LAWYERS AND VICARIOUS TRAUMATIZATION

January 24, 2012 § 1 Comment

Lawyers who represent people see almost every conceivable form of mankind’s capacity to be inhuman. We see violence and its physical and emotional scars, financial coercion, verbal cruelty, sexual abuse, use of children and other family members as weapons, defamation, and on and on in a breathtaking, seemingly inexhaustable panorama of brutality that seems almost limitless in the scope of its imaginative cunning.

Over time the exposure takes its toll. Some lawyers develop a defensive cynicism that effectively shields them from their clients’ pain, but also prevents them from empathizing. Other lawyers experience burnout that makes them ineffective. Still others experience sleeplessness, irritability, sadness, loss of concentration, difficulty in intimacy, depression, and a panoply of other symptoms. Your clients’ problems too often intrude into your own life and can come perilously close to becoming your own problems.

All attorneys who represent people experience stress. Even extreme stress. Some deal with it in a healthy way. Too many others self-medicate with alcohol, drugs or toxic behavior.

There is research that dubs this phenomenon “Vicarious Traumatization.” It is the process by which a lawyer who comes into contact with the client’s traumatization can become traumatized himself or herself.

Here is a link to a paper published by the American Bar Association entitled Secondary Trauma and Burnout in Attorneys: Effects of Work with Clients Who are Victims of Domestic Violence and Abuse, by Andrew P. Levin, MD.

A lawyer is quoted in the article:

“It actually feels good to hear that I am not the only one who feels depressed and helpless and that these issues are worth studying. Fortunately, the stress has decreased with experience and time for me, but I still have vivid memories of quite traumatic experiences representing victims of domestic violence who were so betrayed that it was difficult to continue to have faith in humankind.”

Read the paper and see whether you recognize yourself there.

WHAT SETS YOU APART?

November 29, 2011 § 3 Comments

Many years ago, when I had been practicing law only a few years, my father-in-law posed this question to me: “What sets you apart from the other lawyers in your town?”

His question was actually “What is it about you that makes people want to hire you instead of any of the other lawyers in your town?”

Now I will confess that I had not really given that sort of thing much thought at the time. With all the demands of a law practice, a family and the myriad other things that make up the life of a young lawyer, I hadn’t taken time to sit down and ponder that sort of thing.

But I have in the many years since. And I learned to become aware of the things that I could do as a lawyer that would add value for my clients. I learned that not all lawyers take time to listen to their clients, to really hear what their concerns are — so I tried to listen better. I learned that most lawyers do not take the time to explain to their clients what is happening and will happen in their cases — so I tried to explain. I learned that many lawyers are impatient with their clients and try to cut them short — so I tried to be patient and give them some attention. I learned that there are lawyers who file sloppy pleadings and discovery — so I tried to make sure that everything I filed looked professional and like it was done with care. I learned that some lawyers do not prepare their clients and key witnesses for trial — so I did, and did a better job than many in litigation.

Sometimes I fell short. But I like to think that most times I succeeded. Simply because I took care to give some thought and attention to what I could do to do a little better job.

My father-in-law also told me that only 10% of people in any profession are superlative, and it takes only a little extra effort and attention to rise above the other 90%. It takes continued attention and effort to stay in that special 10%.

Clients like to think they are getting the best when they spend their hard-earned money to hire a lawyer.

What sets you apart? What is it about the way you practice law that makes people want to hire you instead of the other 90% of lawyers?

THE MORNING AFTER

November 9, 2011 § Leave a comment

As is always the case the morning after an election, I awake to discover that I won some and lost some. I”m sure your experience is pretty much the same.

Overall, though, I’m pleased that we once again came together in this ancient civic ritual of our republic and peaceably renewed our government through the ballot, resolving our differences via democracy.

Cynics will argue that I am wrong, that special interests, plutocrats and autocrats actually govern, and that electoral democracy is a chimera designed to placate the masses. As with all overstatements, there is a kernel of unfortunate truth in that, but even the most hardshell cynic can not deny that we did get to vote, and our votes counted.

Some years ago when I campaigned for the judgeship I now hold, I was astonished at the number of people who told me that they would be happy to vote for me if they were registered to vote, but they weren’t registered because they did not want to bother with jury duty.

Think about it. They are shirking the two core privileges/responsibilities of a citizen in a democracy: the right to vote, and the right to a jury of one’s peers. This is mind-boggling to me. Some of these are the very same people who wave the flag, act like patriots, and criticize politics and politicians with whom they disagree. These are some of the same people who welcome back our troops from conflicts afar and forward partisan emails about supporting our troops.

I don’t know about you, but I don’t think of those people as fellow citizens. They are, I hope, fellow taxpayers, and they are fellow occupants of space on this continent, but citizens? No. They are not supporters of our military. They are parasites sponging off of the blood and sacrifice of all who truly valued our freedom and sacrificed their lives, their fortunes and their sacred honor to preserve it.

Lawyers have traditionally had a special role to play as guardians of our democratic ways. They have been looked to as leaders, policy makers, defenders of those whose rights are threatened, and active in the political arena. That role has been blunted, in my opinion, over the past 25 or so years by one party that has vilified lawyers and cynically attacked their legitimate role in society, as well as by lawyers themselves, who have increasingly become shopkeepers interested more in a safe profile and the bottom line. That’s a pity — if my opinion is accurate. If you disagree, feel free to comment.

So to those of you who exercised the grandest privilege of your liberty yesterday and voted, I tip my hat to you and embrace you as my fellow citizen. We may not have voted the same way, but we made our voices — however small — heard.

And to those of you lawyers who are hunkered down with your bottom line, I urge you to do yourselves and your embattled profession a favor by sticking your head up out of the trenches, look about you at the surrounding landscape, roll up your sleeves, and lead. Critics be damned.

LOSING: NOT THE NEXT BEST THING TO WINNING

December 28, 2010 § 1 Comment

This from Philip Thomas’s excellent blog Mississippi Litigation Review & Commentary.  If these thoughts do not resonate with with your experience as a litigator, you might consider some tamer undertaking …

Losing Sucks

Posted on March 3, 2010 by Philip Thomas

You heard me. Losing a trial sucks. On multiple levels. Sorry if you don’t like my vocabulary.

Even worse, a win does not even out a loss. Tennis great Andre Agassi described it as well as anyone that I’ve heard even though he was talking about tennis and not trials:

Now that I’ve won a slam, I know something that very few people on earth are permitted to know. A win doesn’t feel as good as a loss feels bad, and the good feeling doesn’t last as long as the bad. Not even close.

Shortly after I started my first job as a lawyer I heard veteran trial lawyer Natie Caraway say basically the same thing. It took personal experience winning and losing trials to understand it. 

For me a loss on appeal does not feel bad as a loss at a trial. And the loss of a bench trial does not feel as bad as the loss of a jury trial. The loss of a jury trial feels the worst because you hang it all on the line for twelve people who you don’t know and you are shattered when you find out that you could not convince them. And if you believe in your clients case–and most lawyers do–you think that the jury got it wrong. That makes it worse.

I have no answer for the best way to deal with a loss. But I agree with Chicago lawyer John Tucker on this point:

Courtroom lawyers and people who play sports are engaged in an endeavor where there is a  winner and loser of every contest, and no matter how good they are, sometimes they lose.In fact, in both endeavors it is often true  that the better they are the harder their contests and the more  often they will lose. You don’t have to like it-in fact, you had better not-but you won’t last long if you don’t learn to get over it, or at least put it far enough behind you to go on to the next case.

Some lawyers lose a big trial and never recover. They are habitually afraid to re-enter the courtroom for fear of losing again. The best lawyers get over it and seek the adrenalin rush of going back in and putting it all on the line again.

THE WHOLE TRUTH AND NOTHING BUT

December 2, 2010 § Leave a comment

A Meridian lawyer passed this on from his LAWYERS desk calendar …

During a 1989 case in municipal court in Middletown, Ohio, a lawyer asked the judge to be excused from representing his client.

The judge scanned the courtroom, looking for a suitable replacement.  But before he could find one, the defendant stood up and said, “That’s all right, Judge.  I won’t be needing another lawyer.  I’ve decided to tell the truth.”

A MILESTONE WORTH NOTING

September 24, 2010 § Leave a comment

Meridian attorney Champ Gipson celebrated his 89th birthday yesterday.  He graduated from Cumberland Law School and has been a member of the bar for more than 65 years. 

Champ is still active, and even makes a court appearance now and then.  He was in my court this spring filling in for his former law partner of many years, Jim Williamson.  I see Champ most Wednesday mornings for breakfast at Jean’s, where he always has only one cup of coffee.

If you see Champ, wish him a happy birthday and commend him for his long legal career.

ATTACK OF THE KILLER EARWIGS

September 1, 2010 § 1 Comment

Bedbugs

The latest fad in the anxiety/nightmare industry is bedbugs.  Seems like every media outlet has close-up photos of the little beasts the size of shetland ponies roaming mattresses across the country in cornucopious profusion awaiting fleshy morsels to chomp off of unwary humans. 

In Chancery Court our “bedbug” is the dreaded earwig.

Uniform Chancery Court Rule 3.10, entitled EARWIGGING THE CHANCELLOR PROHIBITED, provides in part: 

“No person shall undertake  to discuss with or in the presence or hearing of the Chancellor the law or the facts or alleged facts of any litigated action then pending in the Court or likely to be instituted therein, except in the orderly progress of the trial, and arguments or briefs connected therewith.  No attempt in any manner, except as above stated, to influence the Chancellor’s decision shall be made.  No person shall send any written communication to the Chancellor concerning a pending action in  the Court without delivering or mailing a copy of that communication to the opposing party …”   

The language about written communication and copy to the opposing side has given rise to a curious practice among some attorneys that can be illustrated in the following scenario:

Lawyer A sends a letter to the Chancery Judge describing the scurrilous actions of the opposing party, including pillage,  wantonness and rapine.  There in the lower left-hand corner of the letter is the notation “cc:  counsel opposite.” 

When the judge questions the propriety of the letter, Lawyer A responds innocently that he complied with the rule because he sent a copy to opposing counsel.  

With all due respect, if any is due, that practice is undoubtedly in violation of the rule and is, without question, earwigging.

Potential earwigs

The provision for copy of written communication to opposing counsel includes no exception to the preceding two sentences prohibiting communications about the merits of the case.  It simply means that, if communication by letter is proper, as where it is necessary to transmit a copy of an agreed order, then a copy of the proper communication must be sent to opposing counsel. 

By the time that opposing counsel has received a copy of the ex parte correspondence, the damage has already been done.  The bell cannot be unrung, as the adage says.  The judge has heard one side alone on the matter, and the judge’s impartiality and independence is in question from then on out.  If the judge rules for the side that sent the letter, was the judge unduly influenced?  If the judge rules against the side that sent the letter, was the judge trying to lean the other way to prove impartiality?  We can never know what might have been because the ex parte communication has called the judge’s impartiality into question.

In my court, if you have allegations to make on the merits, put them in the form of a pleading and set the matter for hearing, and I will make a judgment after hearing both sides.  Don’t poison the well that both parties have to drink from.

If you introduce the dreaded earwig into Chancery Court, prepare to be fumigated.

Genuine earwig

Genuine Ear Wig

PROPOSED RULE CHANGES THAT MAY AFFECT YOU

August 17, 2010 § 10 Comments

The Mississippi Supreme Court is considering two rule changes, one of which will definitely affect you, and the other might indirectly.

The first is a change to Rule 6.1 of the Rules of Professional Conduct that would make pro bono service mandatory and would increase the fee to be paid in lieu of doing pro bono work from $200 to $500.

The second is a change to the appellate rules to increase the pro hac vice admissions fees from $200 to $500. 

Your comments are invited by the Supreme Court, and may be submitted via this link.   

If you don’t care what I think about these measures, stop reading here.

My opinion is that it is a good thing to make some level of pro bono service a professional requirement.  And no, I am not talking about the deadbeat clients who will not pay their fees and are losses on your books.  I am talking about the deliberate decision to volunteer through the Mississippi Pro Bono Project or to give your services free to a needy litigant or non-profit who needs legal help and legitimately can not pay.  The numbers of pro se litigants are growing every day; if you don’t believe me, ask any Chancery Clerk or judge.  Every time I ask a pro se litigant why they did not get an attorney, the answer is the same:  “I can’t afford a lawyer.”  Mandatory pro bono attacks the problem at its source by providing access to a lawyer, which in turn means access to court, to people who otherwise would not have it.  And I am not talking about taking on an anti-trust suit or the like.  You can do a couple of simple no-fault divorces and do a lot of good, both for the client and for the court.  (Side note … I have a blog post coming about the dimensions of the pro se problem and one approach to solving it).

As for the $500, I think the practical effect will be that a lot of solo and small-firm practitioners and small-town lawyers will end up doing pro bono work, and a lot of high-powered and big-city lawyers will buy their way out of their duty.  On one level, I find it repulsive that it would work that way because it’s not fair to lawyers of modest means, and it’s repugnant to think that one can meet a professional and what I consider a moral obligation with filthy lucre.  On another, more practical level, you have to admit that even if there were no “buyout” provison, and every lawyer were required to do pro bono, there would be lawyers of means who would shuffle their duty off on a subordinate.  In that case, we might as well reap their money and do something worthwhile with it.  And before you ask me, I do not know what the Supreme Court is doing with that money.

As for the fee for pro hac vice lawyers, I would not mind seeing it doubled, tripled or increased by ten or more.  If there is litigation in Mississippi, out-of-state attorneys should have an incentive to turn it over to Mississippi lawyers.  Too often the out-of-state lawyer pays the Mississippi attorney a pittance to be a figurehead, reaps the gold and scoots.  I would like to see that pattern reversed.

REFLECTIONS ON THE CULTIVATED LAWYER

July 22, 2010 § Leave a comment

Tuesday I posted Felix Frankfurter’s advice to a young man who expressed an interest in preparing for a legal career.  What I find particularly interesting about it is the esteemed Justice’s view of what it takes to be a good lawyer. 

Here is what he said, paraphrased:

No one can be a truly competent lawyer without being a cultivated person. 

A good lawyer is a well-read person because that is the only way to acquire the capacity to use the English language on paper and in speech and with the habits of clear thinking, skills that only a truly liberal education can give. 

No less important for a lawyer is the cultivation of the imaginative faculties by reading poetry, seeing great art and listening to great music. 

The truly competent lawyer stocks his or her mind with the deposit of much good reading, and widens and deepens his or her feelings by experiencing vicariously as much as possible the wonderful mysteries of the universe. 

Early in my college career in Louisiana I announced my intention to go on to law school, and my father made an appointment for me to meet with a justice of that state’s Supreme Court for advice about the best course of study to prepare myself.  The judge’s counsel was to get the broadest liberal arts education I could get, and to take courses that required writing and expressing my thoughts.  He pointed out 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.

The law is a great profession, but it requires not only a knowledge of and skill in its practice; it requires that lawyers use it ethically to influence and hopefully improve the lives of clients, whom they must represent “zealously within the bounds of the law,” and the larger society.  The lawyer who is well read and cultivated — to use Justice Frankfurter’s term — is the lawyer who is best equipped to meet the demands of the profession.

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