01 September 2005, by Ronwyn North
Ronwyn North LLB is a legal practice consultant whose firm Streeton Consulting (ph 9909 3266) conducted the Risk Management Study for LawCover. This article first appeared in Law Society Journal (Volume 36, June 1998, page 37).
HOW GOOD IS YOUR MEMORY? Good enough to protect you from a professional liability claim? How about your staff and your clients. Are you unnecessarily exposed to their memory failures?
There are several links between claims and memory that raise questions about the role of firms, as well as individuals, in taking steps to guard against memory failures.
Many lawyers involved in claims think they have excellent memories when the claims in which they are involved suggest otherwise. For example, claims where solicitors have forgotten or overlooked the law, a relevant fact, a critical step or whether advice was given etc.
Less often but still cause for concern, claims arise from oversights of staff, such as forgetting to lodge documents, order or check searches or pass on information. When we experience or observe such memory failures in ourselves or our staff should we be concerned that memory function is deteriorating? Can memory failures be avoided?
Also, a large number of claims come down to the word of the lawyer against the word of the client. Are all these clients lying? If instead clients are prone to confused recollection, is there anything lawyers can do, in addition to the obvious of keeping better-written records?
Mechanics of Memory
Whatever an individual’s memory strengths, research suggests that it is common for people, particularly from their late 30s onwards, to experience some anxiety about becoming forgetful. Since law firms have their fair share of ‘thirty something’ members and clients, these studies should be of considerable interest.
Memory is one of several information processing functions of the brain we call thinking and its two essential components are storage and recall of information. Scientists are just beginning to understand how the brain makes all this possible. One recent study suggests that brain systems for storage and recall of events are quite separate.
Whether you prefer the analogy with a filing system (in-tray, filing cabinet, neatly labelled files) or a computer (working data that needs to be saved regularly to named documents which are themselves saved in particular directories or folders), the essentials of how memory works seem to be:
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Paying attention: From the mass of information, something potentially worth knowing catches our attention and is selected for storage. (The risk is that important information loses the competition for our attention.)
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Storage in immediate memory: Unorganised, unclassified data is stored temporarily in an ‘in-tray’. Storage is limited to five to nine items. (The risk is that acquisition of new information occurs before the existing data has been manipulated or moved to more durable storage which in turn causes data to be dumped or wiped from temporary storage.)
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Storage in enduring memory: Information is manipulated or organised to some degree and located in the ‘filing cabinets’ of recent memory and lifetime memory. (The risk is that processing will not be sufficiently deep or meaningful to permit easy recall).
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Recall: Information is retrieved from storage and, most importantly, reassembled. In other words data is not the original. The original has in fact been destroyed in processing. (The risk is that something has been misfiled or otherwise rendered inaccessible, or that the reassembly is a poor replica of the original).
These mechanics of memory could help explain other studies showing, in contrast to what was once thought, that the types of memory problems complained of the most (ie lapses of forgetfulness or fluctuations) are caused more by information processing problems at the first two stages rather than the last two.
It seems that, in the absence of diseases such as dementia or chronic alcoholism only some memory functions are affected by age while others are completely unaffected. Further, those memory functions affected by age can be affected by lifestyle, health and attitudinal factors at any age.
It seems that as we get older, immediate memory and lifelong memory tend to remain intact. People retain the ability to remember five to nine items as soon as they are seen or heard, and lifetime memories continue being accessible and accumulated.
However, our age, lifestyle, health and attitudes can affect our ability to pay attention (including our ability to ignore distractions, switch between tasks, do several things at once, pick up where we left off), and the time it takes to learn (and recall) new things.
Memory Strategies
To what extent does the typical law firm workplace acknowledge memory problems and support creative use of memory strategies? This is critical because lack of understanding about how memory works makes it uncomfortable or indeed unacceptable in some circles for people to talk about memory concerns, or causes people to judge those with memory problems unduly harshly. Either way, the result is unnecessary anxiety which in turn impairs performance even further.
Becoming a memory-friendly firm involves much more than using notes and letters as the primary if not only, memory back-up strategies. It involves the firm’s whole approach to creating a work environment that values and supports remembering and in practical ways reduces the demands on memory and maximises the likelihood that information can be retrieved when required.
The list of strategies is endless but includes controlling noise and other distractions, simplifying work processes and work instructions, more creative use of aids to reinforce memory, particularly visual aids, avoiding information overload and repeating, chunking and highlighting important information, allowing time for questions and clarification, encouraging people to disclose memory concerns, giving permission to be reminded.
So how seriously does your firm take being memory-friendly?
References:
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"Remembering Well: How memory works and what to do when it doesn’t", 1998 Sargeant D and Unkenstein A, Allen and Unwin. (The authors introduce the concept of a “memory-friendly society” where the community supports memory changes in adults.)
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"Human Error", Reason J, 1995, Cambridge University Press.
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"Judgment and Choice: the psychology of decision", 1988 Hogarth R, John Wiley and Sons.
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"Explaining your way out of a claim", July 1995, North R, Law Society Journal.
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"Managing Client Expectations and Professional Risk", 1994, North R and P, Streeton Consulting.
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"The Brain’s Memory Helpers", 1996 Science News Vol 150.
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