- David Redding
A LITIGATOR MUST BE FIT
The Litigator is responsible for both the good and the bad outcomes that result from Litigation
Seeking positive outcomes is necessary to Prepare for Trial, so they are a part of the Litigator’s Mission.
Taking a damaging deposition of the AP’s (adverse party) primary witness is an example of a positive outcome. So is the grant of summary judgment in the CL’s (client) favor. Good outcomes are necessary for Resolution, but they place the Litigator at cross-purposes with his OC (opposing counsel) and the AP, the two people with whom his interests do not align. It doesn’t make them happy in general and certainly not with the Litigator in particular.
Of course there are also negative outcomes that make the CL unhappy. When they occur, the relationship between the CL and the Litigator becomes strained. But even when they don’t occur, no CL is happy with the bills he periodically receives from his lawyer. Thus, even though their interests align, there is some degree of disharmony between the Litigator and his CL that is built into the relationship.
Couple all that unhappiness and disharmony with the heat that is produced by the AdCon (adversarial confrontation), the constant backdrop of looming deadlines emplaced by the Court and the low regard with which lawyers are sometimes held by the general public and you get to a disquieting bottom line:
Litigation is a very tough way to make a living—it's a Grind
It is not surprising then that lawyers have a high rate of divorce and substance abuse. Many Litigators lack deep friendships and suffer from a sense of loneliness and isolation, even though they are constantly surrounded by people. They may also have the added burden of being AdCon-adverse like my friend Dan, for whom the daily Grind of Litigation is a perpetual state of misery.
Google “lawyer satisfaction” and you will get a hundred hits for articles about the high attrition rate for lawyers and the difficulty of achieving work-life balance, particularly for female lawyers. But even lawyers who went to law school before the advent of the internet (like I did) knew all of these things going in. It was no secret. There was even an essay question on my law school application about the stress of practicing law that required me to describe why I thought I was strong enough to withstand it.
I remember laughing at the question a little bit. Strong enough for the practice of law? I had just spent nine years in the Infantry and Special Forces. Compared to that, how stressful could it be to practice law? Ha!
And yet, there I was just a few years later, after the trial of my Big Case, struggling to hold myself together when the jury returned its verdict, and then spending three days lying on the floor of my office counting the holes in the ceiling tiles and wondering if I had the strength for even one more bout of PTE (post-trial exhaustion).
That event forced me to confront a truth about myself that I hated—I wasn’t fit enough to withstand the Grind
I was forty pounds overweight, drank too much, fought with my wife too much and was fantasizing (of all things) about becoming a pastor (a long story for another time). The Grind was slowly killing me. But, because I knew I can’t-not Litigate, I also knew that I had to find a way to do what I was doing that wouldn’t destroy me.
What I discovered was this: to be and stay Missional over the long haul requires a Litigator to be strong enough to withstand the daily effort of Preparing for Trial without being worn down. In other words, he has to work the Grind rather than having the Grind work him. To do that, the Litigator must have Fitness, which is proper alignment with his own body and the people in his life with whom he is in close relation. Additionally, he has to have a healthy view of where he fits into the world, which starts with an acknowledgement that he is not the king of it.
To be clear, I’m not contending that an obese lawyer whose personal relationships are in utter disarray can’t be Missional, only that he will not be able to sustain Missionality over the long haul. Eventually, even a highly effective Litigator’s lack of Fitness will either destroy him or turn him into a Processor. He will either burn out from the Grind or just fade away into Complication-hockey.
Moreover, seeking work-life balance will not help him. It sounds good, but in practice it is a useless pursuit because work-life balance is a unicorn—a nice, pretty rainbow-crapping unicorn, but a unicorn nonetheless. A Litigator can’t balance his practice with his family and health because the former is a jealous mistress that will always devour the latter. You can’t balance a lion with a lamb. The Litigator’s life, even if he is doing it right, is one of pain, uncertainty and chaos. He has to be prepared for the Grind rather than trying to control it.
The more skilled a Litigator is, the more work he will get
That’s a good thing. But once that spigot has been opened, he will have no control over the volume of what flows out. It’s not something that can be balanced because balance requires control, and the Litigator has no control over his workflow—other than to shut the spigot off completely.
Picture a Litigator’s time and energy as a galvanized bucket with a finite capacity. When he starts practicing, he has plenty of room in that bucket for: 1) his work (which starts only as a drip), 2) his family (particularly if he hasn’t started one yet), and 3) his personal needs (which are few). But as his workflow increases, it slowly begins to fill the bucket and crowding everything else out. Eventually, unless he takes action, his work will drown every other aspect of his life, until it spills over the edge of the bucket onto the floor and creates a mess.
That is where I found myself after the Big Case. What my body and soul (and my wife) needed was for us to go somewhere very far away and very hot for about two weeks to recover. But I couldn’t do that. I had a thousand emails to answer, dozens of other cases to set back in motion and a big bill to collect if I wanted to pay my mortgage. The only break I could afford was to lie on the floor for three days and fantasize about work-life balance.
With help, I saw that I had to place my Fitness before the Grind if I wanted to be able to maintain the Grind
Fortunately, my friend Kevin convinced me to abandon that unicorn in favor of a set of priorities. Instead of seeking a balance between work and life, he convinced me that I had to place my Fitness before the Grind if I wanted to be able to maintain the Grind. After all, it made no sense for me to sacrifice my health, my marriage and my relationship with my children in order to be a Litigator if doing so would ultimately destroy my ability to Litigate anyway. What would be the point?
What this looks like in application depends upon the circumstances of the individual lawyer. For me, it meant a firm culture that prioritizes Fitness. If you are in a firm that reverses those priorities (or encourages you to saddle up on the work-life unicorn) you might want to think about a change.
To be Missional over the long-haul, a Litigator has to be Fit enough for the Grind.