colleagues.  Carolyn took the view that listserves offer a mechanism to improve the competency of the bar by seeking and obtaining help from a broad group of fellow lawyers, thus drawing on the great breadth of experience out there to improve one’s own knowledge base and to aid one’s clients.  So far, so good.

But a comment by attorney  Steve Lombardi raises the uglier downside to this otherwise rosey scenario. 

Lawyers are busy and no lawyer has the same experiences as any other lawyer. Younger, older, more trial experience, different life experiences, different success in the court room, some are better at talking with people and attract more clients, personal interests are different, IQ’s are higher or lower, some have a better work ethic, others are just plain lazy but want the same level of success as those who work hard. You don’t have to be the smartest lawyer to win a case, but you do have to work hard.

The lawyers I’m referring to who misuse the LISTSERV are lawyers with enough experience to know better. They are usually on their own, sole practitioners with a history of taking cases they have no business taking and who regularly settle cases without ever trying one. They advertise themselves as being trial lawyers but have very little trial experience. I once heard a skilled trial lawyer say, “Anyone can settle a million dollar case for one hundred thousand dollars.” Those are the lawyers I’m referring too.

While Steve’s criticism is directed at personal injury lawyers, it holds true for all.  Listserves don’t exist only for the competent lawyers, looking for that one tidbit of information that they were unable to locate after exhaustive research.  They exist for the lazy and incompetent as well, taking on cases that they are grossly unqualified to handle, and seeking a competent lawyer to show them the way so that they can keep the fee while hopefully providing a sufficient facade of competency to sneak past their client.

Some of the queries one sees on a listserv are shocking in their naivety.  Matters that could be easily discovered through minimal research are now put out for the quick and dirty answer of others.  Indeed, matters that any competent lawyer should already know are floated on listserves.  Regularly.  It is scary to think that these are lawyers entrusted to handle people’s lives when they don’t know the most basic aspects of their job.

Before listserves, we did something called research.  We did this because it was what lawyers did to find answers to questions.  We went to primary sources, read and read and read, and learned what we needed to know.  We would often seek out colleagues for their views, but it was never a substitute for doing our own work.  That’s what was expected of us by our clients.  That’s what we expected of ourselves. 

The listserv today has become, for many, a wholesale substitute for effort.  Why spend the time researching when you can type up a short email, put it out on the listserv, and enjoy the experience of others.  Why reinvent the wheel?  The answer is twofold.

First, because there is no assurance that the answers you receive on a listserv are correct.  A recurring theme from those who so dearly love listserves are answers that begin with, “I really don’t know anything about this, but . . .”  They then pontificate (often inaccurately) on a subject that they know nothing, and have admitted they know nothing, about.  Worse yet are the ones who don’t admit ignorance, but clearly are, based upon their responses.  Why post answers to questions when you have no clue what you’re writing about?  The love of posting, and the joy of being a laboring oar in the listserv community. 

Some more experienced lawyers post responses to stupid questions as a marketing tool.  If they create the appearance of expertise, maybe the ignorant will send them work when they get in over their heads.  I don’t know if this happens, since I don’t do it, but by marketing themselves in this fashion they enable incompetence and laziness.  It strikes me as a poor trade-off, enabling bad lawyers in the hope of a referral fee.

Others have argued that helping the incompetent on listserves is not to enable lazy or incompetent lawyers, but to help their poor clients who may have made a poor choice, but shouldn’t suffer imprisonment for it.  While this position has some superficial appeal, it strikes me as ultimately counterproductive.  This is a “give a man a fish” solution rather than a ‘teach a man to fish” one.  While it may help on a particular point, it still leaves the incompetent lawyer incompetent. 

There are many exceptionally good uses for listserves.  The dissemination of news, information about individuals that should be spread amongst the group and questions on sophisticated, nuanced issues of law after the basic research has been thoroughly completed.  But not as a crutch for the lazy or incompetent.

Steve Lombardi’s solution to the downside of listserves is better supervision of posting.  My experience is that everybody hates the listserv “school marm,” telling people what they should and should not post.  Regardless of what is done, there will always be a group to swarm all over the poor supervisor about how wrong they are.  Who needs this?  Everybody wants to be loved by the others on the listserv, or they just stay away altogether.  I don;t think supervision is viable unless its a paid, controlled listserv, and most are voluntary and association-related so that no one has the final authority.  Besides, telling lawyers what they can say amongst themselves is like herding cats.  With fangs.

The most potent force for control over listserves should be the knowledge that by asking stupid, lazy questions, a lawyer reveals to a very large group of his peers that he is a moron.  You would think that this would inhibit some from using the listserv as a primary research tool for people who should have never passed the bar exam.  Unfortunately, it hasn’t worked that way.  Quite the contrary, their true peers, the other lawyers enjoying the benefit of being lazy and incompetent, are busy empowering these types of questions by posting similarly brilliant responses like, “I don’t know nothing about birthin’ no babies, but . . .” 

So, defendants who are reading this, is your lawyer busy “researching” your case on some listserv?