WHY IS IT SO HARD TO BE A LAWYER?

 March 16, 2018

WHY IS IT SO HARD TO BE A LAWYER?

By Judge David Langham

Trial is a stressful event. The whole practice of law is stressful. No attorney ever knows for sure what evidence may be adduced by the opponent(s). Worse, there is never absolute certainty that your own client will not surprise you a few times, usually at the worst possible time. Attorneys strive for preparedness, rack their brains regarding potentialities and possibilities, and they stress. It is hard on the mind, the body, and the people around them. 

There is seemingly endless advice heaped on lawyers: “be brief,” “be thorough,” “never ask a question you don’t know the answer to,” “be prepared,” “know thy enemy,” “know the law, know the facts, but most important know the judge,” “start strong, finish stronger,” “follow your gut,” “watch for opportunities,” “never let the jury see you sweat,” “never, never give up,” and the list goes on and on. If only memorizing and employing these tips was a path to success. The problem (illustrated by the first two on the list) is that there may be no way to be both “thorough” and “brief.” It may be that one cannot be all things at all the right times. 

I will never forget a demeaning insult delivered to a room full of first year students by a particularly callous and insensitive professor in my youth. Having observed various contributions and performances, this lout scanned the room and advised generally “some of you should really consider a career in pre-need funeral arrangement sales.” Some of us students had not lived up to this buffoon’s expectations, formed over years and years of classroom lectures and purportedly academic analyses. In retrospect, I realized that he was a snob about trial practice, despite never having picked a jury, taken a deposition, examined a witness, or closed a case. He was merely a bully; a highly educated one, but a bully.

He lacked a valid perspective to belittle those students, whose performance failed to impress him. He was an observer without basis, holding forth as an expert on things he had heard from others, read about in books, but never experienced first-hand. And worse, he delivered his criticism in a demeaning, insulting, and belittling way. Sure, perhaps part of education is developing some degree of thick skin that may be required in your coming professional life. Or, perhaps that is just an excuse we engage to forgive the abuse of some unfeeling, unthinking clodhopper of an instructor or mentor?

I have tried a few cases. I am no Clarence Darrow, Johnnie Cochran, or Robert Shapiro, but I have tried a few cases. I have presided over thousands of cases, and hundreds of trials. I have been privileged to see some exception attorneys, successful attorneys, and well, let’s just say some “not so much.” That said, I would never recommend to any of them that they find another line of work. But the effects of stress are palpable. A recent Florida Bar News article reported a variety of damning statistics among them “70 percent of (lawyers), if we could, would change our careers.” 

The result of all the unknowns, the contradictory advice, the competing priorities striving for our time, and the woeful failure of law school to adequately prepare us is stress. It manifests in the outrageous proportion of attorneys with depression, anxiety, alcohol issues, and suicide rates. 

I recall a trial years ago in which the critical point was about some basic facts. So often in workers’ compensation, the debates are about opinions as eloquently reiterated by an industry pundit Jerry Fogel: “did he or didn’t he,” “can he or can’t he,” “will he or won’t he.” These questions permeate workers’ compensation, about the accident or injury occurring, the work restrictions that result, and the recovery that is expected. But, this trial was instead about facts. 

The trial proceeded with witness after witness testifying regarding whether “x” was true or “y” was true. One side of the case (“B”) did not present any documents to support “x” and the other side (“A”) had no documents to support or refute either; so each presented only verbal testimony. But, A kept beating on the fact that B had documents which would establish the answer with reasonable clarity and finality. With each witness, A asked “did you review the ______ records in reaching your conclusions.” Repeatedly, witness after witness, admitted B had those, but they were neither consulted nor brought to trial. 

After several witnesses focused on the factual testimony “y” being true, A rested (that means A was finished, satisfied that it had presented what it needed to present). B then presented witnesses to support “x” and contradict “y.” Then B rested and delivered a closing argument summarizing the evidence, followed by A doing the same. And then, as is tradition, B got (I thought at the time) the last word, the “closing argument rebuttal.”

Trial lawyers often advise that rebuttal should be brief (see advice above, “be brief”). One lawyer’s website recommends that “rebuttal should be short and snappy.” In this rebuttal, B in fact kept it “short and snappy,” saying merely, “Judge if ‘x’ were true, then A would have brought the ______ records that their witnesses admit exist. Or at least, A’s witnesses would have reviewed those records in preparing to testify.” Admittedly, this argument was persuasive. 

But, what I thought was “the last word” was not. A’s attorney almost immediately began speaking (no precatory “judge may I be heard”). A’s attorney essentially said “well, if it’s documentation of “x” that you want, I could go get that now and be back here with it this afternoon.” The statement was not that concise, but this is the gist. Of course B’s attorney immediately objected to that offer, and reiterated that closing arguments had concluded; noting (essentially) “this trial is over.”

That was a valid point. The trial was over. Both parties had rested their case. The issues had been defined, presented, and argued. After B explained the importance of what was missing, it was too late for A to seek to provide it. In fairness, A’s lawyer knew that, and was likely suffering the embarrassment of having been surprised. But A’s lawyer was following another bit of advice: “never, never give up.” A’s lawyer knew that the evidence would not be re-opened or the trial reconvened, but put the best face on it they could. That is tenacity, and so long as it is respectful (should have gone with “judge may I be heard” first), it is usually admired. 

What can be gleaned from that trial? Well, back to the theme above, practicing law is stressful. Lawyers (and adjusters, doctors, and more) work on lots of situations, deal with lots of people and documents, and face time constraints every day. The truth is that putting those business records in evidence to prove “x” would have been a great plan. Having A’s witnesses reference those documents and explain them would have been a good plan. Arguably, putting them in evidence and having the witnesses discuss them would have been the best plan. But, the fact is that we are all human and sometimes we do not make the “best plan.” Sometimes we do our best with the time and resources we have. Sometimes our best is good enough and we prevail; other times perhaps not. That does not mean that we “should really consider a career in pre-need funeral arrangement sales.” Not by a long shot. 

That means that we must accept our humanity, frailty, and fallibility. Our goal cannot realistically be perfection. Our goal has to be doing our best with the resources available. Witnesses and clients will surprise us, opposing attorneys will suggest arguments we never thought of, and sometimes luck will shine on the other side of the hearing room. If we cannot accept that, we will never find peace in this profession. If we constantly berate ourselves with “what if I” or “I should’ve” or “I could’ve” then our stomachs will perpetually churn, our stress will incessantly burn, and our hearts unrelenting yearn. And, we will all wish we could “change our careers.” 

Or, we can find the positive in what we do and in our best efforts. We can accept that life will include victories and defeats. When we are foist upon our own petard, outwitted, or surprised, we can learn from it, grow through it, and be better prepared next time. That is really our best course.