Boom, Boom, Boom

*****************************************

MR. KEKER: And this shows for the 40 minutes before he's just going boom, boom, boom, boom, boom, boom, from subject to subject. Hits the Char e-mail and keeps going. Then he goes on. Two minutes later, he's asking about a collection matter, his testimony will be. This is just what he sent. It's not even what he received during that period.

THE COURT: Okay. 6:04:53. He's reading the next one in 36.7 seconds ' 43 seconds, he is reading the next one and answering it. Is that what you're going to tell this jury? That he read that entire thing in 43 seconds and answered it?

MR. KEKER: Sure.

THE COURT: I mean, seriously.

MR. KEKER: Yes. This is him going through his e-mail: That's the point. I mean, he's jumping from one thing to the other.

THE COURT: But he jumped here so fast. He couldn't possibly have read it in 43 seconds.

MR. KEKER: You could say the same thing about the Char e-mail. It shows how his mind is going at the time that his state of behind is so relevant. Boom, boom, boom.

' Deposition of Frank Quattrone, U.S. v. Quattrone, Oct. 9, 2003; http://online.wsj.com/documents/quat-2003-10-09.htm.

*****************************************

Former high-tech investment banker Frank Quattrone once testified that his daily workday in 2000 ' years before Twitter and IM increased not only the ways to be distracted, but also the volume of interruptions ' was “interrupt driven.”

“That was what my life was all about,” he said. “I would constantly be interrupted by e-mails, by phone calls, by people walking into my office, by projects that needed my attention. That's what I did. I was interrupted all the time.” (Transcript at 1194. http://online.wsj.com/documents/quat-2003-10-09.htm.)

'Every Three Minutes'

As mind-numbing as that existence sounds, consider how much his experience on the cutting edge of the Internet revolution resembles the day-to-day existence of everyone in the tech world today. Living in a BlackBerry culture of instant response and constant availability, the only surprise today is when you don't have interruptions, which may mean that you are not making money, because no one is bothering you to get things done. As a recent business-research firm study reported: “Roughly once every three minutes, typical cubicle dwellers set aside whatever they're doing and start something else ' anything else. It could be answering the phone, checking e-mail, responding to an instant message, clicking over to YouTube, or posting something amusing on Facebook. Constant interruptions are the Achilles' heel of the information economy in the U.S.” (see, www.businessweek.com/print/magazine/content/08_25/b4089055162244.htm).

But how does that existence square with the expectations of the law for one in a position of legal, and fiduciary, responsibility? Can anyone truly exercise “judgment” worthy of the “reliance” of a third party, such as a shareholder, when his or her deliberative processes consist of brief “boom, boom, boom” glances of attention between interrupting events demanding an immediate response (or, at least, diversion from what one had otherwise been trying to do)?

Consider, for example, a recent corporate board meeting I attended at an upscale resort. For many years, this company has regularly assembled the leaders of each of its divisions to share information about the company and its performance, current market conditions, and to plan the company's future in an industry under challenge on several fronts. As counsel to the company, I have been pleased to be invited to attend, not only to understand the business concerns behind its legal needs, but also to speak informally with the principals to get a better understanding of the client and its business. Frequently, because of hallway discussions that occurred at such meetings, I have spotted legal issues that the company did not realize were issues.

Today, however, those in attendance sit around a table with laptops open and BlackBerrys in hand, exchanging messages with clients and vendors while their colleagues make presentations. Let he who is without sin cast the first stone ' my laptop was fired up too, so I am just as guilty as they are. (The principals of the company are not yet accustomed to Twitter.) Breaks in the meeting, the traditional time for informal conversation, are now occupied with attention to returning calls by cell phones, and checking e-mail on BlackBerrys; evenings are spent catching up on messages missed during the day.

While it is helpful to be able to research issues online and communicate with key employees while sitting at the board table, I find that the level of distraction from the board's deliberations has diminished the value of these meetings, for me and for the company. While this problem is certainly not limited to e-commerce or technology firms, I think that the great reliance on such technology by their executives and directors makes the legal duty to “pay attention” even more of a pressing issue for such firms.

Inattentive, Injudicious Jurors

And the attention problem is not limited to corporate matters. Recent cases involving jurors who used their access to online resources, even from the “closed” jury room, has caused concern about the integrity of the judicial process. In addition, courts must consider the expense of potential mistrials, when jurors ignore their instructions and, as they are accustomed to doing in civilian life, go online to check facts for themselves, or tweet friends about their current activities (see, www.nytimes.com/2009/03/18/us/18juries.html?scp=1&sq=jurors%20mistrial%20&st=cse). In one case, an eight-week federal criminal trial was wasted because nine jurors had gone online to research a case because (as one juror explained), “I was curious.” In another, a defendant in a multi-million dollar case asked to overturn the verdict against it when it learned that a juror had sent periodic updates on the deliberations, including a warning against buying stock in the company, over a impending decision that would hold the company liable. In a highly publicized criminal trial of a powerful former state senator in Philadelphia, a juror tweeted his followers to watch for a “big announcement” ' the guilty verdict that will be appealed, in part, because of those postings. As one defense lawyer in another criminal trial noted: “It's the first time modern technology struck us in that fashion, and it hit us right over the head.” (And these are just the cases that have been discovered ' given the ubiquity of Internet-enabled handheld devices, who knows how many other cases may have been affected without any adult in responsibility ever having discovered that fact, as occurred in another case reported in the New York Times article cited above.)

Of course, as in my corporate examples, one has to wonder whether the jurors so focused on keeping up-to-date with various matters via their electronic devices were paying attention to the testimony they heard in the courtroom. Would you want your case decided by someone who heard only a fraction of your attorney's evidence ' or on what someone may have posted about you on Facebook or Wikipedia?

Moreover, bypassing the strict rules of the jury room can also bypass rules of evidence that try to limit what jurors hear to credible evidence, which the law deems acceptable, and which both attorneys have had a chance to challenge. In addition, because jury decisions can affect the stock price of public companies, long-standing securities law about stock tips smuggled out of jury rooms would apply directly now that such smuggling can be easily done through the privacy of one's portable device. The juror's tweet “nobody buy Stoam” (the name of the defendant company) appears to reflect more than a casual interest in the news of the day.

Not a Totally New Game

Of course, the problem of not focusing on the task at hand because of the effect of technology is neither new nor limited to the law, and sometimes it is even encouraged, as a marketing device, for example. A professional basketball player, Charlie Villanueva of the Milwaukee Bucks, was recently suspended for twittering from the locker room at halftime of a game ' a true sign of attention to his coach's instructions on how to win the game in progress. Women's Professional Soccer is aggressively promoting that it will “integrate Twitter pre-game, half-time and post-game” (see, www.time.com/time/nation/article/0,8599,1888229,00.html). But, as the league commissioner wondered, in a comment echoing the legal concerns over use of such devices: “The question is how far do you push the medium without disrupting the integrity of the game. We're a major league. We don't want to become a sideshow.” One writer has even discussed the social subtleties ' and challenges to good manners, much less effective communication ' created when technology interrupts our lives (see, www.washingtonpost.com/wp-dyn/content/article/2009/04/07/AR2009040703705.html?sub=AR; free registration required).

In fact, the public perception of the challenges of limited attention has become so widespread that a widely circulated online message suggests that simply adding “sent from my iPhone” to each message will immunize the sender from responsibility for poor grammar or spelling ' and perhaps even lack of thought or analysis. As I have noted in prior articles, the common complaint of not being able to read a complicated document on one's BlackBerry is not a defense to the legal responsibilities (much less the social duty of respect for the sender) accompanying receipt of a legal message.

Law, Science, Society and Multi-tasking

Returning to the law, in 1965 the U.S. Supreme Court threw out a criminal conviction in a highly publicized case that was affected by live television and radio coverage in the courtroom that distracted the judge. Estes v. Texas, 381 US 532, 568 (1965). As the Supreme Court noted: “A major aspect of the problem is the additional responsibilities the presence of television places on the trial judge. His job is to make certain that the accused receives a fair trial. This most difficult task requires his undivided attention. ' Moreover, the trial judge was himself harassed.” (Emphasis added.) While that case involving “traditional” media long predated distractions from the Internet, its emphasis on allowing the participants in the trial to remain focused on the proceedings would be no different today when those distractions are in the participants' pockets, rather than simply in the courtroom.

This concern was well expressed in another context, by a school superintendent at a meeting I attended, in response to a parent's question about requiring teachers to respond to parents' e-mail about their child. He noted that a school system is not a “BlackBerry culture” ' the instant response and constant availability expected in many businesses today simply does not apply to schools, and, I suggest, to all legal decisions, even in firms that are themselves definitely part of the BlackBerry culture. Instead, sometimes making decisions ' and fulfilling legal obligations ' requires a more deliberative, measured, response that simply may not fit into the 140-character limit of a tweet, or the normal expected response time for a message (whether sent by e-mail, text or tweet).

And science supports that observation ' even science funded by Microsoft, which, of course, has an interest in expanding online activity. A recent Newsweek article reported on several studies showing the effects of diminished attention on performing critical tasks, from flying a plane or driving a train to running a country or an economy (see, www.washingtonpost.com/wp-dyn/content/article/2009/04/07/AR2009040703705.html?sub=AR). While technology apologists have tried to rationalize the distracted lifestyle with the term continuous partial attention, that doesn't help with the complex and often ambiguous thinking that the law requires. According to that article: “Continuous partial attention is actually a misnomer. Computer scientists use it, but most psychologists disdain it because what seems like partial attention or multitasking is actually rapid-fire switching of attention among tasks. In that state of mind, says computer scientist Mary Czerwinski of Microsoft Research, you don't process information as fully and are not using your frontal lobe effectively.” A 2002 Harvard Business Review study on promoting creativity similarly reported a 45% difference in employee creativity when people were not under the pressures created by distractions in business, even before the advent of Twitter, and early in the BlackBerry era (see, http://hbr.harvardbusiness.org/2002/08/creativity-under-the-gun/ar/1).

One nationally known author has addressed this concern more generally, in a recent study of the loss of attention in modern society that has been acclaimed in the business and psychology press. In Distracted: The Erosion of Attention and the Coming Dark Age (see, www.amazon.com/Distracted-Erosion-Attention-Coming-Dark/dp/1591026237/ref=sr_1_1?ie=UTF8&s=books&qid=1240261079&sr=1-1), Maggie Jackson, an award-winning Boston Globe columnist (and, in the interest of full disclosure, a college classmate), studied the ways in which our “frenetic mobility, boundaryless virtuality and multi-tasking demands” have, paradoxically, made us less able to handle those tasks well (when and if we ever get the time to focus on them). (See, www.boston.com/jobs/news/archive/balance.) Instead, in her book, Jackson tried to provide ways to “help people to recapture focus and attention.” In an interview with HarvardBusiness.org, she noted ' in a comment that applies equally to legal responsibilities and business demands ' that: “We need to use our attentional skills fully: to skim across the ocean of data that surrounds us and to dive deeply into it at times”

In the legal environment, that failure to “dive deeply” can quickly cause a failure to exercise the judgment demanded by the law, and lead to liability for a business executive, and malpractice for the attorney representing her. After all, legal duties ' especially ones as important as those of a board of directors ' are not meant to be filled with quick replies; a considered response, based on all information that can effectively be mustered, is required, not a quick-twitch reaction.

Partial Attention + Duty =
Not a Good Mix

In fact, one of Jackson's columns cites precisely the problem that occurred at my client's board meeting, and that led to the idea for this column (see, http://shiftingcareers.blogs.nytimes.com/2008/06/10/attention-must-be-paid/?pagemode=print): “In meetings where everyone is checking e-mail, opportunities for collective creative energy and critical thinking are lost, argues Nathan Zeldes, a senior engineer at Intel and a leader of the recently founded nonprofit organization, Information Overload Research Group, based in New York.” If the priority for those attending a business meeting becomes keeping up with those trying to contact them rather than with the subject of the meeting itself, why should we ' or a court ' expect that results of the meeting to be worthy of our reliance (or accorded any deference under the doctrine of the business-judgment rule)? (For those bearing such legal responsibilities, Zeldes has suggested tips to regain the focus that the law requires (see, www.iorgforum.org/TipsArchive.htm).)

More substantively, Jackson believes that today's problems with attention are bigger than the legal concerns I have discussed, and go far beyond the challenges facing directors: “I believe that the problem is both environmental and individual. We need to question our veneration of multitasking as a marker of success, and our acceptance of noisy, interrupt-driven public spaces as a norm. We need collectively social responses, or we'll simply be reduced to 'turf wars,' in which we guard our own focus and care little for others' right to be aware and attentional.”

But while we can all aspire to pay more attention through such techniques, and try to institute such change in society, it seems unlikely that our social and business culture will change overnight. As I have previously noted, President Obama himself forced a change in the rules governing his office to allow himself to keep being interrupted when he was threatened with loss of his mobile device (see, e-Commerce Law & Strategy, January 2009 at www.ljnonline.com/issues/ljn_ecommerce/25_9/news/151576-1.html), and as I noted in my June 2007 column, there is little that can be done “When the CEO Wants His Hotmail” (see, www.ljnonline.com/issues/ljn_ecommerce/24_2/news/148717-1.html). Therefore, business attorneys must think about the implications of their own and their clients' distraction for their work, and work product.

At one level, shorter contracts and memos could be helpful. But in a world where malpractice claims won't be decided based on a client's tolerance for attention to detail, I doubt that lawyers will sacrifice thoroughness for brevity (especially when more disclosure to clients could protect them if a deal goes awry). Nonetheless, I have often found that being able to structure a letter to a client to provide the crucial question ' and analysis ' in a brief introductory statement, followed by the complete explanation, has often satisfied my professional responsibilities and the client's needs.

How Bad Is the Situation?

More seriously, though, let me return to the board scenario with which I began. I think it would be interesting to see corporate litigators conducting depositions about board decisions or involving other corporate meetings inquire about how many of those in attendance were using their devices while the meeting was in progress ' and what they remember about what was discussed. (Perhaps a side-by-side graphic comparing each director's e-mail or Twitter activity that afternoon with the board agenda would illustrate the attention ' or lack of it ' as effectively as in the Quattrone trial excerpt at the top of this article). A widely circulated and perhaps apocryphal story about BlackBerrys' use in the board room (see, www.itjungle.com/tfh/tfh042009-story04.html) suggests a fertile ground for corporate litigation, particularly in Delaware's Chancery Court, where questions of fiduciary duty are often examined.

Although I am not aware of any current cases in which a board-of-directors' decision was challenged under a “standard of care” attack because the directors were paying more attention to their messaging than to their legal duties, it certainly seems worth asking about ' the results may surprise all of us, perhaps as much as the court in the criminal case above was shocked to learn how many of the jurors had flouted its rules and authority by going online. How can one pay attention to the big issues facing a company, the traditional directors' standard of care, if one is not well versed on what was discussed at a board meeting? Indeed, no less than former Treasury Secretary Robert Rubin has suggested in an interview that the investment bankers who created and sold the exotic securities that many believe have played such a prominent role in our current economic crisis may simply not have understood how they worked, or what circumstances made them so risky, because of their lack of attention to those details (see, www.newsweek.com/id/183719/page/3).

Should corporate litigators ask such questions about directors' attention to their duties, then the hearts of corporate executives and directors may indeed go boom! boom! boom! (to repeat the deposition testimony quoted at the start of this article to describe an executive's lack of attention to any individual e-mail message). Here, however, it will not be with the excitement of anticipation, but instead the reaction would be quite the opposite for the deponents.

In the corporate context, the law requires paying attention to the meeting or task before you, rather than the possible new client or additional business hiding in the unopened e-mail or tweet, lest your distraction and lack of attention lead your business to a fate far worse than a failed romance.

[Editor's note: After a definition from Black's Law Dictionary, Stanley Jaskiewicz's column opens with a testimony excerpt. A link to the document follows the excerpt.]

Fiduciary or confidential relation: Such relationship exists when there is a reposing of faith, confidence and trust, and the placing of reliance by one upon the judgment and advice of the other.

' Black's Law Dictionary (in part).

*****************************************

MR. KEKER: And this shows for the 40 minutes before he's just going boom, boom, boom, boom, boom, boom, from subject to subject. Hits the Char e-mail and keeps going. Then he goes on. Two minutes later, he's asking about a collection matter, his testimony will be. This is just what he sent. It's not even what he received during that period.

THE COURT: Okay. 6:04:53. He's reading the next one in 36.7 seconds ' 43 seconds, he is reading the next one and answering it. Is that what you're going to tell this jury? That he read that entire thing in 43 seconds and answered it?

MR. KEKER: Sure.

THE COURT: I mean, seriously.

MR. KEKER: Yes. This is him going through his e-mail: That's the point. I mean, he's jumping from one thing to the other.

THE COURT: But he jumped here so fast. He couldn't possibly have read it in 43 seconds.

MR. KEKER: You could say the same thing about the Char e-mail. It shows how his mind is going at the time that his state of behind is so relevant. Boom, boom, boom.

' Deposition of Frank Quattrone, U.S. v. Quattrone, Oct. 9, 2003; http://online.wsj.com/documents/quat-2003-10-09.htm.

*****************************************

Former high-tech investment banker Frank Quattrone once testified that his daily workday in 2000 ' years before Twitter and IM increased not only the ways to be distracted, but also the volume of interruptions ' was “interrupt driven.”

“That was what my life was all about,” he said. “I would constantly be interrupted by e-mails, by phone calls, by people walking into my office, by projects that needed my attention. That's what I did. I was interrupted all the time.” (Transcript at 1194. http://online.wsj.com/documents/quat-2003-10-09.htm.)

'Every Three Minutes'

As mind-numbing as that existence sounds, consider how much his experience on the cutting edge of the Internet revolution resembles the day-to-day existence of everyone in the tech world today. Living in a BlackBerry culture of instant response and constant availability, the only surprise today is when you don't have interruptions, which may mean that you are not making money, because no one is bothering you to get things done. As a recent business-research firm study reported: “Roughly once every three minutes, typical cubicle dwellers set aside whatever they're doing and start something else ' anything else. It could be answering the phone, checking e-mail, responding to an instant message, clicking over to YouTube, or posting something amusing on Facebook. Constant interruptions are the Achilles' heel of the information economy in the U.S.” (see, www.businessweek.com/print/magazine/content/08_25/b4089055162244.htm).

But how does that existence square with the expectations of the law for one in a position of legal, and fiduciary, responsibility? Can anyone truly exercise “judgment” worthy of the “reliance” of a third party, such as a shareholder, when his or her deliberative processes consist of brief “boom, boom, boom” glances of attention between interrupting events demanding an immediate response (or, at least, diversion from what one had otherwise been trying to do)?

Consider, for example, a recent corporate board meeting I attended at an upscale resort. For many years, this company has regularly assembled the leaders of each of its divisions to share information about the company and its performance, current market conditions, and to plan the company's future in an industry under challenge on several fronts. As counsel to the company, I have been pleased to be invited to attend, not only to understand the business concerns behind its legal needs, but also to speak informally with the principals to get a better understanding of the client and its business. Frequently, because of hallway discussions that occurred at such meetings, I have spotted legal issues that the company did not realize were issues.

Today, however, those in attendance sit around a table with laptops open and BlackBerrys in hand, exchanging messages with clients and vendors while their colleagues make presentations. Let he who is without sin cast the first stone ' my laptop was fired up too, so I am just as guilty as they are. (The principals of the company are not yet accustomed to Twitter.) Breaks in the meeting, the traditional time for informal conversation, are now occupied with attention to returning calls by cell phones, and checking e-mail on BlackBerrys; evenings are spent catching up on messages missed during the day.

While it is helpful to be able to research issues online and communicate with key employees while sitting at the board table, I find that the level of distraction from the board's deliberations has diminished the value of these meetings, for me and for the company. While this problem is certainly not limited to e-commerce or technology firms, I think that the great reliance on such technology by their executives and directors makes the legal duty to “pay attention” even more of a pressing issue for such firms.

Inattentive, Injudicious Jurors

And the attention problem is not limited to corporate matters. Recent cases involving jurors who used their access to online resources, even from the “closed” jury room, has caused concern about the integrity of the judicial process. In addition, courts must consider the expense of potential mistrials, when jurors ignore their instructions and, as they are accustomed to doing in civilian life, go online to check facts for themselves, or tweet friends about their current activities (see, www.nytimes.com/2009/03/18/us/18juries.html?scp=1&sq=jurors%20mistrial%20&st=cse). In one case, an eight-week federal criminal trial was wasted because nine jurors had gone online to research a case because (as one juror explained), “I was curious.” In another, a defendant in a multi-million dollar case asked to overturn the verdict against it when it learned that a juror had sent periodic updates on the deliberations, including a warning against buying stock in the company, over a impending decision that would hold the company liable. In a highly publicized criminal trial of a powerful former state senator in Philadelphia, a juror tweeted his followers to watch for a “big announcement” ' the guilty verdict that will be appealed, in part, because of those postings. As one defense lawyer in another criminal trial noted: “It's the first time modern technology struck us in that fashion, and it hit us right over the head.” (And these are just the cases that have been discovered ' given the ubiquity of Internet-enabled handheld devices, who knows how many other cases may have been affected without any adult in responsibility ever having discovered that fact, as occurred in another case reported in the New York Times article cited above.)

Of course, as in my corporate examples, one has to wonder whether the jurors so focused on keeping up-to-date with various matters via their electronic devices were paying attention to the testimony they heard in the courtroom. Would you want your case decided by someone who heard only a fraction of your attorney's evidence ' or on what someone may have posted about you on Facebook or Wikipedia?

Moreover, bypassing the strict rules of the jury room can also bypass rules of evidence that try to limit what jurors hear to credible evidence, which the law deems acceptable, and which both attorneys have had a chance to challenge. In addition, because jury decisions can affect the stock price of public companies, long-standing securities law about stock tips smuggled out of jury rooms would apply directly now that such smuggling can be easily done through the privacy of one's portable device. The juror's tweet “nobody buy Stoam” (the name of the defendant company) appears to reflect more than a casual interest in the news of the day.

Not a Totally New Game

Of course, the problem of not focusing on the task at hand because of the effect of technology is neither new nor limited to the law, and sometimes it is even encouraged, as a marketing device, for example. A professional basketball player, Charlie Villanueva of the Milwaukee Bucks, was recently suspended for twittering from the locker room at halftime of a game ' a true sign of attention to his coach's instructions on how to win the game in progress. Women's Professional Soccer is aggressively promoting that it will “integrate Twitter pre-game, half-time and post-game” (see, www.time.com/time/nation/article/0,8599,1888229,00.html). But, as the league commissioner wondered, in a comment echoing the legal concerns over use of such devices: “The question is how far do you push the medium without disrupting the integrity of the game. We're a major league. We don't want to become a sideshow.” One writer has even discussed the social subtleties ' and challenges to good manners, much less effective communication ' created when technology interrupts our lives (see, www.washingtonpost.com/wp-dyn/content/article/2009/04/07/AR2009040703705.html?sub=AR; free registration required).

In fact, the public perception of the challenges of limited attention has become so widespread that a widely circulated online message suggests that simply adding “sent from my iPhone” to each message will immunize the sender from responsibility for poor grammar or spelling ' and perhaps even lack of thought or analysis. As I have noted in prior articles, the common complaint of not being able to read a complicated document on one's BlackBerry is not a defense to the legal responsibilities (much less the social duty of respect for the sender) accompanying receipt of a legal message.

Law, Science, Society and Multi-tasking

Returning to the law, in 1965 the U.S. Supreme Court threw out a criminal conviction in a highly publicized case that was affected by live television and radio coverage in the courtroom that distracted the judge. Estes v. Texas , 381 US 532, 568 (1965). As the Supreme Court noted: “A major aspect of the problem is the additional responsibilities the presence of television places on the trial judge. His job is to make certain that the accused receives a fair trial. This most difficult task requires his undivided attention. ' Moreover, the trial judge was himself harassed.” (Emphasis added.) While that case involving “traditional” media long predated distractions from the Internet, its emphasis on allowing the participants in the trial to remain focused on the proceedings would be no different today when those distractions are in the participants' pockets, rather than simply in the courtroom.

This concern was well expressed in another context, by a school superintendent at a meeting I attended, in response to a parent's question about requiring teachers to respond to parents' e-mail about their child. He noted that a school system is not a “BlackBerry culture” ' the instant response and constant availability expected in many businesses today simply does not apply to schools, and, I suggest, to all legal decisions, even in firms that are themselves definitely part of the BlackBerry culture. Instead, sometimes making decisions ' and fulfilling legal obligations ' requires a more deliberative, measured, response that simply may not fit into the 140-character limit of a tweet, or the normal expected response time for a message (whether sent by e-mail, text or tweet).

And science supports that observation ' even science funded by Microsoft, which, of course, has an interest in expanding online activity. A recent Newsweek article reported on several studies showing the effects of diminished attention on performing critical tasks, from flying a plane or driving a train to running a country or an economy (see, www.washingtonpost.com/wp-dyn/content/article/2009/04/07/AR2009040703705.html?sub=AR). While technology apologists have tried to rationalize the distracted lifestyle with the term continuous partial attention, that doesn't help with the complex and often ambiguous thinking that the law requires. According to that article: “Continuous partial attention is actually a misnomer. Computer scientists use it, but most psychologists disdain it because what seems like partial attention or multitasking is actually rapid-fire switching of attention among tasks. In that state of mind, says computer scientist Mary Czerwinski of Microsoft Research, you don't process information as fully and are not using your frontal lobe effectively.” A 2002 Harvard Business Review study on promoting creativity similarly reported a 45% difference in employee creativity when people were not under the pressures created by distractions in business, even before the advent of Twitter, and early in the BlackBerry era (see, http://hbr.harvardbusiness.org/2002/08/creativity-under-the-gun/ar/1).

One nationally known author has addressed this concern more generally, in a recent study of the loss of attention in modern society that has been acclaimed in the business and psychology press. In Distracted: The Erosion of Attention and the Coming Dark Age (see, www.amazon.com/Distracted-Erosion-Attention-Coming-Dark/dp/1591026237/ref=sr_1_1?ie=UTF8&s=books&qid=1240261079&sr=1-1), Maggie Jackson, an award-winning Boston Globe columnist (and, in the interest of full disclosure, a college classmate), studied the ways in which our “frenetic mobility, boundaryless virtuality and multi-tasking demands” have, paradoxically, made us less able to handle those tasks well (when and if we ever get the time to focus on them). (See, www.boston.com/jobs/news/archive/balance.) Instead, in her book, Jackson tried to provide ways to “help people to recapture focus and attention.” In an interview with HarvardBusiness.org, she noted ' in a comment that applies equally to legal responsibilities and business demands ' that: “We need to use our attentional skills fully: to skim across the ocean of data that surrounds us and to dive deeply into it at times”

In the legal environment, that failure to “dive deeply” can quickly cause a failure to exercise the judgment demanded by the law, and lead to liability for a business executive, and malpractice for the attorney representing her. After all, legal duties ' especially ones as important as those of a board of directors ' are not meant to be filled with quick replies; a considered response, based on all information that can effectively be mustered, is required, not a quick-twitch reaction.

Partial Attention + Duty =
Not a Good Mix

In fact, one of Jackson's columns cites precisely the problem that occurred at my client's board meeting, and that led to the idea for this column (see, http://shiftingcareers.blogs.nytimes.com/2008/06/10/attention-must-be-paid/?pagemode=print): “In meetings where everyone is checking e-mail, opportunities for collective creative energy and critical thinking are lost, argues Nathan Zeldes, a senior engineer at Intel and a leader of the recently founded nonprofit organization, Information Overload Research Group, based in New York.” If the priority for those attending a business meeting becomes keeping up with those trying to contact them rather than with the subject of the meeting itself, why should we ' or a court ' expect that results of the meeting to be worthy of our reliance (or accorded any deference under the doctrine of the business-judgment rule)? (For those bearing such legal responsibilities, Zeldes has suggested tips to regain the focus that the law requires (see, www.iorgforum.org/TipsArchive.htm).)

More substantively, Jackson believes that today's problems with attention are bigger than the legal concerns I have discussed, and go far beyond the challenges facing directors: “I believe that the problem is both environmental and individual. We need to question our veneration of multitasking as a marker of success, and our acceptance of noisy, interrupt-driven public spaces as a norm. We need collectively social responses, or we'll simply be reduced to 'turf wars,' in which we guard our own focus and care little for others' right to be aware and attentional.”

But while we can all aspire to pay more attention through such techniques, and try to institute such change in society, it seems unlikely that our social and business culture will change overnight. As I have previously noted, President Obama himself forced a change in the rules governing his office to allow himself to keep being interrupted when he was threatened with loss of his mobile device (see, e-Commerce Law & Strategy, January 2009 at www.ljnonline.com/issues/ljn_ecommerce/25_9/news/151576-1.html), and as I noted in my June 2007 column, there is little that can be done “When the CEO Wants His Hotmail” (see, www.ljnonline.com/issues/ljn_ecommerce/24_2/news/148717-1.html). Therefore, business attorneys must think about the implications of their own and their clients' distraction for their work, and work product.

At one level, shorter contracts and memos could be helpful. But in a world where malpractice claims won't be decided based on a client's tolerance for attention to detail, I doubt that lawyers will sacrifice thoroughness for brevity (especially when more disclosure to clients could protect them if a deal goes awry). Nonetheless, I have often found that being able to structure a letter to a client to provide the crucial question ' and analysis ' in a brief introductory statement, followed by the complete explanation, has often satisfied my professional responsibilities and the client's needs.

How Bad Is the Situation?

More seriously, though, let me return to the board scenario with which I began. I think it would be interesting to see corporate litigators conducting depositions about board decisions or involving other corporate meetings inquire about how many of those in attendance were using their devices while the meeting was in progress ' and what they remember about what was discussed. (Perhaps a side-by-side graphic comparing each director's e-mail or Twitter activity that afternoon with the board agenda would illustrate the attention ' or lack of it ' as effectively as in the Quattrone trial excerpt at the top of this article). A widely circulated and perhaps apocryphal story about BlackBerrys' use in the board room (see, www.itjungle.com/tfh/tfh042009-story04.html) suggests a fertile ground for corporate litigation, particularly in Delaware's Chancery Court, where questions of fiduciary duty are often examined.

Although I am not aware of any current cases in which a board-of-directors' decision was challenged under a “standard of care” attack because the directors were paying more attention to their messaging than to their legal duties, it certainly seems worth asking about ' the results may surprise all of us, perhaps as much as the court in the criminal case above was shocked to learn how many of the jurors had flouted its rules and authority by going online. How can one pay attention to the big issues facing a company, the traditional directors' standard of care, if one is not well versed on what was discussed at a board meeting? Indeed, no less than former Treasury Secretary Robert Rubin has suggested in an interview that the investment bankers who created and sold the exotic securities that many believe have played such a prominent role in our current economic crisis may simply not have understood how they worked, or what circumstances made them so risky, because of their lack of attention to those details (see, www.newsweek.com/id/183719/page/3).

Should corporate litigators ask such questions about directors' attention to their duties, then the hearts of corporate executives and directors may indeed go boom! boom! boom! (to repeat the deposition testimony quoted at the start of this article to describe an executive's lack of attention to any individual e-mail message). Here, however, it will not be with the excitement of anticipation, but instead the reaction would be quite the opposite for the deponents.

In the corporate context, the law requires paying attention to the meeting or task before you, rather than the possible new client or additional business hiding in the unopened e-mail or tweet, lest your distraction and lack of attention lead your business to a fate far worse than a failed romance.