I admit it. I listen to the Trigger Warning podcasts made by “hick” Kansas lawyer Eric Mayer and “slick” New York lawyer Daniel Gershburg. Not just because I like them, but because they’re usually pretty funny. Sometimes, they intend to be.
But their latest podcast, coming off a lengthy, soul-searching hiatus about why I’m the only person other than their mothers who listens, presented a dichotomy in the profession that should scare the crap out of everyone, particularly those people who entrust us with their lives and fortunes. Their subject? Mindfulness.
The two law-talking guys approached the subject from entirely different perspectives, so much so that my sense is that they were talking about completely different things. And indeed, they were.
Daniel used his time to extol the virtue of mindfulness as an positive thing to do. It was a generic view of the idea that engaging in activities like meditation and yoga is a sound and valuable way for lawyers to relieve the stress that builds up from their responsibilities. Was this an issue?
In contrast, Eric discussed the issues that arise from the current crop of hucksters selling mindfulness to lawyers who put their personal happiness ahead of their responsibilities, who claim under the guise of mindfulness that stress is an excuse to fail to do your job, to fail to fulfill your responsibility to your client.
Both guys were using the same word, but they were talking about something completely different. And this reflects a problem arising within the profession that manifested itself in an article in the ABA Journal, How lawyers can avoid burnout and debilitating anxiety.
If the article was about ways that lawyers could take care of themselves to better handle the stress and responsibility of the job, that would be fine. No, it’s not exactly an epiphany, and falls into the rut of the banal. This is hardly a new concept, and in the scheme of things one would hope lawyers would grasp, too obvious to be worthy of an article.
But that fails to reflect the prevailing dichotomy today. There is a split within the profession of lawyers who find the stress too much to bear, their misery too deep, their feelings too overwhelming and exhausting. This isn’t the usual stuff, managing a stressful position by taking care of yourself and finding effective ways to release the tension, recharge and go back into battle again tomorrow.
Over the past decade, law schools have churned out millions of lawyers because they had seats to fill, bills to pay. To do so, they filled those seats with people who were ill-suited, both intellectually and emotionally, to be a lawyer. This is a very hard, very stressful job. At least when done right. It’s not for everybody.
While there were always lawyers who really should have been something else, anything but a lawyer, the magnitude of the problem has grown, and they have circled the wagons to protect themselves from criticism. Did you suck in court today? Poor baby, it’s not your fault. You tried your best. You worked really hard.
And wave “bye” to your client who just lost his house, kids or freedom because you sucked. But hey, to this group of lawyers, clients are just ATMs, existing to fund their quest for personal happiness and contentment.
Am I overstating the problem? This comes from a post at Above The Law, ironically admonishing that this is how “successful” lawyers do it:
Practice cognitive restructuring. Recognize that your thoughts are not facts. Let’s imagine you’re at a hearing and the judge says, “Well, what about the decision in Smith vs. Jones? Why shouldn’t that apply in this case?” Assuming you have no idea what the judge is talking about, your mind might think, “I didn’t prepare enough. I’m a bad lawyer.” You can use cognitive restructuring and challenge your thoughts by saying, “I spent all the time I possibly could to prepare for this hearing. I did the best I can. And I am a good lawyer.”
Oh no, you had a bad day? Bet your client had an even worse day. See anything in there about the client? That’s the difference, using your sadness as an excuse for failing your client, and getting a tummy rub that it’s okay. It’s not okay.
The ABA Journal carries the cachet of a bar association, and with it, the imprimatur that it reflects practices for good lawyers. Yet, the article was an apology, an excuse, for the stress and anxiety that too many lawyers feel, as if that makes failing one’s client completely understandable, totally acceptable. After all, it’s hard to be a lawyer, and your happiness matters.
So Daniel likes meditation? Cool. If that’s what does it for him, go for it. Inexplicably, advocates of the mindfulness excuse keep fighting a strawman, using the peculiar and infantile expression of “woo woo” to suggest that meditation is some novel concept that no one has ever heard of before, even though it’s been done for millennia, and even amongst lawyers, Jon Katz has been promoting it for as long as I can remember. Except Jon does so in conjunction with his warrior approach to law, never forgetting that the client comes first.
There’s mindfulness and mindfulness. One is what Daniel was talking about, and isn’t the least bit controversial. The other is what Eric was talking about, and reflects a growing group of lawyers who take comfort in finding others who think the practice of law is about their personal happiness and shelter in finding an excuse for their failure to do the hard and stressful job of representing clients. Don’t confuse the two.
The most unfortunate part of this post is that the ideas here shouldn’t strain anyone who is intellectually and emotionally suited to be a lawyer. And yet, it will make the “failed, incompetent and overly sensitive” lawyers cry and defend themselves. These shouldn’t be hard concepts to grasp, and yet they won’t get it at all. But they won’t care, because it’s all about them and their happiness. We’re doomed.