Let’s face it — you’re addicted to surfing the net instead of working on those crappy cases that keep plopping on your desk. That’s ok — who the hail cares when discovery ends anyway?
But I’ll tell what is starting to annoy me — this incessant need to check Crackberries at socially inappropriate times. You know who you are:
You check emails in the elevator. At lunch. At the gym. Driving home. While in bed. At the store. While on the phone. In movie theaters. At sporting events. During conversations with your spouse. On conference calls with clients. Waiting in court for the judge. In the bathroom. At a deposition. Yes, you have a problem:
“CrackBerry” was the 2006 Webster’s New World College Dictionary “New Word of the Year.” We are addicted to these devices. Yeah, we say, but we are addicted to air and water and food; this is a natural addiction, a good addiction. Our BlackBerrys keep us connected. We are in a service business and these wonderful devices let us render service to our clients in real time, every waking moment. But here is a caution — when we use them at a deposition to check and return and compose e-mails, we may be violating ethical rules.
BLACKBERRY ADDICTION MAY IMPACT OUR DILIGENCE
We did not come to this view on our own; we were too busy sending and receiving messages on our BlackBerrys. We were provoked to thought by David Schott of Alton, Ill., who, in the May 2008 Illinois State Bar Association Trial Briefs suggests — well, no, he more than suggests, he flat out opines — that the use of a BlackBerry during a deposition is a violation of an attorney’s duties to use reasonable diligence and charge reasonable fees. And with David’s wake-up call, we have temporarily sobered up from our BlackBerry stupor to think this through. Join us. Come on, we know how hard it is. Put your BlackBerry down and rest your thumbs, just for a minute. Read on and think with us.
Now, part of the problem is not ethics but manners. We don’t belong to country clubs, but we understand that most of them ban BlackBerrys and cell phones. (That isn’t the reason we don’t belong — we just don’t play the game.) But why? Cell phones we easily understand — an untimely ring or conversation could actually distract a golfer. But silent thumbing?
Well, these devices are banned because it is bad form, it is rude, to attend to business when one ought to be enjoying one’s time in a sand trap. And if it is rude on a golf course, how about in a courtroom? How many judges will permit you to whip out your BlackBerry during live testimony at a trial? Most judges ban BlackBerrys not out of concern for ethical considerations, but because their use is an affront to the decorum of the court.
And since a deposition is essentially an extension of the courtroom, are the rules any different? Well, yes. There’s no one wearing a robe at the deposition. So is it rude to use a BlackBerry at a deposition? Maybe. Probably. But so what? Get over it. But is it unethical?
You have seen this guy. Maybe you are this guy. The guy who interrupts the deposition to have a question and answer re-read because he didn’t hear it. Everyone there knows he didn’t hear it because he was distracted by the e-mails he was reading and sending — a self-created distraction because he chose to text rather than listen.
I used to pull on the newspaper during a deposition, so the questioner would think I thought the questions did not deserve my full attention, so I suppose this is an improvement.