Fourth Law School Lesson(s) Not Taught

For Hearings:

You are not alone. Find others, clients, assistants, other counsel, and lean on them for support during a hearing.

If you want to conduct a hearing well, prepare for it. What preparation? Whatever demands your thought and mind make of you to know the case and be prepared to speak to it, explain your case to the judge, and to counter your opponent’s arguments.

Aim at the goal (best outcome for your client) and not at doing well at the hearing’s processes.

Being funny is okay, sparingly, but not funnier than the judge.

Being smarter than counsel opposite is good. Being smarter than the judge is not good. Being cute is miscommunication – never okay.

Being an agent of chaos vis-a-vis the other side is good. To the judge, forbidden.

The nerves happen – get them over with. For some, this means making your first speech, statement, argument or request – getting into it. If the nerves dominate you the entire time – even after and in your dreams – seek counseling.

Attack the affidavit, not the affiant. Attack the witness, not the testimony. Understand this as an issue of context. The clues that justify attacking a person come from their reaction, not their affidavit.

At trial, it’s about influence, not the truth. However, where the truth is on your side, emphasize the point.

Tell a story.

Use simple examples.

Clever counsel like to mix things up and it may catch you off-balance. Be prepared for things to go out of sequence. Even better, be the one unbalancing.

Meditate. Seriously.

If you are ruminating on something, pay attention to it. There may be a lesson to learn or a problem to solve in all that hamster wheeling.

Best to accept human beings for what they are – not in search of the truth, but in search of the meaning of events so they can take the right steps to appear to be correct and maintain social harmony. Those who don’t are rare, usually seeking chaos because they are overwhelmed. You’ll know them when you see them.

Sympathize with the adjudicator. Murder the other side’s arguments, all while pretending to sympathize with them.

Make all your arguments – don’t balk unless essential. Remember, you committed to the court and the client to make them, so if you don’t, you’ve broken a promise. However, you’ve enough judgement to know when something should not be said. Trust it don’t fear it.

Intimidation on a small scale should not be feared. It teaches you a great deal about the person doing the intimidation, and costs you nothing.

Witnesses won’t impress you. You already know what they have to say. Most of it is window dressing anyway. But witnesses are impressive to others. So, keep yourself unimpressed, but remember others are.

Meet the difficulties of the case head-on, in confidence and faith. Avoiding the weaknesses of the case means if you lose, it was your avoidance that caused it. Confront them head on and be honest about them to yourself. Then you are prepared to explain to the judge why they are not determinative, so the judge can be correct in agreeing with you.

Not caring what the other side thinks of you serves you very well. It robs them of a powerful weapon.

Seriously, fucking meditate.


Third Law School Lesson Not Taught

Lawyers are in an inherent conflict of interest with their clients. Your character will be measured by how you deal with it.

Lawyers paid by the hour make more money working more hours. Lawyers make more money drawing matters out longer than necessary. Lawyers make less money resolving matters quickly. Therefore, lawyers have incentive to make extra work on their files to increase their earnings. It is almost always in their client’s interest to resolve the matter quickly, however. Therefore, lawyers paid by the hour have a conflict of interest with their clients.

A small segment of lawyers exploit this conflict to line their pockets, with rare members going so far as to go until the pool of money available to pay them is exhausted, then dumping the client. However, most act in favour of their client’s interests. Do not hire, article, or work for the former.

Lawyers paid salary get more value out of the money by working less time, leaving more time for…other stuff. Their clients get more value the more hours worked. This too is a conflict of interest.

Lawyers on contingency are also in a conflict with their client’s interests, as they may take steps to increase the amount awarded so they increase the size of their share in it. They may adopt a strategy by which 1 out of 5 times this works and gets them a huge reward. The other four times, it fails, and results in a reduced amount awarded, or none at all. But the one time is sufficient to make a profit, and so, they stick to their guns. If you select such a lawyer, hope you are the 1, and not one of the four.

Pro bono lawyers are in a conflict of interest with their clients. The less work they put in on a file, the more time they have to do work to bill for, to take on more contingency files, or to do…other stuff. I find those who are disposed to abuse this conflict of interest tend not to do pro bono work. You see few such lawyers doing things for free.

How you will be judged as a lawyer will be based on how you deal with this conflict. It will show your character, not in the grand gestures you make, but in the small decisions you make every day on how your files are conducted. Others will assess you based on it. Be aware of it: judge your own conduct, and adjust it accordingly.

Lawyers are in an inherent conflict of interest with their clients. Your character will be measured by how you deal with it.

Second Law School Lesson Not Taught

Lawyers deal with conflict. Where there is no conflict, you are not needed. If you cannot handle conflict, you are not useful.

All legal disputes are conflict. It may be between private parties, governments, spouses, children versus their dead parent, or individual versus the state and its delegates. It’s all conflict. There are few legal situations which do not engage the rights or obligations of at least two parties, and so a conflict prima facie exists.

Most people resolve most conflicts on their own. Some do not like conflict, so avoid or ignore it, until they no longer can. Some follow social customs meant to end and control conflict. Some acquiesce, or some simply let their complaint or grievance go. Some people meet conflict head-on to resolve it. The best do so in a manner benefiting both sides, or at least causing minimal harm. Most conflict is resolved directly by the parties involved fairly quickly.

Some people do not resolve conflict, but increase it. Some feed off of the drama of conflict. Some learned that the only way to have relationships is to have and escalate conflict. There are some persons who are traumatized, anxious, or in some other mental state or condition which makes conflict painful. Being dysfunctional in the face of conflict, they often cannot deal with it and make it worse.

In serious conflict, it is often the case that the actual conflict is not the one people are fighting over. Children of a deceased parent battle over the parent’s will and estate as a proxy for their unresolved issues. Worse, some deliberately create new conflicts as a way of avoiding dealing with the actual issue, either to avoid painful consequences, or to fill their pockets.

As a lawyer, you’ll get to deal with all of the above. Your job: resolve the conflict. Not exacerbate it, not dramatize it, not create more of it because you won’t face it or to increase billings. Your job is to resolve it.

Some clients will make it easy. Some, who do not or will not handle conflict well, will make it very difficult. Your greatest headaches will be clients, and lawyers, avoiding conflict and its consequences. They will seek to make you the instrument by which they affect their own dysfunctional manner of handling conflict. They will escalate, argue over non-issues, fight over irrelevancies, dramatize the matter, give you conflicting and unethical instructions, and be inconsistent and hypocritical. All of this is frustrating.

It is, however, just conflict, between you and them. You must learn to handle this conflict, deal with these people and move on to resolve the matter. Be firm and courteous without and calm and controlled within. Practice this by exposing yourself to conflict (not creating it), by reviewing your conduct, and determine how to handle it better next time. This art is ten times more valuable than the skills needed to resolve the actual legal issues. If you deal with such conflict well, resolving the legal conflict is easy. If you do not, you get sucked into their drama, and burn out quickly.

Some clients do not want a resolution. They are angry and obsessed, and seek to attack their enemy in any way possible, in order to cause harm and chaos, long after any potential for a redress for their injuries (often, only perceived) is gone. Fire these clients.

Lawyers deal with conflict. Where there is no conflict, you are not needed. If you cannot handle conflict, you are not useful.

First Law School Lesson Not Taught

“Only that man that has offered himself up entire to the blood of war, who has been to the floor of the pit, and seen the horror in the round and learned at last that it speaks to his inmost heart, only that man can dance.”

Cormac McCarthy, Blood Meridian or an Evening Redness in the West.

large outdoor lying bronze lion sculpture

If you cannot or will not advocate for yourself, you cannot advocate for your client. If you cannot advocate for your client, you are not a lawyer. You may be an academic or a clerk, but you are no lawyer.

Perhaps you are timid. You have troubles asserting yourself. Maybe you do not put your will out into the world. You are afraid to ask for what you want, perhaps, to even be afraid to name what you want.

For example, perhaps you did not have the will to tell your parents you did not want to go to law school. You went anyway.

Perhaps you had domineering parents. Maybe some trauma or anxiety makes it difficult to remain present and calm when confronted with resistance. Perhaps, you are simply lazy, and turning your agency over to stronger figures has (you think) been the the best choice. Or, you lack the cognitive capability or the courage to deal with conflict in an objective manner, and surrender your self-control and become embroiled in the drama and emotion of others.

If these apply, and you are not prepared to change, to become your own advocate, you will not be a lawyer worth the title, meaning, no lawyer at all.

As a lawyer, you will be required to advocate for your client’s position, interests, needs, life, liberty and fortune. You will face many people determined to do the same for their clients, who are willing to do anything to win. They will threaten and cajole, or act by attrition, to weaken you so you act against your client’s interest and your own.

There is no safety in clients, either. You will act for people who will try to bully you into doing things unethical, illegal, and perhaps, abhorrent.

You will understand what it means to feel the rapine of your soul.

If you cannot advocate for yourself, to say what it is you expect from the world, and to communicate through your conduct that you expect the world to respect you, then there is no way you will do that to any satisfactory measure for your clients.

This lesson is lost on those who need it most.

If you cannot or will not advocate for yourself, you cannot advocate for your client. If you cannot advocate for your client, you are not a lawyer.