Law Times

Law Times • February 26, 2018 Page 7 www.lawtimesnews.com Choose health over your phone BY DORON GOLD A ll right, my friend. This is an intervention. I know you're sur- prised, but things have got out of hand and we need to talk about your behaviour. You've been spotted walk- ing down the street in a trance not looking where you're going. You're losing sleep. You're distracted at work, when you drive or when you're with your kids. You sometimes seem preoccupied with this one thing, obsessing over it, even at dinner with family. My friend, I'm concerned that you're addicted to that little super-computer in your pocket/purse — your smartphone. Strange to call it a phone, isn't it? I mean, when I was growing up, a phone had a ro- tary dial (yes, I'm old) and a cord attached to a wall. When it rang, you had no idea who was calling and you threw caution to the wind and answered it anyway. If you wanted to know what was hap- pening in the world, you'd read a news- paper or wait until the evening news came on. If you wanted check your mail, you'd check your physical mailbox for an enve- lope, which took days to arrive, and you were OK with waiting for it. I have mil- lennial clients who use their smartphone for everything except actually phoning people, which is just not done, apparently. Text, Snap, FB Messenger, but whatever you do, don't actually phone someone. Since the introduction of the smart- phone, we could never have imagined how immersed we'd get in our little devices. It's crept up on us to the point where we now have lawyers sitting on a beach in Costa Rica, feeling com- pelled to answer work emails that just must be responded to immediately. We have articling students fearful of not responding to articling principals' emails at midnight. We have law stu- dents "Snapping" each other in the middle of Constitution- al Law class or having their phones beep and buzz while they study for the Solicitor Li- censing exam, thinking all the while that they won't be distracted. In fact, it's got to the point that, as psy- chologist Larry Rosen says, simply put- ting down one's smartphone is anxiety- provoking, signalling the adrenal gland to release cortisol, the stress hormone. As a result, the average person checks their phone at least once every 15 minutes, whether they've received a notification that there is actually something to check or not, because that simple act of check- ing relieves anxiety. These devices have hooked us. Tech entrepreneur and ethicist Tristan Harris insists that technology is not neu- tral. A few programmers can shape how a billion people think and feel on a daily ba- sis through what they choose to look at on those little screens. As Harris puts it, "It's a race to the bottom of the brain stem," where we are emotionally activated. By designing apps to attract our eyeballs as much as possible, they're triggering in us an involuntary surge of feel-good brain chem- icals, including dopamine, serotonin and oxytocin, and a reduction of stress hormones. Neuroscientist Ramsay Brown calls this "brain hack- ing" — the writing of code to provoke a neurological re- sponse so you'll keep coming back. Algorithms in Instagram, Facebook and Twitter set up a proverbial slot machine where sometimes you win and sometimes you don't. They give "followers" in little red or blue notification areas to keep you coming back, pulling that proverbial slot machine lever hoping to get a dopamine hit. And all of this is in lieu of actual human connection. When you get a multitude of birthday wishes on Facebook, it feels good. On the other hand, how many of those wishes came from people you haven't seen or spo- ken to since you graduated high school 30 years ago? Content creators won't stop looking for ever more effective ways of hooking us so we need to manage our own use as a matter of self-care. For starters, there are a number of apps designed simply to track your phone usage to get a better, more conscious sense of how much you really use that contraption. As with all addictions, knowing whether you have a problem is the first step in healing. Rosen also suggests a gradual strategy for reduction in smartphone use by first announcing publicly your intention to cut back so that people won't expect imme- diate responses from you. Then, setting a timer, start with a 15-minute interval increasing over time with the goal to ulti- mately check your phone a maximum of every 30 minutes. At the end of each inter- val, allow a minute or two of phone time. As hard at it may seem, keep your smart- phone a good distance from where you sleep. Getting those notifications about a news story happening halfway around the world aren't nearly as important as a solid night's sleep. This is one place where the "Do Not Disturb" feature of the phone is invaluable. Not only does it turn off au- dible notifications, but it stops the screen lighting up and the phone buzzing. Law practice is stressful enough with- out a new, insidious, stress-inducing dis- traction to contend with. It's time that legal professionals got seriously conscious about their smartphone use, mindful of the negative effects it can have on mood, relationships, work and sleep. The app de- signers will only get more creative. So we need to be a step ahead of them to protect our mental health. LT uDoron Gold is a registered social worker who is also a former practising lawyer. He works with lawyers and law students in his role as a staff clinician and presenter with the Member Assistance Program as well as with members of the general public in his private psychotherapy practice. He's avail- able at dorongold.com. Creative thinkers need not apply BY ANTHONY DAIMSIS I f you haven't yet heard, AI is our profession's next watershed moment. In areas such as document review and contract drafting, that moment is already here. But industrial-age thinking by Ca- nadian law schools, law firms and even Ontario's law society overlook the imminent AI era. Creative lawyers will complement artificial intelli- gence, but our profession's structures inhibit creativity, which I suggest is to its peril. I often criticize my stu- dents for seemingly striving to reach merely "Wikipe- dia-level" legal knowledge. In truth, I don't blame them. When I ask my students whether they'd prefer to leave law school with a deep understanding of contract law and receive a B on their transcript or receive an A but barely understand more about contract law than they did before entering law school, the honest ones al- ways select the second option. Makes sense. We've built a system that prioritizes knowing the answer over knowing how to get to the answer. The potential disruption between these two points may see our profession incurring debts that will come due in the form of a bar populated by lawyers ill equipped to han- dle foreseeable changes to our profession in the form of AI, non-binary social issues and attacks on freedoms, to name only a few. The Law Society of Ontario, law firms and law schools are all to blame. Transcripts drive hiring. Everyone knows that if you don't meet a certain GPA, a law firm won't offer you an interview, let alone a job. Why? Law firms are populated with lawyers who know better than anyone that grades are hardly a measure of success or true legal knowledge. Lawyers know that, in many cases, all a student has to do is regurgitate class notes (be they correct or not) to an all-too-willing professor. We've all known stu- dents who were great exam writers but hardly great legal thinkers, just as we've known great legal thinkers who couldn't figure out the exam writing game. Why do lawyers forget this when they assess a candidate's po- tential? Why rely on markers known to hardly ref lect a candidate's true capacity and potential? Within a two- to three-hour block, law school exams want candidates to "spot" 15 to 20 issues and offer solu- tions. I'd like to meet a lawyer who has ever had a client offer a set of facts consisting of 20 issues and then ask that lawyer to spot and solve them in fewer than two to three hours. It's hard to imagine a less suitable method to test an individual's capacity to become a great law- yer than the method the Law Society of Ontario uses — multiple-choice questioning. Multiple-choice questions raise many concerns. But by far the most pernicious effect is that they reinforce an absolutist way of thinking by suggesting only one an- swer exists to a given problem. Absolutism is anathema to the legal profession. Or at least it should be. Consider the mindset of a multiple-choice question, which is the format used on the Law Society of Ontario's licensing examinations. A basic set of facts assumes an alleged breach of contract for a delivery truck rental. Candidates must choose which option best describes the alleged breach. This could be a breach of condition, breach of warranty, breach of good faith or a last choice, which is that con- tracts can never be breached. For our sake, assume that "a breach of condition" is the best answer. Without getting into the distinction be- tween warranties and conditions as contractual terms, it is enough to say that, when the answer is a condition, the likely alternative answer is warranty — or "breach of warranty" in this case. In multiple-choice testing, one candidate selects "breach of warranty" when the answer is "breach of condition." Another candidate selects the option that "contracts can never be breached" (which is an absurdly wrong answer). However, both candidates are equally wrong and deemed equally unqualified. This deeming is preposterous and yet is precisely how the law society assesses its candidates. Recently, Dr. Neil deGrasse Tyson offered a piercing parable admonishing the state of science in the United States. Currently, the science world prioritizes know- ing the answer instead of prioritizing knowing how to get to the answer, the latter defining intelligence and driving innovation. The legal profession should learn from his warning. Tyson's parable is simple. A prospective employer asks two candidates vying for the same job a simple set of questions. The first few ques- tions are typically mundane, biographical types until the decisive question is asked — the question determin- ing which candidate lands the job. "Did you notice the spiral sitting atop our building?" the interviewer asks. "Yes," answers the first candidate. The candidate is then asked how tall the spiral is. "It's 25 feet," says the candidate. "During my under- graduate studies in architecture, I memorized all spirals sitting atop our city's buildings." The interviewer is impressed. The second candidate's interview goes the same way until the fated question is asked. Then, she answers, "No, but give me five minutes." During those five minutes, she walks outside and notices how the sun casts a shadow of the spiral and measures that shadow's distance against the distance her own shadow casts. She returns to the interview and declares, "I'm not positive, but I'd guess somewhere be- tween 24 and 26 feet." The job goes to the first candidate. Skilled lawyers find original solutions to both new and old problems. Skillful lawyers succeed by know- ing how to think — they don't memorize what to think. But candidates who best memorize information get jobs. Yet, AI can memorize information better than hu- mans. But it can't yet think about information. So, who is to blame for this state of affairs? Law firms claim law schools don't produce "lawyer-ready" graduates. Law schools point out that GPAs and interviews designed to elicit sycophantic responses don't make candidates care about being lawyer-ready. Both views are irrelevant in the face of AI. Who will blink first? LT uProfessor Anthony Daimsis is director of the national program, a program that leads to a dual JD/LL.L degree, at the University of Ottawa Faculty of Law. He is also director of the common law's mooting program. u SPEAKER'S CORNER COMMENT The Lawyer Therapist Doron Gold

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