Somewhere in my readings, I came across the mention of a book called The Soul of the Law by Benjamin Sells. I don’t remember where I read about it, so I can’t give credit where credit is due to whomever steered me to the book.
First published in 1994, and with a new edition in 2014, I have found the book to be full of insights about the law and lawyers — thoughts I have had and expressed in ATL, but this book does it in ways so much better than I ever could. The author has been a lawyer, then a psychotherapist, and now has a career that has nothing to do with the law, psychotherapy, or anything related. When you think about it, lawyers are often psychotherapists, because sometimes the clients’ problems aren’t legal, but personal, and the law doesn’t really offer satisfactory solutions in the winner take all adversarial nature of what we do.
One topic that Sells discusses is how the profession has driven out our imagination at least in the professional context, and since so many of us have time for little else, in our personal lives as well. Before law school (do you even remember what that was like or how you used to think before thinking like a lawyer), do you remember doing something that has nothing to do with anything, just daydreaming, or creating something? Those days, if they ever existed, were certainly tossed once admitted to law school. We don’t know how to color outside the lines, and those coloring books that have been all the rage recently are a perfect example of that. Their very intricate and precise patterns in which you are expected to color precisely and within the lines defeat, in my mind, the very purpose of coloring — to color outside the lines, to dare, to try something different.
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Woe to those of us who dare to do that professionally. That’s why we have volumes and volumes of court rules, specifying with precision the word count, the font size, line spacing, and all those other things that purportedly matter, but really don’t. It’s uniformity, conformity, and that’s what the law is all about. But I don’t think that’s why any of us became lawyers, at least I think that’s the case, to be concerned with minutiae, which is so much of what the law is today.
Lawyering is also all about hierarchy, in practice, in law firms. A senior partner who gets the big bucks is expected to know more than the lowly associate, which is why that senior partner is better compensated. But that’s a fallacy. The lowly associate who, by definition, is closer to the ground, may well know the case better, be more current on the law, and have some out-of-the-box ideas for strategy than the senior partner who has been removed from the trenches of civil litigation warfare for some period of time.
I don’t think that anyone would disagree with Sells’s claim that the adversarial system, on which litigation is based, is not really meant to resolve conflict but rather to the perpetuating of it (and one has only to look at lawyers’ fees amassed in litigation to know the truth of that remark). Litigation lives by keeping conflict alive. If you drive a stake through the heart of the conflict, then you’re done, and so are the fees. The client’s needs and goals come first, or do they?
And as for incivility, Sells notes that lawyers complain about our incivility to each other. He thinks that incivility is not a result of working too many hours, but of our disconnection from the rest of the world, from family, from friends, and from all those people and things that have nothing to do with the practice. Sound familiar? One gets cranky responding to discovery on a weekend instead of coaching your kid’s soccer game. I think that Sells is right.
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Speaking of incivility, and I am, if you read my post last week about incivility, and how I recently worked with two dinosaur lawyers who were professional and civil to each other and to me, I am about to sit down to a large serving of crow. I don’t know how I want it prepared — fried, boiled, broiled, roasted, or baked, with sauce or on the side — but I do know that I need to eat some.
As the lawyers and I were working out a few of the kinks in the settlement agreement after the mediation and the agreement had already been signed, one of the lawyers had a complete and total meltdown — in fact, not one, but two — in the space of less than four hours. He cursed and swore (I think he was perhaps more angry at himself), but his conduct, his lack of civility and professionalism in his phone conversations with me (the other attorney was not privy to them or I think the deal might well have gone south) were nasty, vituperative, and vitriolic. Enough adjectives to get the feel of the conversations? In fact, they weren’t conversations, but ranting monologues in which it sounded like items were being tossed around in the office.
Do you think this lawyer needs some anger management training? Do you think that this attorney has had the grace to apologize for his abusive behavior? Of course not. Memo to self: you may want business, but you don’t want his business. Life is too short, as Sells points out, and that is true not just for me, but for you as well. Now, back to deciding how I want to eat my crow. Any suggestions?
Jill Switzer has been an active member of the State Bar of California for more than 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].