Easy as A, B, C: Maturity and the Plight of the Litigator in the Legal Profession

Easy as A, B, C:

Maturity and the Plight of the Litigator in the Legal Profession

Recently, I saw the most trendy, upscale Justice on the Texas Supreme Court introduce an attractive new law clerk, also an attractive, voguish young woman, and it made me consider style versus substance? How can snappy young lawyers dressed to kill have the experience that years of legal battles give a seasoned litigator? It takes time, and handling thousands of files. So how can someone who just graduated from law school advise the highest court in our state? Maybe they should just look up case law at first?

Decompressing after another long conference call negotiating, I got off the phone and thought how many arguments I’d survived in 25 years in the legal profession. Sometimes it feels like all I do is quarrel. Any lawyer’s advocacy can result in conflict—it’s part of the job; if you play football you have to be ready to get hit. After every fight I wonder what I could have done or said differently, which is not an easy thing to do. Self-criticism is important, and we learn the best through adversity.

Without years of study and experience coming from preparing for disagreements and then plowing through the client’s legal and factual points from their frame of reference; young lawyers can’t know how to accept stressful encounters. Until they’ve lived through enough bloodshed to stay calm, engaged, and strategic, even during the opponent’s barrage, they don’t realize the toll taken by advocacy. Even though many young lawyers have early professional opportunities, will they pay attention to the old warriors, or does law school stamp out narcissistic upstarts one-after-the-other, constantly seeking to be right, or win above all other priorities?

Lawyers have clients, and we all must study the law which applies to our client’s story. By definition, the question before the lawyer is an obstacle or complication of our client which requires a lawyer’s assistance. The client’s pickle usually contains an antagonist represented by opposing counsel. This is the stock-and-trade of the legal profession. But there’s more of a nuance between the Main Character in the story and the Protagonist in the story. Lawyers who learn this difference are far more productive. The Main Character (Client) represents the audience’s eyes into the story; the Protagonist (Lawyer) pursues the goal of the story.

Law students practice debate and their professors fight circumlocution from the first day of law school; however, young lawyers don't even realize how oblique their opponent’s references will be when there isn’t much intelligence coming from the other side (as opposed to a law professor). What is the best way to oppose one-sided, unjustifiable positions? Surely it doesn’t include yelling, profanity, threatening sanctions, or discourteous behavior we called "Rambo" litigation back in the 1990s; however, sometimes as we go deeper into an argument, we only convince ourselves, the stronger we force ourselves over opposing counsel.

The way I break this down is just like A, B, C:

Adversity, conflict, or the disagreement of parties in a lawsuit (dialectical reality) is very common for any practicing lawyer. Often the facts of the lawsuit or the way the facts were communicated by your client put the lawyer in a bad position. After years of battles, a seasoned lawyer can survive with the professional perspective that “at least all I have to do is represent my client; I don’t have to take them home!” Older lawyers develop thick skin and grey hair on their way back and forth to the courthouse. Many times the lawyer just can’t take no for an answer; resulting in an inevitable argument and heated negotiations. Most people hate lawyers; but they’ll often tell you they sure like their own?! I learned early that this profession was tough, even though my dad said I'd never have callouses on my hands. It is better for the heart and soul to at least try to reach an agreement that is positive for both parties, although if it comes to a fight, we must do it well for our client.

[The Texas Legislature in their infinite wisdom recently passed a law labeled Senate Bill 534, adding to the lawyer’s oath of office set out in the Government Code, that all incoming lawyers who are licensed by the State to practice law, must also swear: (among their other constitutional duties) to “conduct oneself with integrity and civility in dealing and communicating with the court and all parties.” The bill was signed into law by Gov. Abbott (himself a lawyer) and took effect on September 1, 2015. Yet another attempt by the bar to make civil behavior among its members a cornerstone of the legal profession].

Belief in the position you must take, or the advocacy of the side you represent; the B doesn’t stand for blindness. Well-prepared lawyers know somewhat how the other side will argue, and they fight hard for their position, often against long odds. Reality has to be pushed into the sub-conscious sometimes and one has to internally and externally be consistent in order to be believable. It’s hard not to use hyperbole in place of logic; however if you don’t believe in your argument it probably won’t come across as credible. Yet there's the risk of cognitive dissonance; allowing our beliefs to acclimate to our argument, despite what is apparent. By pushing the opponent farther and farther away, the chances at reaching an agreement become less likely. Although many a lawyer has been deceived by their client, it depends on the case as to whether the lawyer really needs to know the truth; sometimes in order to pursue the goal of the story the lawyer merely needs to be prepared to argue their side and answer logical responses. It takes experience to know how much information is enough. A good example of this is the 1996 film, Primal Fear, with Ed Norton & Richard Gere. Trust me.

Consequences of the argument and the emotional or behavioral requirements required to become an advocate in a situation where the outcome of failure can be extremely unpleasant: I’ve known defense attorneys who take on a “God-complex” when defending a death-penalty case. It’s “Robin hood” taken to the extreme. One cannot always protect their client from their own misdeeds, or even injustice at the hands of the court. The balanced lawyer keeps an even keel, despite the highs of winning and lows of losing. Comparisons kill. Every case is unique, and hopefully in the end, justice prevails despite our flaws. The goal of negotiations should be to find agreement or at least try to find a solution that works for both people involved. Arguing a point just to be adversarial is unproductive, unfair, narcissistic. Each issue addressed is an opportunity to show preparation and the intellect it takes to apply the facts of the story to the law of the case. Law school exams cover an entire semester in one test. Young lawyers soon discover that exams mirror life. Sometimes a lawyer gets but one chance to make or break the case, so they must be vigilant and ready when called upon to argue. That's what is called the burden of proof. Often the case's outcome was destined, the lawyer merely secured a fair process on the road to perdition. The moral of the story is at times, that "it is up to the lawyers to make straight in the desert, a highway for God’s wrath."

Sometimes my dreams contain an escape from Viet Cong sniper fire in a Huey gunship during the Vietnam war. It’s not like litigation rises to the adventure of a firefight during the battle of Ong Thanh; yet, as if in the fog of war, sometimes I rise up from the smoky rice fields trying to strap-in fellow soldiers, wounded and bleeding, as the gunner sprays down a protective .50 cal. gauntlet against these deadly pursuers. Battle is battle, and the same fight or flight stress which affect humans physically and psychologically, manifests daily in litigators just as they did the young soldiers of Vietnam, although surely not as severely. As a non-veteran, are my dreams the result of too much war history, or do they play out in my subconscious the fiery chaos of the battlefield during the last stages of an epic confrontation, like a jury trial?

Finally, there is the topic of the consequences of the high-stakes, high-pressure practice of law which causes greater stress on attorneys as professionals than any other group. A 2016 trailblazing study of over 19,000 lawyers shows an alarming amount of substance abuse, depression, anxiety, and acutely poor mental health among all strata of the profession. Reaching a crisis point, and not being studied seriously in a generation, this study is frightening, and a stark dose of reality, especially for the young lawyers just 10 years or less into the practice of law. Cited here by the Texas Bar Journal (March 2016):

http://heinonline.org/HOL/Page?handle=hein.barjournals/texbarj0079&size=2&collection=texbarj&id=226

©Mark H. Pillsbury