Law practice anxiety: How to dance with the demons
Given these trying times, let's focus on typical practice irritants that bothered us just a month ago. They may seem trivial now.
Who’s afraid of the big bad wolf? Or should I say the big bad lawyer? In my 40-plus years of litigation practice, I came across my share of individuals who generally made me uncomfortable. They gave me the jitters, rattling my courage—to the extent that I empathized highly with the lion in The Wizard of Oz.
Although I doubt most colleagues reading this have encountered fear and anxiety, let me share my thoughts about some of these demonic experiences.
Firstly, as Shakespeare might have put it, let’s discuss all the lawyers. Actually, the bard did say, “Do as adversaries do in law, strive mightily but eat and drink as friends.” I found this was not always feasible.
I recall dealing once with a colleague who left civility at the door. His speech was peppered with profanities about my client and my case that were so offensive, they would make even the late comedian George Carlin shudder. In my office, we referred to him as “Ivan the Terrible.” His conduct was disturbing, making me dread all communications with him.
On one occasion, when my process server served a motion record on him, he tore it up and tossed it. Luckily, my process server did not hit me with a trauma risk surcharge.
Then there was another confrere who acted bizarrely. At examination for discoveries—or “depositions” south of the Canadian border—he was known to “accidentally” spill his cup of coffee on his opponent’s documents. Another time, he allegedly grabbed a coat from his opponent’s student, not returning it immediately. The Law Society of Ontario actually took disciplinary steps, as this man was also imprudent enough to refer to his opponent as “Dumbo,” on the record.
I fortunately did not experience this gentleman’s wrath, but a couple of colleagues who did told me they were terrified of the guy, not knowing what might come next. Understandable. We have enough concerns without having to worry about a deluge of java. It would really be questionable whether you can eat and drink as a friend with this Genghis Khan. No clue where the drink might end up.
I found a common trigger of anxiety for me was the lawyer who would not settle. This was especially troublesome if I had a weak case. I recall a civil action where my client failed to close a house purchase, as he could not secure funding. The vendor, who eventually resold at a loss, sued him. His lawyer, I’ll call him Bulldog, took it all personally.
He was totally averse to settlement. We made him an offer and his response was, “Not acceptable. The litigation will proceed.” He never told us what was acceptable. I ran across him once in the courthouse cafeteria and he just repeated, “Not acceptable. The litigation will proceed.” Nowadays, Amazon likely has robots who can replace him and are programmed to perform this function.
Our case was frail and potential damages were high, as were my concerns for my impoverished client. The case often disturbed my sleep, as I felt like a passenger on the Titanic, approaching that iceberg.
I even found several indirect triggers of my dread. I boarded a bus one day, and the driver looked like a dead ringer for Bulldog. The incident gave me an adrenaline fight-or-fright rush. I almost felt like asking him, “OK, tell me. What is acceptable?”
Fortunately, we lucked out, as the vendor switched lawyers, resulting in a reasonable resolution. Who knows what Bulldog was telling his client? “Let the litigation proceed. Undo my leash!”
And what happens when you are up against an opponent lawyer who is a renowned expert, having authored the book on the subject?
After being out in practice only months, I was retained by a husband in a messy divorce matter. My opponent was not only the go-to family law guru, but he was also my group tutor in law school. As soon as my client brought in the documents served upon him, he asked, “Do you know anything about my wife’s lawyer?”
I can’t say I have a super poker face, but I certainly raised myself up to the task, knees shaking behind my desk. I took five deep breaths and responded confidently, “I believe he does some family law.”
Fortunately, my fears of getting steamrolled proved unfounded as the guru was a charm to deal with, and we soon settled. Good lesson learned: Often the greater they are, the more secure and professional they act.
Criminal cases engender a different kind of anxiety. Firstly: In most cases, your client is guilty, at least of something, and your hope is to negotiate a good guilty plea. And if you do end up in a trial, the prosecution generally has an army of witnesses, police investigators and experts to prove your client’s guilt beyond a reasonable doubt. The defense’s witness list will almost always be much shorter, and very often there is not much more to fight with after your client pleads convincingly, “Not guilty.”
I once defended a client who stole a Corvette, ran a police chase, abandoned the car after smashing into another vehicle and then assaulted some of the arresting officers, who also found some illicit drugs on him.
Strangely enough, I was not gripped with the anxieties often present in civil cases. The prosecution would not offer us much of a deal and being painted into the corner, I was ready for a good fight. The prosecution, of course, showed up with a bevy of witnesses, armed to the teeth with damaging testimony. I looked at my client, and the situation reminded me of the final scene in the film Butch Cassidy and the Sundance Kid, where Paul Newman and Robert Redford charge out of the cave, guns drawn, into the rifle barrels of the patiently waiting Bolivian army.
I guess when there is only one way to go, one action to take, there is less room for fear. I will add, we did do a bit better than Butch and the Kid, though not much.
But it is not only the opponents who can generate angst into us. Often, it’s the clients themselves. I had a personal injury trial coming up within a month. The client was not concerned; he would take his time, big time, responding to my communications. I would send him an email Monday morning saying I needed to get some info from him that day, and on Thursday he would respond saying, “What’s up?”
It was too close to trial to get off the record as his lawyer, and my investment was monumental. I spent too many sleep-interrupted hours ruminating about the case crashing, thinking about both fronts, of litigating the case and covering my derriere against the client. My blood pressure rose nicely, like a yeast croissant.
Most fortunately, the case settled on the eve of trial—although, I will say we were not fully ready for one, given the attitude and conduct of Mr. Blase.
Speaking of croissants, we hear repeatedly, “litigation is not a tea party.” The question then, is how can one best deal with these demons?
Some suggestions and comments on handling fears come to mind. One, is imagining your nemesis in his underwear. I’ve tried that, but all I achieved was visualizing Ivan the Terrible tearing up those documents in his underwear.
Then, there is the famous Franklin D. Roosevelt comment: “The only thing we have to fear is fear itself.” I have tried repeating that to myself in moments of distress. It didn’t do the trick. The problem was it reinforced my anxiety, as I ended up fearing fear itself.
Eleanor Roosevelt said, “Do one thing a day that scares you.” Most of us certainly have ample opportunity to experience this one.
I believe we each must find our own unique way to deal with this issue. I found seeing humor in the situation—say, giving the perpetrators colorful names—somewhat helpful.
I always liked Mark Twain’s wise comment about courage: “Courage is resistance to fear, mastery of fear-not absence of fear.” Do whatever works for you.
And unlike that lion, asking the Wizard of Oz for some courage is not an option.
Oh, for those good old days, when some of our worst problems were dealing with these demons.
Marcel Strigberger, after 40-plus years of practicing civil litigation, closed his law office and decided to continue to pursue his writing and speaking passions. Read more of Strigberger’s work at marcelshumour.com.
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