Photo of Stephen McConnell

The reason that so many law firms have casual Friday (or casual everyday) dress policies is because back in the 1990s they took a cue from their sexier (i.e., high-tech) clients, who shed three-piece suits in favor of Dockers and polo shirts. Imitation was not flattery nor was it mere sycophancy. Rather, it made good business sense. We wanted to entice those 22 year old with forward-looking hipness, and Brooks Brothers and Brioni suddenly seemed repellent. Law firms are conservative institutions. They are laggers, not early-adopters. The clients are always ahead of us. We find that out every time we deliver CLE lectures on compliance to in-house counsel; invariably, the in-house lawyers have come up with policies and techniques light years beyond our puny recommendations.

Several of our clients are blazing a trail when it comes to office design. Many of our friends from high-tech companies in the communications and health care fields are moving into new digs with open floor plans. This development is a dramatic leap over what we have dealt with since … well, since we joined the working world.   To be sure, even in the 1980s some financial houses (including several that are now defunct) were famous for their open bullpens, but they were the exception, not the rule, at least among our clients.  When you enter a typical, traditional office, and certainly a traditional law firm, you will encounter the usual circle of office-boxes, with inner and outer rings for perambulation. The idea is to get to that inner ring quickly when you are trying to go somewhere. But there is a cost to that efficiency. You end up avoiding contact with your colleagues. You can spend an entire day without bumping into more than three or four people. That’s a pity.

The trend is away from those offices and those rings.  The International Facility Management Association reported last year that more than two-thirds of new workplaces adopted an open plan.  Why is that?  To begin with, it is cheaper.  If you are in an open space, you don’t need as much space dedicated to you personally.  You won’t feel claustrophobic in a 4×6 area if it is surrounded by vast vistas of corporate wonderfulness, but you would if that was the size of your enclosed box.  The average amount of space per employee in the United States has dropped by over a third since 1985, from 400 square feet to 250.
Moreover, the open plan allegedly promotes efficiency.  A study in the Harvard Business Review concluded that companies “that encourage collaboration by switching from closed-offices to open-offices realize performance increases (speed and accuracy of work) by 440%.” Could that be from enhanced creativity? Or that it is harder to do online shopping when your computer screen is so much more conspicuous?

One of the purported virtues of the new open floor plans is that they encourage random intersections with colleagues. Recently, the head of Yahoo drew a lot of attention for clamping down on telecommuting. Her point was that creativity is more likely to emerge from a serendipitous rendezvous with coworkers than from padding around your home ‘office’ in a housecoat. That observation has been confirmed in our own experience over and over again. We have had chance encounters with lawyers from different practice areas who just happened to know something or somebody that helped us solve what had seemed to be an intractable problem.  A friend of ours who is a Deputy Public Defender has a similar outlook.  For reasons of economy, as many as three public defenders must share an office.  He thinks that arrangement has helped him try his cases to successful results.  There isn’t much need for quiet, focused
introspection or legal research in those criminal cases.  The contours of probable cause and Rule 404(b) are well-delineated.  But there is enormous benefit from hashing out strategy and tactics with colleagues.  Our friend might simply be making a virtue out of necessity, and we bet there are plenty of times when he wishes he could shut a door against the outside world.  But his fundamental point about the benefits of collaboration has undeniable force.

And yet, the truth of the matter is that most of our friends moving to open floor plans are displeased by this brave new world. It’s not as if people yearn for the Mad Men office with the bar cart and the plush couch, but they like having their own space.  Some office designs do not even afford people their own assigned space at all. You show up, collect your laptop computer, and park yourself wherever you can. Sometimes it is called “hotel-ing.” It has to be unsettling, and maybe that’s the point.  For lawyers in firms, we have to wonder whether we are staring at our own future. As law firm leases are expiring, firm managers are rethinking what law offices should look like. Goodbye boxes, dark cherry wood, and paintings of foxhunts. (Okay, that last bit pretty much disappeared 20 years ago – what happened to all those pictures? Have they been turning up at garage sales?) Hello — what? Chaos through a glass brightly? One concern we hear from both in- and out-house lawyers is how to maintain confidentiality in these cavernous, well-lit rookeries.  Architects don’t seem to understand lawyers. Or they don’t want to.

We do not know whether new style offices will end up being a net plus or not for our clients. But one advantage occurs to us: maybe people will communicate more often face-to-face. We’d like to think that there will be fewer emails. We’d even encourage the idea of Snark-zones in offices, where employees can get together and share temporary frustrations and bad jokes that apparently ache to come out. Those gripes and insults are as evanescent as fruit flies — except that such exchanges are not evanescent when they find their way into emails. How many litigations get distorted or polluted because some employees poured their momentary idiocy or anger into an email? They can say something awful or doltish, utterly lacking in authority or
policy or practice, but there it remains, like a water-ring mark on the living room table, ugly and unerasable. Those emails are Exhibit A to human frailty and poor judgment, and often Exhibit 101 in a plaintiff’s presentation on ‘bad corporate conduct.’  We authored a post recently where a court kept out some emails, but it is hard to find a mass tort litigation where so much of the ESI discovery, pretrial motion practice, and hot-points of jury communication do not revolve around emails.  It’s impossible to read the Business section of a newspaper or website without learning of horrific emails that will surely translate into years of litigation Hell.  A banker peddles assets to “widows and orphans” while he jokingly confides to co-workers that he is trafficking in “toxic waste” or “goat poo.”   Another financial wizard advocates the use of fake IDs.  Even lawyers aren’t immune, dashing off bad-joke emails about their billing practices.
Once you have to explain these things, you’re already in terrible trouble.  It’s like that story about an early Lyndon Johnson political campaign, where some of the handbills hinted that LBJ’s opponent, who was a farmer, might have been a little too friendly with his barn animals.  “Dammit,” an aide complained to LBJ, “we can’t go around accusing someone of bestiality!”  LBJ looked down over his jowls and said, “I just wanna make the SOB deny it.”

How many times have you received a “Reply All” email that you could just as easily have done without? Perhaps you even thought of sending out another “Reply All” that sarcastically thanked the miscreant for sharing the fact that he would be in Cleveland next Tuesday. That is probably a bad idea. Why make an unnecessary enemy? We wish a banner would pop up before sending out a Reply All that would say, “You are about to send a Reply All. Are you sure you want to do that?” We have heard that some systems already offer that option. For example, there is a TuneReply All add-on available for Outlook.  So much for our hopes of getting rich off that idea. But we have another one: what if a banner would pop up before sending any email that contained red-flag words? The banner could even contain an actual red flag.  “You are about to send an email that talks about burying a study. Are you sure you want to do that?” A bunch of us defense hacks could get together and come up with silly things that show up in emails. Come to think of it, if we offer some of our opponents enough Johnnie Walker Black, they might join in the fun and offer additional suggestions.  We might include curse words among things that would prompt the red flag.  We might include “ROI.” We would definitely include “goat poo.”  Heck, we might put the banner up for every email. Then again, we wouldn’t be surprised if plaintiff lawyers tried to transform the existence of such an anti-email program itself into evidence of bad conduct. It would be like those emails where some supervisor tells minions not to send so many emails. Those emails don’t look good, and they don’t work.

Of course, neither office design nor technology fixes nor directives from above can solve the problem of erratic human judgment.  We are desperate to communicate with each other.  We tell each other stories and jokes.  Maybe as we sit around our new open space bullpens we can remind each other of how those stories and jokes can be misunderstood, or can land with a thud.  Or maybe someday some of us will have to stand up and explain why those stories and jokes are not the whole story, or the right story, or any sort of meaningful story at all.