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.
Just pointing out a typo in an otherwise thoroughly depressing post… “cachet” not “cache”.
Thanks. Fixed. And if you think this is depressing, the ship is sinking fast, with a lot of people on board who you would think would know better.
Yeah, I know.
Jeena Cho posted a rant on Facebook about you yesterday. She seems to have some sort of obsession with you.
I received a few emails telling me about it, but my concerns have nothing to do with Jeena. She’s just a tiny blip on the radar. If something I’ve written hurt her feelings, then I’m glad she could find hugs amongst her friends on Facebook (I don’t do Facebook).
As for why she seems to need my approval, I have no clue, but she would do well get past it as I don’t think she has the capacity to grasp the nature of the problem I’m trying to address. While these aren’t tough concepts, they nonetheless elude some people completely. As I said, there are a lot of folks who are neither intellectually nor emotionally suited for the law.
Jesus, I just looked at her Twitter, and I think it gave me fucking cancer from all the stupid…
It’s not about her, so let her deal with her demons in her own way.
That’s fine, but I shouldn’t need to undergo trepanning after looking at more of her written work…
The practitioners of meditation on Mount Athos up to this day among the Desert Fathers in late antiquity, in Buddhist monasteries throughout Southeast and East Asia, lived and live disciplined, arguably hard lives. Yes, they meditated/prayed at length, but they also ground the wheat, cooked the rice, scrubbed the floors, emptied the chamber pots, and under the tension of communal living.
Incompetent or poorly suited people are found in every field; that fact does not explain what makes the dysfunctional side of this profession appear different from its analog in architecture, pharmacy, mortuary science or civil engineering. Maybe it’s not different (or very different, anyway) in itself, but our self-perception is skewed. We don’t see lectures on “meditation for pharmacists” and “stress management for designers of sewer lines.”
Maybe there should be lectures on meditation for pharmacists. If there was, so what?
But if the sales pitch for the lecture biz is that it’s okay to fill an antibiotic prescription with Prozac, because it’s just too stressful and the pharmacist shouldn’t feel bad about being a screw-up, then it’s a problem.
I saw your comment at Jeena Cho’s Facebook page. So you go there and kiss her baby ass, then come here and do the opposite? Good to know who’s full of shit on the internet. And who’s too stupid to realize that Jeena spun SHG’s words to get hugs and sympathy from her deeply sensitive friends.
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I strongly disagree. Your ATL example has nothing to do with the competence of that lawyer. We don’t know how the lawyer prepared, we don’t know the case, and we have no idea if that judge is right or wrong in citing Smith v. Jones. Judges aren’t infallible. They make mistakes, sometimes really doozies, too.
In fact, the ATL example demonstrates a lawyer doing right by their client. A lawyer who manages their emotional responses is a good lawyer. Imagine that lawyer instead says to themselves “stupid incompetent awful me!” and gets upset. What kind of terrible response are they going to give the judge? They’ll either be defensive and act arrogant and abrasive, or they’ll cower and seem beaten and submissive. Neither response helps the client. If the lawyer stays calm, cool, and collected, if the lawyer acts in a confident manner, the lawyer will be much more persuasive and a better advocate for their client.
In poker, there’s a concept of tilt – when you get emotionally off-balance, your reason and ability to calculate odds diminishes, and you start to lose. That’s what this is about.
You have completely misapprehended what’s wrong with the example. Your assumption is as dangerously misguided as the example itself.
If my analysis is so bad, surely you could give a reasoned rebuttal, rather than toss pejoratives. You cited the example as a lawyer who was incompetent and using mindfulness to deny that shameful truth. The problem with that argument, though, is that your example doesn’t show an incompetent lawyer. It shows a lawyer getting guff from a judge and trying to keep themselves together.
Surely I could, but am I obliged to satisfy your sense of entitlement? Do I owe you a “reasoned rebuttal” to something that should be patently obvious? Why no, I do not. There are a great many dumbasses on the internets, and provided they have a keyboard and internet access, they can leave a comment here and demand that I give them a “reasoned rebuttal” because they are special. I feel no such sense of obligation.
However, because I’m feeling particularly benevolent today, I will nonetheless. First, my example is someone else’s hypothetical. It presumes the judge to be right and the lawyer to be wrong. You may not like that hypo, and I agree that it’s insufferably simplistic, but your beef is with its author, not me. I didn’t create the hypo, and I take it as it exists. Not as I would want it. Not as you would want it.
But your dangerously misguided assumption is that you accept the author’s premise that there are only binary options, both drenched in narcissistic emotionalism and ignorance. Neither option reflects how a competent lawyer would respond, but rather the author’s view of how lawyers would respond, either crying over their failure or deluding themselves over their failure. You accepted this premise, that these were not only appropriate options, but the only options.
That’s why your assumption was dangerously misguided. You’re welcome.
And by the way, I posted your comments, so everyone can read your brilliant argument and decide for themselves whether you are right or not. While I’m not obligation to that either, I did. Instead of appreciating my posting your comment, you demand more of me. Don’t be greedy.
The hypo does not presume that the judge is correct. It simply presents what the judge says and how a lawyer might react. It’s completely agnostic on the legal merits.
A lawyer who freaks out and then calms down is being a good advocate, because people make bad decisions when they’re upset. Aside from calling this behavior narcissistic and emotional, you don’t explain either why it’s bad for the client or what a competent attorney would do.
There’s an irony here. You seem to feel that these lawyers are not adequately focused on their work, but at the same time you decry mindfulness, a tool used for focus.
You’re allowed to disagree.
What I don’t understand is whether this is an attempt to see how susceptible to influence others are or whether he/she is just that blind?
Is this like the cop shills trying to spam the internet with their bullshit, hoping that they can at least hold on to the idiots?
Not knowing who Cui Dono is, I can’t speak to motive. But the comments reflect a fairly typical argument style of foot stomping and insistence used by new and unsophisticated lawyers. My sense is that it’s not venal, like the cop shills, but simply shallow, immature and ineffective.
You weren’t persuasive to begin with, but when you try to argue that the hypo doesn’t say what it obviously says, you reduce yourself to a joke. Something to consider when you’re trying to be mindful: we’re not as stupid as those morons who rub your tummy. Is it mindful to have people laugh at you for being a moron? I wouldn’t think so.
It’s like arguing with someone over whether vanilla tastes better than chocolate. CD doesn’t see the example as reflecting a monumental problem. Oh well. For those to whom it’s obvious, he just disappeared. That’s that.
If it’s so obvious that the hypo lawyer is incompetent and evidence of a massive problem, then why is it so hard to actually articulate either the incompetence or the problem? You’ve got lots of insults and labels, but not a lot of analysis. “It’s obvious you’re wrong” isn’t a rebuttal.
More foot stomping? Cool. You got your “rebuttal,” but then announced that you disagreed with the premise of the quote, and demanded I rebut your imaginary view of what the quoted portion means. Sorry, but not my job to deal with your fantasy. By the way, there was a podcast about the significance of the quote today, and it seems that your position isn’t well shared. At least by lawyers.
And I reiterate, your comments are posted. If you think you’re entitled to keep making demands of me to do it your way, your wrong. If you think your comments are persuasive, and mine are not, then you will win the hearts and minds of all who read them. That’s as good as it gets.
Now I’m sure you won’t be satisfied until I rub your tummy. Consider it rubbed. You’re done.
Cui Dono, I don’t think you understand how obvious works. Imagine you are arguing a motion before a judge, say all the things you think are really persuasive and valuable, and your adversary shrugs and say, “I have nothing to add.”
Then the judge says to you, “denied.” You stand up and say, “but judge, he didn’t even say anything,” and the judge just looks at you and says, “move on.”
Move on.
Who needs reason when you have a cudgel and a fan club, eh?
Heh. That must be it.