Americans owe a combined $1.7 trillion in student loans, and the past few years have been a roller coaster ride. Now that the pandemic forbearance is over, what’s next? You may have your own debts, or you may be helping clients deal with these new pressures. What happens if you or your client can’t make a payment or can’t reallocate finances? Now that the pause is over and the bill collector is coming, what options are available to you and your clients?
This episode features attorney Latife Neu, who operates her own law firm specializing in student loans and bankruptcy. Student loan repayment is anything but simple, and the pieces are in constant flux. Loan policy has bounced between the Supreme Court and the White House, and the policies are anything but clear. Talk about student loans, parent plus loans, bankruptcy, the pause-restart-pause rules, and it gets complicated in a hurry. There’s nothing simple about this stew of public and private loan borrowing, forgiveness, and repayment. But we can help you understand the questions to ask and the paths to explore.
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Public Service Loan Forgiveness (PSLF)
IDR (Income Driven Repayment) Account Adjustment
More IDR Account Adjustment information
Garnishments and Offset Orders for Student Loans
Student Loan Bankruptcy Discharges and Limits (Oh, It’s Complicated)
Federal Rules On Discharging Student Loan (Justice Department)
IRS Student Loan Forgiveness Rules, IRS.gov
American Bar Association
Bar Association Litigation Section
Special thanks to our
Dave Scriven-Young: Hello everyone and welcome to Litigation Radio. I’m your host, Dave Scriven-Young. I’m a commercial and environmental litigator in the Chicago office of Peckar & Abramson which is recognized as the largest law firm serving the construction industry with 115 lawyers and 11 offices around the U.S.
On this show we talk to the country’s top litigators and judges to discover best practices in developing our careers, winning cases, getting more clients and building a sustainable practice. Please be sure to subscribe to the podcast on your favorite podcasting app to make sure you’re getting updated with future episodes. This podcast is brought to you by the Litigation Section of the American Bar Association. It’s where I make my home in the ABA. The Litigation Section provides litigators of all practice areas and resources we need to be successful advocates for our clients. Learn more at ambar.org/litigation.
Student loan debt has grown enormously in recent years and is now one of the largest forms of consumer borrowing in the country. Student debt has more than doubled over the last two decades as of March 2023, American borrowers owed more than $1.6 trillion in federal student loans with additional private loans bringing that total to above $1.7 trillion. In recent years, borrowers have gone on a bit of a rollercoaster ride with the Biden Loan Forgiveness Plan being proposed struck down by the Supreme Court and then revamped. This has let borrowers wondering what their options really are and how much they will actually need to pay back. So to answer some of those questions, I’m pleased to welcome Latife Neu to the show. Latife Neu is an attorney who practices in the areas of student loan, bankruptcy and guardianship matters at her law firm that she founded in Seattle. She actually grew up in the Pacific Northwest, attended the University of California Santa Cruz and later earned her law degree from Seattle University. Latife Neu opened her own law firm to serve individuals and families and she takes time to understand each client’s situations and objectives to ensure the best possible results in every case. Latife, welcome to the show.
Latife Neu: Hi Dave, happy to be here.
Dave Scriven-Young: Well, since the beginning of the COVID-19 pandemic, we’ve seen a lot of changes to the student loan program, so what’s going on with student loans right now?
Latife Neu: As you alluded, there has been a rollercoaster ride for borrowers. So I’m going to give you a two-pronged answer to this question, what’s going on right now? The thing we all know about is that the COVID era forbearance has ended. So the folks who have Department of Education Held Federal Student Loans enjoyed three and a half years of no payments and no interest accruing on their Department of Education Held Federal Student Loans. And now, with bills starting to hit people’s mailboxes and email boxes within the last few weeks and when folks log onto their servicer website, they’re seeing interest spinning on their student loan balances. There’s a new sense of urgency out there among federal borrowers in particular. And then concurrently with that, what I nailed int on as somebody who watches policy in the industry is I’m seeing that the Biden Administration is working really hard to Taylor policies that are meant to address this slow-moving student loan debt crisis that’s been building for at least 15 years now.
Dave Scriven-Young: Okay, so what’s going on with the forbearances? I mean, I know that interests are starting to accrue, are there any exceptions for folks out there? Is there any kind of wiggle room that the Federal Government is giving on that or it’s just a straight, “we’re back in business”
Latife Neu: “We are back in business.” That’s pretty much the surface answer and there are some sort of subsurface levers to push that I’m helping clients with. One in particular that I thought I might touch on later but let’s jump in right now is a program that has been very quietly rolled out that the administration is calling “the safe on ramp program” and for folks who want to go and lay eyes on the policies that I’m going to mention today probably, best source information will be at studentaid.gov. If you go to that website and search for the word “on ramp,” you’ll get information on this program. But it provides that people getting a federal — Department of Education Held Federal Student Loans will not face problems resulting from delinquency if they miss a payment between now and September 2024.
So that allows people who might not have the budget bandwidth to step right into their payment obligations now coming out of the COVID forbearance to miss a month. It would appear you can miss 10 more months without having any negative credit reporting consequences and those missed months as I’m reading the policy will be treated as forbearance internally. Since this is all new, it’s what I’m seeing in terms of publish policy, but none of us have yet seen how this exactly is going to be implemented.
Dave Scriven-Young: Got it, and is there like an application process for that or is that just with the policy?
And if you miss a month or miss a payment here and there, then it’ll just be a conservative forbearance?
Latife Neu: Right. So that’s just that the policy that’s out there but there’s no requirement or expectation of opting into it. It’s merely “this is how we’re going to treat your remissions of payments over the next year.”
Dave Scriven-Young: Got it. And then in terms of kind of the differences between federal student loans and private student loans. I assume private student loans have just continued to accrue the interest since the pandemic. Has there been any plan to kind of address what’s happening with folk’s private student loans?
Latife Neu: Right, I’m going to fall back and just give people a roadmap of what we’re talking about regarding Federal and Private Student Loans, just take a minute doing that. So any time I’m talking to a student loan borrower who’s struggling and needs to know their options. First of all, we figure out do we have federal student loans? Which are ones that are either made by or backed by the Federal Government or do we have purely private student loans, which have no government involvement and are more like a non-dischargeable credit card, right? With the same defenses available and so.
And within the federal loan silo, there are a division that I think is important to highlight right now and we’ll explain why later but there’s Department of Education held debt and those are the loans that are getting the goodies like the code forbearance. And then there are the older types of loans called “FFEL Loans,” which are not getting most of the good stuff that’s coming out of the current administration.
So one of the takeaways for all the busy people who might be listening to this; if you have the older type of loans that are Federal FFEL Loans, you can resolve that discrepancy by consolidating into the direct loan system and getting in line for the policies that I’m describing here today. So FFEL loans are federal, but they can be improved through consolidation. And then Dave, you just asked about that other pile of debt, private student loans and those are really pernicious.
There’s no two ways about it, private student loans again, non-dischargeable in bankruptcy. They have uncontrolled interest rates that could be sometimes even double-digit interest rates, co-signers and it’s really that the borrower is at the mercy of whatever the contract says. So no, there hasn’t been any significant progress with respect to private student loan options.
Dave Scriven-Young: Got it, and let me ask you from a personal point of view because I’m a parent of a college student and a parent of a high school senior. At some point, my college planning money will run out and I think we’ll probably have to get some parent student loans if you will. So, where does that kind of fall within the dichotomy that you just talked about? Is that more on the federal side subject to kind of these programs or is it more on the private side and or maybe both depending on what service that you go with.
Latife Neu: Right, great question. So generally, parents are steered into what are called Parent PLUS Loans, which are a federal loan vehicle and currently those Federal Parent PLUS Loans are direct loans. So that’s in that silo of federal loans that get the best possible treatment. That said, for Parent PLUS Loans, I’ll just put a word of caution out there. I also have a college student and a high school junior so I’m looking at the same questions. Parent PLUS Loans are the most disadvantageous of the federal loan vehicles that are out there.
So to the extent that the loans can be skewed towards student borrowing, those are going to have lower interest rates and better repayment options. So I would encourage families to strategically maximize student borrowing even if the parent’s intention is to help pay those off after the education is finished. Yeah, and we’ll circle back to the problems with Parent PLUS Loans going forward and then depending on the school that your child is enrolling in, you may also have to fill the gap through private loan borrowing and with respect to that, just proceed with caution.
Dave Scriven-Young: Got it. It’s interesting that talking about the forbearance kind of safe on ramp program that may not be fully advertised and people need to find out about that program, it kind of delves into my next question which is student loan forgiveness because I have a lot of friends in the public service sector who dealt with the forgiveness portion of the federal program. Talk about a rollercoaster ride, I think they were within the program then without the program. So tell us, not only what’s going on with public service of loan forgiveness, but just student loan forgiveness generally because I know — the Biden Administration has had some interesting things happen with that program.
Latife Neu: Right, so you’re probably alluding to the debt relief proposal that came out of the current administration early on, where there was a promise of either $10,000 or $20,000 dollars of debt relief right off the top being made available to people who earn less than a certain amount of money. This would have extinguished — this would have reached most student loan borrowers. It only was available to direct loan borrowers or Department of Education Held Loan Borrowers, remember that distinction. And it was I think so well publicized and it was so much enthusiasm that it naturally drew — in our political climate, drew opposition and lawsuits.
And since this is a law program, we will go into this really briefly. One of the lawsuits made it to the US Supreme Court, Biden versus Nebraska and the Supreme Court Ruled 6-3 on June 30 of this year that the Secretary of Education, Miguel Cardona did not have the power to waive student loans under the HEROES Act which was a vehicle under which this debt relief would have occurred.
So, I think that across the board that relief is pretty defunct, no one should expect that to happen. But you know concurrently with that, like I’ve alluded to the administration is working and I think this is why more under the radar just to propound disparate various disparate policies that try to piecemeal, address some of the problems that have led to the crisis we’re in now.
Dave Scriven-Young: Is there anything else that’s happening other than — can the safe on ramp program that we talked about?
Latife Neu: A number of things. Let’s circle back to Public Service Loan Forgiveness since I think you alluded to that earlier. PSLF which is what we call it. I think that program is very safe. It’s been around since 2007 and it really is the best game in town for people who work either in any government capacity or any 501(c)(3) or certain other public service jobs. It provides that after spending 10 years, 120 months with qualifying employment with qualifying loans, which are going to be federal loans and making qualifying payments.
The balance of the borrower’s federal loans, are extinguished tax-free. So I’ve seen a lot of people cruise across the finish line and it really is cause for celebration. So for your friends who are on track for that by all means, I think they can expect to have those programs available as long as they need them and they should absolutely take advantage of that. And the current the current administration has instituted certain fixes that resolved problems that had accrued with that program where communication from the government and the servicers didn’t fully educate borrowers about what it meant to have the right kind of loans or the right kind of payment plan.
So it allowed folks to harvest in time that would otherwise have been sort of improperly omitted from that 120-month count. So it brought a lot of people forward toward that 10-year finish line That was the PSLF waiver. You might have heard about and that has more or less closed up, but I think a lot of people were brought with either all the way to forgiveness ordinarily there. And there are numerous other programs so another program that I think is not eating much publicity, but it is a game changer for any borrower who has been out of school for a significant amount of time is something that’s being called the IDR Account Adjustment. Have you heard that term yet?
Dave Scriven-Young: I believe I have. Yes.
Latife Neu: You have. Okay. Well, you’re among the select few because most people I mention this to, aren’t aware of this program and it’s amazing. Going back, what IDR means is the “Income-driven repayment Options” that we sort of heard about overtime but a lot of borrowers have found availing themselves of income-driven repayment to be really confusing and almost prohibitive in terms of the barriers to getting into it and staying in it.
So, the administration has kind of fallen back and analyzed what has gone wrong with IDR, right? Income-driven Repayment and determined that it’s well documented that the Department of Education and the servicers working for the Department of Education have done just a really poor job of communicating why to get into the program, how to get into the program. And in fact, it’s documented that certain servicers have steered people away from the IDR program options in favor of easier programs for the servicer to implement such as forbearance. So because of errors and omissions by the DOE and its servicers and also just because of sort of mass confusion on the ground among borrowers.
There’s this acknowledgement that people who would have accrued a lot of time toward the 20 or 25-year finish line for forgiveness under IDR have fallen way short. To the extent that very few borrowers have actually gotten an IDR forgiveness or had gotten as of a couple years ago. So, this program was launched that they’re calling it — they’re doing a recount and the servicers are tasked with going back to the inception of each borrower’s oldest loans and recounting all of their accrued time toward that 20 or 25-year finish Line. And instead of only counting time that they were successfully in these flawed programs, the servicers are now instructed to count almost any time that the loans have existed.
So that means now for Income-driven Repayment purposes, we are going to get credit for any payment made — right? Any month you sent it any kind of money early, late, on-time, not enough money, that counts. Forbearance time, so any time you called your servicer and said “Hey I can’t pay” and they said “No problem. Let’s have a forbearance.” They’ll count that so almost any forbearance time and deferment time. I don’t know if you’re following — this changes the landscape from someone might have little or no time and income-driven repayment to suddenly, they have decades of time, right? In income-driven repayment because we’re counting everything except — almost everything except in school deferment or time in default.
So, when I’m talking with folks who borrowed in the 90s or in the early 2000s, you know in some cases we can analyze their loan history and determine that they are either passed what’s going to be deemed sufficient time in income-driven repayment, or they can strategize going forward with the knowledge that they’re almost finished with paying their student loans.
Dave Scriven-Young: Interesting. My next question is this system seems so complicated, overly complicated and I know you help student loan borrowers and I assume parents who are dealing with these issues as well. So when do borrowers typically come to you for help in your practice?
Latife Neu: Yeah, going to your comment about how confusing this is. I talk to really smart people all week long who are completely confused. So I’ll just put out there that there’s no shame if you have no idea what’s going on with your student loans. That’s really normal. I talk to lawyers, I talk to PhDs, people across the board who just — you know, you’re good at what you do and that doesn’t mean you understand your student loans.
It is confusing stuff, it’s unnecessarily confusing stuff currently. So usually, people reach out to me after they’ve been struggling for a while. So they’re losing sleep, they might be fielding collection calls. They’re unsure what they can do to deal with their student loans again, partly because the communication from servicers and from the Department of Education and from if they have private loans from the debt collectors who are after them are opaque. Sometimes because of their personal history, untrustworthy, they just don’t trust what they’re hearing from the authorities about what they can do.
So for that reason, most of the people I talk to are not in their 20s, right? They’re not fresh grads. They’re people who’ve been dragging these loans around for a while and they just hit a wall and they’re just not sure what to do next. So I’m more likely to talk to someone in their 60s than someone in their 20s, right? Like, “It’s time to talk to a professional and make a plan.”
Dave Scriven-Young: Right, I mean it sounds like it’s a weight around the neck of somebody who’s frankly, coming up to retirement age and probably wondering what they’re going to do with their student loans. I bet that’s a real issue for folks, professionals who are you know going to retire soon.
Latife Neu: Yeah, that’s a very real concern and we have those conversations often because this is — folks don’t really realize that this is a graying. So my oldest student loan client was 93, she’s deceased now. My clients in there, in their 80s, 70s, 60s and so on. Yeah, so what causes them to pick up the phone? Sometimes it’s a garnishment or a lawsuit or collection calls for a more proactive, planar types. It is just the realization that this can’t go on, right?
I need a new plan for dealing with this, people are considering getting married but they want to know whether that will harpoon their loved one’s finances if they bring their own debt into the marriage.
So we strategize about that and I get a lot of referrals from personal bankruptcy attorneys here in Washington state who have a debtor who’s filing a Chapter 7 or Chapter 13 Bankruptcy who had significant student loans and a demonstrated inability to pay those loans. And then we run an analysis regarding potential dischargeability in the bankruptcy context.
Dave Scriven-Young: Got it. And one of your practice areas as I understand, is student loan litigation. We talked about this a little bit. But what is kind of the typical procedural context where these litigation issues arise in the student loan context?
Latife Neu: Dave, there are two main types of student loan litigation. And you know, other sort of ancillary oddball situations that arise. But generally, one is a straightforward collection action. Where on a defaulted private student loan, the creditor or the downstream debt collector or debt buyer brings a state court lawsuit attempting to collect on that defaulted debt. And the other sort of more interesting and dynamic situation where we encounter this is in bankruptcy court where we’re seeking to discharge student loans along with the borrower’s other debt in a bankruptcy.
Dave Scriven-Young: Got it, and maybe this is a dumb question, but I’ll ask it anyway. So you mentioned private loans and kind of debt collectors that go along with it. So what about federal student loans? Do they kind of go through the same process like deal with a debt collector or do they have kind of their own way of dealing with it if folks don’t make payments on their federal student loan?
Latife Neu: Right. That’s not a dumb question at all, and I’m glad you brought it up. Yeah, because we’re dealing with the power of the Federal Government here on federal student loans, another takeaway is I never advise strategic default on federal student loans because you’re dealing with an entity that’s going to win. The consequences of being in default on your federal student loans are numerous and ongoing because under the Higher Education Act, there’s no statute of limitations. So even if you’re successfully under the radar for 20 years, when you pop up and try to get Social Security, there will be an offset order on your Social Security.
So in addition to Social Security offset, tax refund seizure, there’s also the power to bring an administrative wage garnishment. So the government does not need to go and get a judgment in state court or federal court. They just let your employer know, “Hey, send us some of that.” So no. There’s almost never a lawsuit on federal student loans except in very rare circumstances where the Department of Justice will occasionally bring a collection lawsuit against, generally against people who function as who aren’t wage earners. So they have their own business. So an administrative wage garnishment isn’t productive.
Dave Scriven-Young: Okay, that’s good to know. We also talked a lot about bankruptcy court litigation. Why does that context, procedural context take such a large role in your student loan practice?
Latife Neu: There’s no other mechanism, Dave, to put the borrower in the driver’s seat regarding the disposition of their student loans outside of federal bankruptcy court. I know that does close the door for a lot of borrowers who want to have their day, right? They want to be able to tell someone about how they can’t pay their loans. Well, there’s not a forum to do that except in bankruptcy court. So when that resolution is appropriate in light of income and assets and overall debt mix, that is the forum in which we can bring forward an adversary proceeding and either bring the parties to the table or get in front of a judge for determination of whether there’s something to do with this overwhelming student loan debt.
Dave Scriven-Young: I mean you hear a lot about discharge for student loans. Has a law surrounding that changed recently or is it just pretty much is it a hard standard to meet to get student loans discharged?
Latife Neu: Right. It has changed, but not recently. In the distant past back in the 80s and 90s, there was discharge of federal student loans, which were really the only type of student loan out there after a certain amount of years of repayment had passed, at least that’s how it evolved, and by the time BAPCPA occurred, which was the bankruptcy overhaul in 2005, that period had extended to, I believe it was seven years had to be shown before discharge could be achieved. And with the passage of the most recent bankruptcy law in 2005, that was closed entirely. So federal student loans were made entirely non-dischargeable and private student loans as defined in the bankruptcy code were also made non-dischargeable.
And probably not coincidentally, with private student loans now being completely non-dischargeable, the private lending industry boomed, and it’s only been since 2005 that we’ve seen the explosive growth of predatory, or not always predatory, but of private student loan lending.
Dave Scriven-Young: So what are the defenses that folks can raise in bankruptcy court litigation then?
Latife Neu: Yeah. So in bankruptcy under Section 523A8, we have to set up the student loan adversary proceeding, which is our name for a lawsuit in bankruptcy, in such a way that we can show that if the borrower were forced to repay her student loans, an undue hardship to the borrower, to the debtor or her dependents would result. So that’s the framework of what we have to show, and then we also have to meet what’s called the Brunner standard, which was a case that gave meaning to the term undue hardship in 523A8, and that requires us showing that the borrower can’t currently pay her student loans. So we just lay out the numbers. There’s this much of a payment and that much money left at the end of the month and it just doesn’t cover it. So current inability to pay, future inability to pay, which kind of requires a crystal ball and past good faith efforts, so showing that the person hasn’t been completely negligent in dealing with their student loans since taking the loans, and that’s where having a bit more history behind the facts of the payment history is useful.
Dave Scriven-Young: Understood. Okay, so looking into the future, into that crystal ball, what are some legal issues surrounding student loan borrowers that you see coming up in the future?
Latife Neu: Yeah, Dave, there are a number of issues that I think need to be dealt with and one is the tax consequences on forgiven debt under income driven repayment. And for attorneys in particular, you know, we’re policy people and so it’s my attorney-clients who are saying, look, I’m aware that if I get my income driven repayment forgiveness, I might end up getting a bill from the IRS, right? And that’s a huge problem, because if you’re getting, let’s say, $100,000 forgiven and the IRS thinks that that means you’ve just earned $100,000 in that year, that can be a huge problem, and maybe that’s not even a tradeoff you want.
So currently there’s a law on the books that provides that any forgiveness or discharge of any student loan through the end of 2025 will not result in a taxable event. But then the logical next question is, what happens if I get my IDR forgiveness in January 2026? Well, at this point, we don’t have an answer for that. It’s my expectation that tax bomb will be diffused before we get to it, but given the hit and miss functionality of Congress, that’s not a sure thing. So that’s one issue that really needs to be addressed, you know, somewhat urgently within the next year and a half before we hit the end of that 2025 sunset.
Another policy that I think needs to be addressed is what happens to Parent PLUS borrowers? Because, Dave, we haven’t really talked about all the downsides of Parent PLUS options, but let’s just leave it at the fact that a lot of the policies that are providing relief do not fully reach Parent PLUS borrowers and these are the folks who I think are really feeling the squeeze right now. So I’m very hopeful that options for Parent PLUS borrowers are improved urgently. And finally, I think that student loan discharge does need to be seriously considered, and there is momentum for think, you know, it comes up every year, practically every year in Congress and just hasn’t passed yet, but I think something does need to move in the discharge space.
Dave Scriven-Young: Well, we’ll be looking for, hopefully, resolutions to those issues, and we are coming up to our end of our time together, so do you have any last thoughts for folks who have bankruptcy and perhaps other student loan issues on their minds?
Latife Neu: You know one of the thoughts, one of the takeaways I tend to tell people when they sit with me and they’re losing sleep over their huge balances is at least particularly for federal student loans, don’t worry about the overall number, don’t worry about the big balance. Your challenge is to find the program that will minimize your outflow from a budgetary perspective, so worry about getting your programs in place so that you can manage your payments, and then just put one foot in front of the other and it’s going to be okay.
Dave Scriven-Young: Love that. And if folks wanted to reach out to you to talk through any of these issues, what’s the best way for them to reach you?
Latife Neu: Sure. So my website is neulegal.com, N-E-U-L-E-G-A-L.com. There’s a contact me button on the website. I can consult with folks anywhere in the country on federal student loan questions, and I can help connect people in their jurisdictions, attorneys in their jurisdictions who might be able to provide assistance regarding private loan questions, which of course, are related to state and contract law.
Dave Scriven-Young: Wonderful. Well, Latife Neu, thank you so much for being on the show today. I think you’ve provided folks with a lot of food for thought, a lot of excellent tips so thank you so much.
Latife Neu: Thanks, Dave.
Dave Scriven-Young: Thanks to Litigation Section Premier Sponsor Roundtable Group for sponsoring this podcast. Roundtable Group is an expert witness search and referral service with decades of experience in a comprehensive array of academic and industry relationships that further enhance the expert search capabilities of attorneys. Learn more at roundtablegroup.com.
And now it’s time for a quick tip from the ABA Litigation Section’s Mental Health & Wellness Task Force, and I’d like to welcome Beth Fenton for her first tip on the podcast. Beth is a partner in the Delaware office of Ballard Spahr, where she litigates and tries cases involving business torts, shareholder and post-closing disputes, antitrust issues, piercing the corporate veil matters, and enforcement of restrictive covenants with a particular focus on the Delaware Court of Chancery. Welcome to the show, Beth.
Beth Fenton: Thank you so much, Dave. And I am an avid listener of Litigation Radio, and I’m thrilled to be here today. I’m going to start our monthly mental health and wellness tip, which is about managing email anxiety by telling a personal story. A couple months ago, I was flying back home from an ABA Litigation Section meeting and I finally had a chance to see the movie called BlackBerry, and it covers the rise and fall of Research in Motion Limited, the Canadian technology company responsible for developing the BlackBerry. If you remember life before email was ubiquitous, you probably also remember the BlackBerry. It was a must-have accessory for lawyers, but it fell from fashion after smartphones came out.
I want to give you a flavor of how attached I was to my BlackBerry. My children are now 16 and 13. When I was expecting them, my husband, who is a teacher and never had a BlackBerry made a request of me namely that I leave my BlackBerry behind when we entered the delivery room. I agreed to his request, and fortunately, they were both born on the weekend. I assure you that I was not alone in my addiction, or should I say commitment to the device. So seeing the BlackBerry movie brought to mind memories of that time of my life, the time before I had a smartphone. I’d be lying if I didn’t acknowledge the freedom having the BlackBerry gave me. I was able to work in Big Law from 2005 to 2013 and become a partner during my first parental leave, in part because I could address client and colleague concerns from anywhere and of course, anytime. Since that time, email is just the tip of the communication iceberg though. Now we face a daily barrage of communications via text, Teams, Slack, Skype, other messaging apps and social media.
So it really is no surprise that email can be a major source of anxiety for those of us who are prone to it. Email anxiety stems from many causes. To name a few, the sheer volume, the pace and mismatched expectations about response time. There’s also the fact that we do need to step away from email during the workday so that we can do what I call the serious brain work that is the focused attention to a brief, a deposition, a hearing, or a Trial. The distraction of email is not conducive to the creativity, strategic thinking, and attention to detail those core tasks of litigation lawyering require. And yet, during the pandemic and now with hybrid work, the volume and pace of email exploded, as did my anxiety about keeping up with it. I’m sure I’m not alone in this challenge either, and I’ve tried lots of systems ranging from David Allen’s ‘Getting Things Done’ to Paul H. Burton’s `Quietspacing’.
The ABA Law Practice Division book ‘Microsoft Outlook for Legal Professionals’ is targeted to lawyers and is excellent for managing email as well. No system is perfect, but I found these resources useful in keeping my inbox manageable. Here are 10 strategies to reduce email anxiety, unsubscribe ruthlessly. Search for the word unsubscribe in your email, and then either unsubscribe or manage your email preferences. Then there are the Outlook specific tips for those of us who use Outlook, which I suspect is many of us. I use the rules feature in Outlook to have emails go directly into a folder. So, for example, we all get lots of emails every day from newsletters, the ABA, other professional organizations, I have those kinds of emails put into a folder automatically that I check a couple of times per day, so I don’t get those notifications that interrupt our train of thought so frequently.
My next tip relates to that as a default, set your notifications to silent. What I do is I have the Outlook icon set up so that if I have new email, there’s a little folder on the Outlook icon, and I know that I have email, but I’m not interrupted by those little beeps and blings. The other tip I have is before reflexively hitting reply all, think about whether everyone actually must receive your reply. This one requires some nuance because some people have different views about this, but I really try to be careful about replying all because I don’t want other people to get email anxiety frankly. Sometimes you get an email that says something like, “Please call me”. I know that as soon as I get an email like that, I have the temptation to think that I did something wrong. Usually that’s not the case. My advice for that kind of email is to take a deep breath, walk around the hall, have a drink of water, and then make the call. Even if it’s unpleasant news, it’s better to go ahead and deal with it most of the time.
The next tip is manage expectations about response time. I’m a night owl and I always tell my teams, “Look, if you get an email from me in the middle of the night or after you’re already in bed, unless we’re in Trial and on a 24/7 schedule, which even then, I mean, I want you to get your sleep, I don’t expect an immediate response. I’m going to tell you if I need one.” Haley Maple, my fellow Mental Health & Wellness Committee member has a note on her email that says, “My working hours and your working hours may be different. Please do not feel obligated to reply outside your normal working hours.” I think that’s a great way to handle it. If you get an email that makes you angry, stressed, defensive, or frustrated, resist the temptation to respond immediately. Draft an email to yourself with what you want to say and save it in drafts. Most of the time, it’s not the best idea to send it. Along the same lines, when you do get an email that elicits a negative reaction, remember that email is a limited communication tool. There is no tone in email and your reading of it may not be accurate. Some people who write short emails, it may come across as rude or brusque. Sometimes an email is just short because the spender is traveling, multitasking, or just having a bad day.
My second to last tip is pick up the phone. Sometimes there is just no substitute for talking on the phone. And finally, I gave up my BlackBerry 10 years ago for a smartphone. Many of us did so when bring your own device became the standard. But over the summer, I got a second cell phone that is just for work and it really has done a lot to reduce my email anxiety. Remember that email is a communication tool. It’s not always the right tool for the job. A lot of email anxiety stems from using email as a to-do list or a scheduler, or to communicate in real time. Other tools are better suited to that task. Use them.
Dave Scriven-Young: Well Beth, thank you so much for being on the show today and for your tips. I know that you have an announcement for folks in the Litigation Section dealing with Mental Health & Wellness Task Force. Can you tell us a little bit about the book club that you guys are running?
Beth Fenton: Yes, David, I’d love to tell you about the book club. We’ve had this in the works for a while. We finally are able to launch next month. The first meeting is going to be Tuesday, December 12 and it will start at 10:00, a.m. Pacific Time, 11:00 Mountain Time, noon Central Time and 1:00 Eastern Time. We’re going to have a group of friends and colleagues. We’re going to read a chapter of a new ABA book about women lawyers and resilience and other mental health topics and over the course of the year, we’re going to plan to meet quarterly and just get to know each other, share tips like what we just talked about, and help ourselves to acknowledge the stress that comes with the practice of law, but all of the wonderful experiences we get to do as lawyers, even though sometimes it’s stressful.
Dave Scriven-Young: So, Beth, where can folks find more information about the book club?
Beth Fento: For the book club’s December 12 meeting, there’ll be information in the show notes linking you to the registration. I’m sure it’s not surprising that it’s going to be virtual, it’s for everyone, and we look forward to getting to know you better and as Dave always says, the best way to get to know each other better is in person. So hopefully we can build on the community we make through this book club in future section meetings.
Dave Scriven-Young: Well, thanks so much for being on the show, and thanks for all of your good work with the Mental Health & Wellness Task Force.
Beth Fenton: Thanks, Dave.
Dave Scriven-Young: Well, and that’s all we have for our show today, and I’d love to hear your thoughts about today’s episode.
If you have comments or question you’d like for me to answer on an upcoming show, you can contact me at [email protected] and connect with me on social. I’m @attorneydsy on LinkedIn, Instagram, X, and Facebook. You can also connect with the ABA Litigation Section on those platforms as well. But as much as I’d like to connect with you online, as Beth says, nothing beats meeting you in person at one of our next Litigation Section events, so please make plans to join us at the 2024 Environmental and Energy, Mass Torts and Products Liability Litigation Committee’s Joint Regional CLE Program in Avon, Colorado taking place January 31 through February 2. Join us for eight plenary presentations on hot litigation topics including committee specific content, broader litigation interests, and ethics in addition to an agenda of diverse educational sessions. There will be time to enjoy outdoor activities and network with your colleagues to find out more and for registration information, please go to ambar.org/jointcle.
If you like the show, please help spread the word by help sharing the link to this episode with a friend or through a post on social, and invite others to join the show and community. If you want to leave a review over at Apple podcasts, it’s incredibly helpful. Even a quick rating at Spotify is super helpful as well. And finally, I want to quickly thank some folks who make this show possible. Thanks to Michelle Oberts, who’s on staff with the Litigation Section. Thanks also goes out to the co-chairs of the Litigation Section’s audio content committee, Haley Maple and Tyler Trew. Thank you to the audio professionals from Legal Talk Network, and last but not least, thank you so much for listening. I’ll see you next time.