Lawyers and Life in the Law | The Better Chancery Practice Blog

Making Your Legal Life Easier

July 6, 2015 § 2 Comments

It’s no secret that the legal profession is one of the most stressful there is. Stress takes its toll in the form of burnout, substance abuse, failing relationships, depression, and even suicide.

The way that you practice law can add to or alleviate your stress. Here are a few things you can do to make your legal life easier:

Avoid putting yourself in difficult situations. Answer the discovery early. You can always supplement it later to make it meet your exacting standards. Don’t keep putting things off until you face three or four simultaneous, crushing deadlines. Deal with unpleasant things first, so you can give your attention to and enjoy dealing with the pleasant ones.
Forgive yourself. You are your own worst critic. If you err or even fail, pick yourself up and dust yourself off, analyze what you did wrong, fix it as best you can, and move on to the next thing. And quit beating yourself up about it.
Schedule sanely. No one can or should try a contested divorce on Monday and Tuesday, with a break for an hour Tuesday to argue a motion in county court, then a contested probated claim Wednesday morning, followed by depositions Wednesday afternoon. Then six appointments Thursday morning, with three Social Security hearings Thursday afternoon. And winding up the week with a temporary hearing and a contempt two counties distant. Give yourself some time to breathe. You are not Superman or Wonderwoman.
Let your secretaries be your shock absorbers. Don’t avoid your clients; they need to communicate with you. By all means, return your phone calls, but don’t let them interrupt you every few minutes with a barrage of what-ifs and speculation. Manage your own time; don’t let it manage you.
Underpromise and overdeliver. Temper your clients’ expectations with reality. Never promise what you know you can’t accomplish, and then blame it on the judge or that scoundrel attorney on the other side. When you tell your clients that, realistically, they have an uphill climb to modify custody, but you will give it your best shot, they not only will appreciate your candor, but, if you prevail they will marvel at your legal skill; if you don’t, they at least understand why.
Be objective. It’s your client’s battle, not yours. Don’t let it get personal. You are there to represent your client, not to be your client’s alter ego. That lawyer on the other side is your opponent in this case, not your personal enemy.
Get organized. Put systems in place to help you deal with your business in a rational manner. The more haphazard and disorganized you are, the more you will have to deal with the unexpected and overwhelming.

I don’t usually share my personal correspondence with others, but since most of you are regular readers, I felt that it would be of some benefit to you to read this emotional email I received last week:

Dear Beloved

I write to you in good faith and hoping that you will understand the importance of my email. My decision to contact you is because I have been recently diagnosed with Cancer and the doctor said I have less than 6 weeks to live.

Since this sudden news was announced to me, I have been reflecting over my life in the past. It is painful that after over 24 years of peaceful marriage with my late husband, we had no child of our own that will inherit our numerous wealth. In the past, I have made reasonable donations to the victims of Earthquake in Haiti and recently to the same victims in Japan and Thailand. Now that my health is gradually deteriorating, I cannot continue to do all these by myself any more.

Because I have no relation, me and my husband grow up as orphans in Orphanage homes that is why I am making everything possible to make sure half of my funds go to Orphanage homes hence I can no more handle this Charity I please that you should complete this program once you receive the Funds which was deposited in Freedom Security Bank, take half of the total funds for yourself and use the half for charity and also build Charity Foundation.

I strongly desire to reach out to the poor and needy people, but I would prefer to continue this with the assistance of a kind person. I want you to answer the following questions, (1) If I donate (32.5) Thirty Tow Million five Hundred Thousand United States Dollars to you, which is all I have in this world can you be able to utilize it wisely to achieve my heart desire of supporting poor people around you? (3)Will you open a charity foundation in the name of Me and my late husband and Please reply me as soon as possible.

If you are ready get back to me with the below details.

1 your full name

2 your country name

3 your Telephone number

4 your Present Occupation

Yours Faithfully.

Mrs Ann Williams

Doesn’t that just tear at your heart?

Now, I don’t have anything against orphanages or Orphanage homes or trusts or rich people who can’t figure out how to spend their millions, but I think I’ll pass on Ms. Williams’s proposition for several reasons.

For one thing, I do not know Ms. Williams. For another, anyone who addresses me as “beloved” at one end of her correspondence and then has to ask my “full name,” country name, and occupation … well, that just kind of confuses my emotions. Her incoherent rambling does not reassure me. Oh, and this is transparently and patently a scam.

I get one or two emails like this every month. I am sure you do as well. I always think to myself “Who would be crazy enough to fall for something like this?” and then I remember that a wealthy Meridianite some years ago lost nearly $50,000 in a similar scam. He was a prominent businessman who should have known better — and didn’t need the money that was dangled before his nose — and just got greedy at the idea of money for nothing.

So, “dear beloved” readers, I encourage you to trash these easy-money emails before you, too, get burned.

Moving Beyond Thought

May 21, 2015 § 6 Comments

The law is a rational convention. No wonder, then, that it attracts thinkers — those among us who rely on thought and logic as our primary means of understanding and relating to the world in which we live.

In law school, we are taught to use thought and logic in our approach to the law.

But, it seems to me, thought and logic are only two of many approaches to grasping reality — approaches, not reality itself — and because reality has so many variables and is so complex, limiting ourselves to those approaches alone may not produce a complete comprehension of the truth. And isn’t grasping the truth what the law should be about?

When I ran across some passages from Eckhart Tolle’s Stillness Speaks, I found them enlightening and helpful in understanding the distinction between what we think we know, and what is real. I hope you find these passages of some use:

Most people spend their entire life imprisoned within the confines of their own thoughts. They never go beyond a narrow, mind-made, personalized sense of self that is conditioned by the past.

In you, as in each human being, there is a dimension of consciousness far deeper than thought. It is the very essence of who you are. We may call it presence, awareness, the unconditioned consciousness. In the ancient teachings, it is the Christ within, or your Buddha nature.

Finding that dimension frees you and the world from the suffering you inflict on yourself and others when the mind-made “little me” is all you know and runs your life. Love, joy, creative expansion, and lasting inner peace cannot come into your life except through that unconditioned dimension of consciousness.

If you can recognize, even occasionally, the thoughts that go through your mind as simply thoughts, if you can witness your own mental-emotional reactive patterns as they happen, then that dimension is already emerging in you as the awareness in which thoughts and emotions happen – the timeless inner space in which the content of your life unfolds.

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The stream of thinking has enormous momentum that can easily drag you along with it. Every thought pretends that it matters so much. It wants to draw your attention in completely.

Here is a new spiritual practice for you: don’t take your thoughts too seriously.

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How easy it is for people to become trapped in their conceptual prisons.

The human mind, in its desire to know, understand, and control, mistakes its opinions and viewpoints for the truth. It says: This is how it is. You have to be larger than thought to realize that however you interpret “your life” or someone else’s life or behavior, however you judge any situation, it is no more than a viewpoint, one of many possible perspectives. It is no more than a bundle of thoughts. But reality is one unified whole, in which all things are interwoven, where nothing exists in and by itself. Thinking fragments reality – it cuts it up into conceptual bits and pieces.

The thinking mind is a useful and powerful tool, but it is also very limiting when it takes over your life completely, when you don’t realize that it is only a small aspect of the consciousness that you are.

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Wisdom is not a product of thought. The deep knowing that is wisdom arises through the simple act of giving someone or something your full attention. Attention is primordial intelligence, consciousness itself. It dissolves the barriers created by conceptual thought, and with this comes the recognition that nothing exists in and by itself. It joins the perceiver and the perceived in a unifying field of awareness. It is the healer of separation.

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When you no longer believe everything you think, you step out of thought and see clearly that the thinker is not who you are.

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Prejudice of any kind implies that you are identified with the thinking mind. It means that you don’t see the other human being anymore, but only your concept of that human being. To reduce the aliveness of that other human being to a concept is already a form of violence.

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Become at ease with “not knowing.” This takes you beyond the mind because the mind is always trying to conclude and interpret. It is afraid of not knowing. So, when you can be at ease with not knowing, you have already gone beyond the mind. A deeper knowing that is nonconceptual then arises out of that state.

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In don’t know about you, but I find it liberating to understand that the rational approach that is so necessary to the law is not the only way to interact with the world. Indeed, it is not — and should not be — the only way to interact with the law. There are deeper ways of understanding, if we will only use them.

And I know that some pan Tolle for his eclecticism. I agree that he’s no Nietzsche, but we shouldn’t snub a valuable message because the messenger isn’t sophisticated enough.

I found these passages in the May issue of The Sun Magazine, which I commend to any of you who are seeking a deeper understanding of human nature, and not merely confirmation of your existing notions.

Garbage in, Garbage out

April 29, 2015 § 4 Comments

Output often bears a marked resemblance to input.

One cannot expect to emulate the deep luster and luxe of mahogany with coarse plywood. Nor does ground round yield an acceptable chateaubriand. In either case, the product will look shabbily like the original material.

So why should we expect that the cultural garbage that we daily consume in the form of trash novels (for the few of us who still read), situation comedies, reality dance and bachelor shows, alarmist “news” programs, and television “dramas,” will produce from us any more refined output than the quality of what we have consumed?

What do these rubbish add to our store of wisdom, or our deeper understanding of human nature, or our grasp of how other cultures view the world, or how we can make things better?

This is not to suggest that one should not add a little cultural cotton candy, or broadcast Ben & Jerry’s, or reading Reese’s peanut butter cups to one’s life every now and then. No. What I am saying is that a steady diet of that stuff will transform you from a lithe, supple thinker into a bloated, lazy advocacy short-cutter.

Before I entered law school, a wise judge told me that the more exposure one is able get to the great ideas, to the history behind the way things are, to the principles that influence people in their daily lives, the better one can understand how to use the tools of the legal profession for the benefit of one’s clients. That process takes place over a lifetime, and it does not end when one graduates from law school.

We learn much of what we come to know from our experiences. You decide what you are learning by the experiences you choose.

Anderson made a similar point recently on his blog with reference to writing: the best way to learn the art of persuasive writing is to read persuasive writers.

The quality of what you produce depends on the quality of the raw materials used.

The Honorable Profession

March 23, 2015 § 1 Comment

A piece on a law listserv recently talked about the popular perception of lawyers as dishonest, and contrasted it with Abraham Lincoln’s reputation as an honest lawyer and politician.

What caught my eye in the short essay was this quote from Mr. Lincoln:

There is a vague popular belief that lawyers are necessarily dishonest…the impression is common, almost universal. Let no young man choosing the law for a calling for a moment yield to the popular belief—resolve to be honest at all events; and if in your own judgment you cannot be an honest lawyer, resolve to be honest without being a lawyer.

I don’t know about his characterization as “vague.” These days, My impression is that the popular belief is more vivid than vague.

And who can blame folks, what with the several lawyer scandals that have made headlines. Thank goodness for the financiers, securities frauds, and members of congress who have bumped the legal profession off the unpopularity bulletin boards lately.

One thing that strikes me in Mr. Lincoln’s statement is that juxtaposition of the words “necessarily dishonest.” That usage is fraught with meaning. It conveys that, in order to do one’s job as a lawyer, it is necessary to be dishonest. Is that the popular conception? That’s what pop culture would suggest. There is, after all, a television series in which a law professor teaches students about how to skirt and violate the law and get away with it (that’s my impression; I haven’t bothered to watch any episodes). I guess I could go on and on, but you could also, so I’ll leave it at that.

I think the vast majority of lawyers strive mightily to be not only honest, but also honorable. You can not be one without the other.

Honesty and honor are two closely related concepts. In fact, their root words are the same:

“Honesty” derives from the Old French (h)oneste, which in turn derives from the Latin honestas. The Latin noun was formed from the adjective honestus, likely deriving from honos, “honor,” which is of uncertain etymology. The Roman linguist Varro suggested onus, “burden,” as the root of honos, as if honor weighs us down morally. In his encyclopedic work Etymologiae, likely composed in the seventh century of the Common Era, Isidore of Seville defined honestas as honor perpetuus, literally “perpetual honor,” and then more straightforwardly as honoris status, “the condition or state of honor.” Around 1930, the classical philologist T. G. Tucker suggested that the root of honos was *ghen-, to “make big, full,” but a definitive derivation remains elusive. The first definition of honestas given by the Oxford Latin Dictionary is “Title to respect, honourableness, honour,” followed by “Moral rectitude, integrity,” in which sense it was frequently opposed to utilitas, “expediency.” Cicero refers to a dissensio, or conflict, between the two, and Horace praises Lollius for preferring the honestum to the utile. Less frequently honestas was used in the sense of “Decency, seemliness,” one of the early secondary senses of “honesty” in English. [From In Character]

So, to get down to the root of it, the honest person is worthy of being honored, is perpetually bearing the burden and responsibility of being honest, morally right, with integrity, decency, and seemliness. The dishonest person is dishonorable, unencumbered by rectitude, lacking integrity, expedient, indecent, unseemly.

Of course, the concept of dishonesty has many shades. On one extreme is outright deceit. On the other is lack of candor and dissimulation. Every action between those two brackets is dishonest.

With honesty comes credibility. I can tell you as a fact-finder in court that evasiveness and dissembling take almost as heavy a toll on one’s credibility as out-and-out lying. A mere tinge of dishonesty can tarnish one’s honor. Even an appearance of impropriety can be fatal.

Thanks to Winky Glover

Spring Broke

March 11, 2015 § 4 Comments

Years ago I had a school-teacher client. She came into my office for an appointment one day and greeted me with, “And how is your summer going?” I answered, “About the same as my fall, winter, and spring.”

Point being that school schedules operate in a kind of time warp that has no direct relation to the Gregorian calendar observed by the rest of us, but impacts us nonetheless.

Court calendars take on a decidedly vacant look when the time for Spring Break arrives. Lawyers report that their clients are off on far-flung journeys with vacationing school children in tow, and so are unavailable for those court hearings that were seemingly so urgently needed to be scheduled only a few months ago when no one paid close attention to what else might be going on in that second week of March.

And the lawyers themselves are taking the calendar loophole to make treks to exotic places. Even lawyers with no school-age children. Hey, why not, it’s Spring Break, after all! I know of lawyers here in our district — encumbered or unencumbered with children — who are off to the beach, or on cruises. Put the snow and ice behind and get away for a few days to a sunnier clime.

Meantime, the courts plod along this week in their pedestrian way — Spring Break or no. It’s a gray, showery, thunder-stormy week here in most of Mississippi, so you Breakers have the right idea, I guess.

When I practiced law, I often pointed out that I had the liberty to take off as much time as I wished, but with the realization that I didn’t get paid if I did not work. Or, as another lawyer put it when he was asked by his wife, “Why don’t you take off a week and take me on a trip?” He responded, “And which week will you go without eating?”

Anyway, best wishes to all you Breakers — with child and childless alike. We know you’re having a wonderful time. Wish we were there.

A Blog Voice Goes Silent

February 24, 2015 § 2 Comments

The blogosphere seems to be too young for its stars to begin winking out, but that is exactly what happened with the passing of Tom Freeland of Oxford, who died last Saturday at a young 59 years.

Tom first came to my attention as a reporting attorney on Jan Goodrich’s FOLO blog (now defunct). That blog bird-dogged various legal issues, and especially all of the litigation in which Dickie Scruggs was embroiled leading up to his spectacular criminal flame-out in 2007. Tom filled in important details for those following the cases, especially the criminal cases. Tom’s reporting was even referenced by the NYT in its reportage of the Scruggs affairs.

Tom began his own blog, NMissCommentor, in which he continued to share details of the Scruggs cases. He served up a large helping of entertaining general interest, as well. He posted about the Mississippi blues performers and blues culture, Mississippi music and musicians, and Mississippi writers. He talked about local food and recipes. There was political commentary, legal analysis, literary discussion, and general humor. His posts always drew a lively exchange of comments.

Tom was not only a blogger. He was a well-respected litigator and counselor who mentored many a young lawyer.

In sum, Tom was a civilized man and accomplished attorney who cared deeply about his home state and spoke through his blog to try to influence others.

The last time I saw Tom was last October the Friday before the Ole Miss – Alabama game. I had gotten an email from his wife, Joyce, inviting us to a soiree at their office off the Square in Oxford. Tom had hired a blues band to perform on the lawn in front of his law office, and the event was to honor former Gov. William Winter, who spoke to the assembled throng. There was a nice crowd. Many law students and recent law graduates were there. When Tom learned that we had in tow with us a couple who were Alabama fans, but were big Faulkner fans, too, Tom took time away from his other guests to take us on a tour of his office, which Faulkner frequented as a friend and client of Phil Stone, Tom’s dad’s law partner. Tom spun tales about Faulkner and Oxford, and had our bama friends in thrall. That was quintessential Tom, as I understand from his other friends who knew him far better than I did.

It’s hard to conceive that there will be no new, pithy posts on Tom’s blog to look forward to every week. I can’t imagine that there is another Mississippi blogger who could step into Tom’s shoes and offer a comparable range of insight into issues and things that matter to us in our state.

That’s a shame. There are niche legal blogs like this one, Philip Thomas’s, Jane Tucker’s, and Judge Griffis’s, and there is the acerbic and enigmatic Anderson. There are legal marketing blogs. But there is no one out there now with the breadth of Tom’s interests. He will be sorely missed. Sincere condolences to Joyce, their family, friends, colleagues, and staff.

For Laypeople Reading this Blog

September 11, 2014 § 4 Comments

I get comments and even emails from non-lawyers asking legal advice and even questioning the actions of lawyers and judges in cases. Lately there have been plenty. There are several reasons why I don’t respond.

First, and most importantly, MCA 9-1-25 specifically prohibits judges from practicing law. Giving legal advice is the practice of law. Ergo, I can’t do it.

Second, even if I could give legal advice, I would not do it via this vehicle. No lawyer who is competent would give legal advice based on a person’s recitation of facts without asking questions to fill in the gaps, to rule out alternative scenarios, and to test the accuracy of the scenario.

Third, the law is a nuanced thing, with many subtleties. Often there are multiple approaches to take, each with its own risks and advantages. Those variations should be teased out in a thoughtful conversation between attorney and client where the exchange of information and feedback results in a concensus on how to proceed. You can’t do that on a blog.

This blog is designed for lawyers and judges in the hope that it will improve the practice of law in Mississippi’s chancery courts. Lawyers and judges who read this blog know that the information is a mere starting point for research in a given case. It points a direction and suggests an approach.

There is no legitimate substitute for competent legal advice when one is confronted with a legal problem. And, quite often, what appears to be a simple matter can be fraught with unapparent implications that only a lawyer can spell out.

Laypersons are always welcome to read this blog, for what it is worth, but it is not a substitute for the services of a lawyer.

The Value of Your Professional Reputation

September 3, 2014 § 3 Comments

Not too long ago, I posted here about the value of your reputation with the court. It’s a subject that can not be overemphasized.

Yesterday, Philip Thomas added an eloquent post on topic: Mississippi Judges Stress the Importance of Professional Reputation.

It’s not only important reading for young (or “Baby” in Mr. Thomas’s parlance) lawyers, but also for more experienced, jaded lawyers who might have begun letting the concept slip from their grasp.

The Two Types of Lawyers

July 31, 2014 § 7 Comments

There are as many ways to categorize lawyers as there are lawyers, I suppose.

Just off the top of my head, here are a few that come to mind, presented as dichotomies: professional and unprofessional; learned and ignorant; court room and office; courtly and obnoxious; prepared and unprepared; rich and poor; pit bull and diplomat; tenacious and doormat; zealous and lazy; melodramatic and understated; scholar and street smart; and so on.

Lawyers and non-lawyers alike can come up with an almost unlimited number of similar categories.

To a judge, though, there are really only two types of lawyers: those the judge can trust, and those the judge can not trust.

If you think about it, much of our legal system rests on the trustworthiness of a lawyer in his or her dealings with the court. The judge relies on the lawyer to be candid and truthful in pleadings, evidence, legal citations, and statements.

The trustworthy lawyer never knowingly makes a false representation to the court, and promptly notifies the judge when he or she discovers that something presented proves to be untrue. He or she is timely and accurate in probate and fiduciary matters, and stays in contact with the fiduciary. The trustworthy lawyer’s pleadings are in order and are accurate. When the trustworthy lawyer cites a case, it is on point. The trustworthy lawyer distinguishes unfavorable law, and acknowledges the weaknesses of his or her case, suggesting how the court can and should address them to the client’s advantage. The trustworthy lawyer is never caught in a lie because she or he never lies. If the trustworthy lawyer has overlooked a court appointment, he or she apologizes and acknowledges the mistake, rather than fabricating a half-baked, incredible excuse. The trustworthy lawyer is in control of his or her case, and never lets a client dictate strategy and tactics. He or she will withdraw from representing a client before allowing that client put him or her in a position of dishonesty, trickery, craftiness, or misrepresentation. A trustworthy lawyer’s word is his or her bond.

A lawyer who can not be trusted is one who has proven that his or her word is worthless. The untrustworthy lawyer tells the court things that prove to be untrue, and bends the truth to the client’s advantage. His or her pleadings are full of allegations that can not be supported by any facts. The untrustworthy lawyer tries to hide the truth from the court, citing only law that is favorable, suppressing what is unfavorable. When caught in a lie, he or she persists in falsehood and makes up flimsy explanations. He or she files incorrect, incomplete and false accountings in probate matters, and regularly loses contact with the fiduciary. The untrustworthy lawyer can not be relied on to be on time or prepared; the judge worries that the client is being prejudiced by poor representation. The untrustworthy lawyer does what the client wants her or him to do, even if it is underhanded and unethical.

There are lawyers who present probate matters to me whose pleadings and orders I can skim and sign off on, confident that all is in order and proper. There are other lawyers who have proven that I must read every word and carefully consider what has been presented before I sign.

I think most reasonable people would assume that a trustworthy lawyer’s client has a head start in every case, because her lawyer is not having to overcome the judge’s skepticism about her case. Vice versa for the lawyer who can not be trusted.

The lawyer’s reputation with the court is built over time with hundreds of tiny building blocks of trust. One lie can destroy it, but so can a pattern of inaccuracies and questionable acts.

When a lawyer presents case after case as emergencies demanding urgent attention, and those cases prove to be anything but, that lawyer’s trustworthiness takes a hit.

When a lawyer’s accountings in probate matters are full of inaccuracies and miscalculations, and loses track of the fiduciary, that lawyer’s trustworthiness takes a hit.

When a lawyer files motion after motion asking the court to address minutiae and praying for sanctions to rain down on the opposition, that lawyer’s trustworthiness takes a hit.

When a lawyer wastes the court’s and everyone else’s time with frivolous matters that have no chance of success, that lawyer’s trustworthiness takes a hit.

Your reputation for trustworthiness with the court is like a treasure of precious gold. If you spend it wisely and build on it, it will stand good for you the length of your career. If you squander it over time on trifles, or blow it all in one monumentally bad act, it is gone, and you may never get it back. It’s your choice to make.

Where Am I?