Friday, May 13, 2016

When Only a Pen Will Do

I recently experienced a confluence of events that forced me to do things differently at work and highlighted the value of handwritten notes (and a good pen, like the Edison Pearlette, pictured below).


When I am cross-examining someone I have a routine and that routine is one that has been shaped by more than a decade of in-the-trenches lawyering.  Basically, I read the whole file again and then start asking questions in my head--the big questions.  Then I break them down into chapters (a la Posner and Dodd) and fill in the spaces with single point, granular questions.  I have a method for impeaching the witness and it involves cross-referencing documents in discovery and noting the impeachment in the typewritten cross.  It is a long process, a very long process, but one I have found to be incredibly effective.

But on a recent Monday snow hit (April snow, fuck you Mother Nature) and I had to get my son at school.  Our printer was broken (though I have since fixed it) so I had no way of printing out my cross.  So I decided to try something different, which, as a control freak, gave me hives.  I wrote my cross, as normal, but kept the document in Pages on my work iPad (by the way, who the fuck uses Office still? That shit is horrible).  Then I took and made some charts with my pen.  The cross in this case focused very tightly on the timeline of events and a comparison to a reported case.  I needed to line up certain events at certain times in my case with events in the reported opinion.  

My questions did that, but in the one-fact-at-a-time questioning, it is possible to get lost.  I need to make a record so I can argue every fact, but sometimes, as they are coming out, it is difficult to see why the tiny facts matter.  Which is why I made the charts.  And only a pen could do this quickly.  I am sure I could do this on a computer, I have done it before, but without a printer and using only an iPad, it would be difficult.  Plus, it would be harder to alter during the cross.  There are fifty things going on at once when crossing a witness and fidgeting with the formatting on a chart on a computer is not one of the things I want to be doing.  A few cross outs here and a few arrows there on paper are much better.

When the cross started I told the judge "I am using my iPad for questions and my phone for Lexis" just so she didn't think I was playing Candy Crush during the hearing.  Then she told us that we had an hour because her morning docket was packed.  Usually we are given two or three hours for a hearing like this.  With a few pen strokes I cut out massive chunks of my argument and with a few taps on the screen I eliminated some of my questions.  

Then the hearing started and things just worked.  I hit every point I needed to and I did most of it from memory (which is the benefit of a long process to develop a cross).  Then in the argument, I just whizzed down my handwritten charts, again most of which were committed to memory.  

In the end, we won the argument we needed to win, lost the one I expected to lose and made the case better.  But going almost paperless, except for a handwritten chart, was new for me and, in the end, better than what I was doing in the past.  The idea that paperless is the only way to go is silly.  Doing something like that for the sake of doing it is not a boost in productivity, but an unnecessary roadblock to getting work done (as are all of the get stuff done systems...if you have enough time to fidget with that bullshit, you clearly don't have enough work to do).  For all of the benefits of paperless though, there is nothing that matches the extemporaneous power of pen and paper.  It's just too good.  


  1. I'm with you here. My previous career one of my major jobs was writing letters of medical necessity. These were obviously never hand written, but I always found a pen and paper immensely useful when drafting. Then I became a small business owner and have a pen and paper available at all times became an absolute necessity.

  2. Thanks for this post. I find it interesting when you comment on your work.
    With respect to mine a pen is invaluable as a teacher. I have tried many and settled on the Jotter, F701 (modded), a vintage gold nib fountain pen of uncertain origin and various mechanical pencils which are cheap as they are almost always stolen.