Lean on Me
The law is this wonderful, expansive and maddening beast. I have had many a client tell me that they don’t envy my profession, and that what I do is absolutely messed up. Yep. I understand what they mean. Some things about what we do can be MADDENING!
How many of us have read up on something. Read it again. Then read it AGAIN. And then for good measure….you read it one more time (after putting it away for a minute then coming back to it). Oh, shit. Do you get it? Yeah, this is what it says, right? Bravo! You get it! You know what you need to do!
But there is a problem. Opposing counsel acts like you don’t know what you are talking about. You quote the law and what you have read to them, and they change the subject or don’t answer the question. You ask yourself “Am I wrong??? Did I NOT get it right?” You go back to the books and the cases. You read voraciously up on things. You take a CLE on it to make sure that you have grasped it. Yeah….what in the hell are they talking about…you get it! Opposing counsel keeps acting like you don’t have a fucking clue about what you are doing or what you are talking about. WTF??
How do we as practitioners deal with this? These types of scenarios are common (regardless of what some attorneys may pretend; like it doesn’t happen to them). Of course, we don’t get things right. It happens and is a natural part of life and practicing law. But, when you know you have done the work and put in the time to understand and grasp what is in front of you, and you are confronted by people (opposing counsel, clerks, whomever) that keep insinuating that you are wrong (but totally ignoring the law and rule that you point out) this is the time for us as lawyers to lean on one another, reach out and ask somebody.
But we are so trained to not do this. The culture of law school and subsequently highly competitive legal practice have conditioned us to not reveal what we don’t know, or are unsure about, to anyone; at all costs. So, it leads to us not turning to our colleagues to help us to either honestly validate our legal work and conclusions, or point out that we are wrong and need to go back to the drawing board. I have been very fortunate to have a good group of learned attorneys to whom I may turn in order to bounce off these legal issues. So that I can adequately assess for myself whether or not I do have good “legal” reality testing, and that what I am thinking is supported by statute and case law.
This is really important because so often there is a lot of gas lighting that happens in our profession. I don’t know why this is when the rules are written down plainly for us to see. But so often, others try to convince us that the statute or rule actually doesn’t read what it does, even though you are reading it out loud in court and it is reading that way. When you are told that green is not green no matter how you look at it, it can do something to not only your confidence, but specifically your confidence in your own reality testing and legal capabilities. This can create a domino effect for an attorney because when they are continually pelted with this legal fallacy that they are not right, when they in fact are, it can cause the attorney to eventually not walk back into court for fear of the same thing happening over and over. We are not always going to be right, but when we are and it is not validated, it’s tough. That is why turning to other practitioners to help constructively validate or invalidate our positions is so vital to us as lawyers maintaining our confidence and sanity in the practice.
How many of us have felt like we were the only one in the room screaming at the top of their lungs that a rule or statute says one thing, when some others (who haven’t read the statute/rule in over 10 years, if at all) are trying to tell you something different, and no one is willing to pull out the statute/rule to verify it? They need to ask somebody; because you have, and you are right.
This works both ways. Leaning on other attorneys in these times helps us to also catch those instances (however often they may be) when we are wrong and need to go back to the drawing board. That too can help our confidence. How you say? Because when other well-intentioned attorneys from whom you seek advice point out the flaw in your argument, it is usually done within the confines of a safe space and there is room for discussion on how you can arrive at the right answer. That exercise usually builds one’s confidence and reinforces the fact that they have the mental stamina and horsepower to arrive at the right answer, even if they were initially wrong. You also learn something new or are reminded of something you had known but had now forgotten. One more tool in your toolbox.
I happened to be in court recently, sitting and watching a hearing while I was waiting for my case to be called. During the hearing, opposing counsel called me outside to discuss our case. When I returned to the courtroom, the hearing was over. It was a hearing where there was a pro se litigant on one side and an attorney arguing on the other. Afterward, the attorney in that case came up to me and asked me if I had seen their hearing. I told them that I had caught some of it, but unfortunately not all of it. What happened next made me smile. I did not know this attorney, but they asked me what I thought about their legal argument. I felt so bad that I had missed it because I wished that I could answer. But I also felt very grateful that they asked my opinion. They were truly interested in knowing if their work and argument had merit and was legally sound. They were reaching out to lean on someone. They demonstrated a strength and fortitude of character that I don’t get the pleasure of experiencing much. I felt really special that they asked me and happy that they felt that I was someone who would respond positively and constructively. I am so disappointed that I missed their legal argument, because I unknowingly missed the opportunity to be a person like a person to whom I seek to lean on. I missed the opportunity to reinforce to another fellow/sister attorney that they had done a good job, done the work, and gotten it right. I think we need to do more of this for one another and do it more often.
We went through our rigorous education and training for a reason. The law is and can be very hard. Who in the hell is anyone fooling trying to feign like it isn’t? So, looking at others like they don’t have a clue when YOU yourself haven’t done the work they have in order to confirm things is just not the move. To counteract those who do behave this way, lean on another attorney to help. To get more confident and feel more like you have done your homework, lean on others; ask what they thought of your argument like that attorney did me; hang out and watch hearings and give a constructive comment after (if you think the attorney will be receptive). We all benefit if you (me included) do.
I have been both the recipient and provider of feedback and am a better lawyer for it. We could all benefit from more camaraderie these days.