Legal Law

The place There’s Smoke…

(U.S. Forest Service photo by Mike McMillan)

Have you ever lived in a stale ashtray? A fireplace? That’s what it is like now up and down the West Coast. If you have travel plans to come this way in the immediate future, change them. Do not come. We haven’t seen blue sky, at least here in California, for more than a week. We’ve had the worst smog in almost three decades. Friends who can escape do, to Wyoming or Utah or places further east. Look at the air quality in San Francisco, Portland, Seattle, Vancouver.

But we West Coasters are not the only ones suffering right now. Just say the names “Laura” and “Sally” and those who live in the southeastern United States get it, literally. I’m not about to debate climate change. I will simply say “Res ipsa loquitur.”

We lawyers hate a vacuum. Perhaps that is why we rush to fill silence, figuring that such silence must be bad. If a deponent takes a minute or so to answer a question, we usually note on the record that he has taken 60 seconds or so to answer the question asked. And the implication is that the deponent was stalling, trying to create a better answer or simply being evasive before answering. We all learned in evidence class about silence in the face of an accusatory statement and so we impatiently wait for the answer, and that rush for an answer is not necessarily a good idea.

Hesitation can equal evasion in our world. I don’t think it should. Thoughtful answers, answers responsive to the question don’t necessarily pop out of a person’s mouth immediately. I think it’s like the driver who, immediately upon the light turning green, lays on the horn, as if the few seconds makes any difference. (I do chortle when that driver in a hurry, usually cocooned in an expensive car, must stop at the same light as I do. Tortoise v. Hare, just another example of the adversarial concepts we lawyers seem to thrive on, or if not that, tolerate, as if we had any choice.)

A recent article in Inc. magazine says that both Tim Cook and Jeff Bezos “embrace the rule of awkward silence.” The article says that the rule has always been valuable but today, in a world where everything is “just in time,” “I want it now,” “what’s taking so long?” that rule has become even more valuable.

So, what exactly is this rule? The author of the article, Justin Bariso, says it’s simple: When faced with a challenging question, instead of answering, you pause and think deeply about how you want to answer. This is no short pause; rather, it involves taking more than several seconds (10, 20, or longer) to think things through before responding.

“No short pause?” Uh-oh. How many attorneys have the patience to wait for an answer without thinking something nefarious is going on, we of the suspicious minds? Not many, I’m afraid. It’s reaction that attorneys look for, not necessarily the thoughtful response that answers the question. Bariso says that the rule is valuable as a tool of emotional intelligence, balancing thought and emotion, instead of simply reacting. Much of what occurs in deposition is reaction. Usually deponents have other things to do, and they just want to get the depo over with.

So, in a sense the “rule of awkward silence” is the opposite of immediate gratification. Work with me here. The past six months have shown the limits of immediate gratification. Toilet paper? Wipes? Paper towels? Have we stopped hoarding yet? There are many psychological experiments about immediate gratification, the 1972 marshmallow one probably is the most well-known. Recent research has revealed that the kids do better on the test when they cooperate. Cooperate? What a concept. I wish lawyers would do it more often.

Instantaneous communication has been the watch word for our world. Emails, faxes, and the like must be answered rightaway. Don’t think, just respond. A young lawyer feels that she must answer emails rightnow. No, she doesn’t, especially when responding right away leads to a pissing contest with opposing counsel. Fun, right? Not so much. Whatever happened to time to respond? What about writing something and waiting for a while before hitting send? Whatever happened to time? Where has it gone and what have we done with it?

Yes, the rule of awkward silence is … awkward, until you get used to it. Taking the time to formulate the answer and reply in a way that makes it clear what your answer is, without ambiguity, is a good thing. We are so uncomfortable with silence that we fidget during it. We check our phones, multitask, because the thought of just being quiet and waiting makes us nuts. The concept of stifling ourselves is something we did not learn in law school. Commenting on the length of time that it takes the deponent to answer a question can backfire.

Bariso lists several reasons why the rule is beneficial: it causes you to think critically and not just say the first thing that comes to mind. Spending time before answering can mean more thoughtful answers (this assumes that the answer is not simply “yes, no, or I don’t know”).

Even a little more time can make the answer more confident and assertive. Take time to think before answering a client, opposing counsel, anyone. What’s the rush? Is another minute taken going to make a difference in this pandemic and smoky world? I don’t think so.

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].

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