I’ve mentioned before that the Stoics saw great value in performing one’s role in life to the best of one’s ability. In seeking to do that, I often contemplate what it means for me to be a good lawyer. There are almost as many opinions on this subject as there are lawyers (especially because where lawyers fail to differ, clients will be happy to make their thoughts known). It is also a matter addressed by innumerable legal bloggers, usually while trying to sell their consulting services or advertise their approach to prospective clients. In that, I don’t imagine I’ll appear much different or more valuable, but I feel compelled to publish my thoughts.
But it is a thing I spend a lot of time thinking about. I’ve been studying the different thoughts and approaches as I’ve been working for a court, taking advantage of the luxury I’ve had to be able to sit and watch other lawyers without having clients of my own. One thing I’ve watched with particular interest is the ABAJournal.com series, The New Normal. I feel that a recent post by Paul Lippe offered a succinct metaphor for the New Normal approach and the model from which the New Normal seeks to distinguish itself. In the article, Mr. Lippe used two hypothetical doctors to illustrate the two approaches:
“Brenda Brain Surgeon is the chief of Neurosurgery at Mass General Hospital. Brenda has nimble hands, deep insight, and a calm demeanor. She excelled through four years of medical school, six years of residency, and four years of fellowships at top programs. When she operates, the room is silent, the patient sedated, and younger doctors and operating room nurses hover at her beck and call. She has a waiting list of patients, and makes $1,500,000/year. Many (but not all) of her patients do well after surgery.
Victor VHA Chief Medical Officer is the senior physician for the Veterans Health Administration Medical system, one of the largest medical delivery systems in the world. Victor is responsible for overall policy-setting for tens of millions of veterans and their families. The VHA is a leader in both outcomes research and electronic medical records, and is rated more favorably than other health care providers who spend more per patient. Victor has to worry about training and retaining doctors and nurses among the VHA’s 240,000 employees, setting care guidelines, trading off costs within his $47 billion budget and making sure patients take the meds they are prescribed and don’t do things to make their health worse. He has brain surgeons (none perhaps quite as individually skilled as Brenda) working for the VHA, but he can’t afford to have them operate in all the scenarios Brenda would. Victor makes $250,000/year, and has a good pension.”
To Mr. Lippe, Brenda was the model of the dominant professional ideal. But he argued that Victor was the model for what lawyers need to become to remain relevant to clients. Stating that we are entering “The Age of Operational Law,” he argued that clients are seeking lawyers who provide systemic, operational services and not targeted, judgment-centric troubleshooting services. He argued that the operational lawyers provide the most value by adjusting and directing the management of entire systems, instead of offering only high-cost, high-stakes advice on individual situations.
Reading the article, it struck me that both models are equally irrelevant to me as I enter private practice. I’m heading into a small practice focusing on working- and middle-class individuals and their businesses. To give some indication of what my potential clients are facing, I’m joining my wife’s bankruptcy practice. These are hard-working people facing some of the toughest situations they’ve ever encountered. I hope to protect them and help them rebuild after my partner helps them obtain a fresh start. These aren’t people who need (or who can afford) the best surgeon in the region. They also don’t need (and wouldn’t appreciate) an outsider to step up to take over their lives and make their mundane decisions. They aren’t in need of life-saving surgical intervention or a person to run their day-to-day lives; they need a knowledgable, regularly-accessible person who knows them well, who can prescribe an acceptable course of action for treating their ordinary acute needs, and who knows when to refer the matter to a specialist. They aren’t looking for Brenda Brain-Surgeon or Victor VHA Chief Medical Officer–they are looking for Patty PrimaryCare.
In the style of the other doctors, I’d describe Patty like this:
Patty PrimaryCare is one of two doctors in a neighborhood clinic. Patty has a wide comprehension of the illnesses generally contracted by people in her area and the most commonly effective treatments for those conditions. She has also developed a refined sense of when something is beyond her skill to treat. Her clinic is not widely known, but it is well-regarded by her patients and colleagues, who know they can trust Patty to keep appointments, spend the necessary time to make the right diagnosis, and remember what treatments will give her patients an allergic reaction. Patty often has several patients she is treating at the same time for different conditions; one of her most important skills is treating each patient as an individual. Patty prides herself on knowing the smaller details of her patient’s lives. She knows their personal history, living situation, and when they change careers, and recognizes them and their family members when she encounters them in the community. Patty’s income varies; there are bills she sometimes struggles to pay, but she considers herself fortunate to be doing real good and practicing in the field she’s always dreamed of.
That’s the kind of lawyer I want to be. I think its the kind of lawyer that exists a lot of places and goes uncelebrated. Lawyers like that don’t appear on TV or in movies, except as background characters, but they provide vital services to ordinary people every day. Sometimes they don’t get their clients everything they hoped, sometimes they can’t collect on all of their outstanding billables, but they keep practicing because they love what they do and know that it matters. They don’t need to be famous, they’re happy to honestly and responsibly fulfill the role they’re fated to play.
And because of all of that, they might be the perfect models for the Stoic lawyer.
I’ve spent a great deal of time writing in the negative. That is, much of the content so far has been about what a Stoic should not do or what a Stoic should consider unimportant. That might leave the reader with the idea that Stoicism presents only a set of restrictions and encourages a disconnection with the goals that move a person to be productive. To lawyers—who are acutely aware of the restrictions placed on the by general laws and regulations and the additional demands of court rules, best practices, and professional conduct rules—the idea of further self-imposed restrictions might be especially unattractive. And to many lawyers, whether they are trying to travel the partnership road at a large firm, ascend to leadership in an organization, or build their own book of business, being goal- or success-oriented is a necessary way of life.
Considering that, its time to write directly about how the practice of Stoicism can assist the practice of law. This week, I’ll discuss how Wisdom can liberate a lawyer from some of common concerns and help a lawyer focus on developing goals that will foster professional success.
First, we must remember that the essence of Wisdom to a Stoic is recognizing what is Good, Bad, or indifferent. Second, it is helpful to think of Epictetus‘ division of things between what is up to us and what is not up to us. As translated by Elizabeth Carter, Arrian recorded that Epictetus said, “Some things are in our control and others not. Things in our control are opinion, pursuit, desire, aversion, and, in a word, whatever are our own actions. Things not in our control are body, property, reputation, command, and, in one word, whatever are not our own actions.” Notice that the first category of things are items where the proper approach leads to virtue; the second category of things are all indifferent–they do not aid or harm the search for virtue.
As it applies to a lawyer, Epictetus’ analysis helps define priorities. Given the choice, it is more reasonable to concentrate on those things over which one has control than on those things over which one does not have control. To the Stoic Lawyer, it is imperative to spend time taking the right approach to those things which can lead one to developing virtue and the attitude of the Sage. Applying Epictetus’ categories to those things which are important to lawyers, we can see what priorities the Wise Lawyer would attempt to establish.
Things in our control — Epictetus defined this category to be composed of one’s own actions. As it applies to lawyers, this category includes the lawyer’s composure, her treatment of clients, opponents, employees, and third parties, how the lawyer maintains the confidences of clients, how the lawyer manages his office, and how the lawyer acts to uphold her duties of competence and diligence.
Things not in our control — This category is composed of things other than one’s own actions. As it applies to lawyers, this category includes the results the lawyer obtains for his clients, her income and reputation, the success of marketing strategies, attaining partnership, and being the subject of attorney discipline or malpractice actions.
Comparing these, Epictetus’ advice is very instructive to the Wise lawyer. That lawyer, who has learned to differentiate between that which is Good, Bad, and indifferent and who has learned to determine what is in her control has the power to choose to focus on those things which tend toward virtue and which are in her control. She will not stress herself out over whether she will prevail for her client or close a deal, whether she will obtain money or fame, or whether her client will make a complaint against her. She will recognize that those things are all in the control of others, for example a jury, opponent, or the client. Instead, the Wise lawyer will concentrate her energies on those things which are in her control. She will remember to present her best arguments in the order she intended, to return calls from clients, to treat opponents with respect, to monitor and avoid conflicts of interest or the disclosure of client confidences, to reconcile her trust account on a regular basis, and to pay close attention to developing her skills and professional contacts.
As you may have already considered, by concentrating on those things in her control, the Wise lawyer may also increase her odds of affecting those things not in her control. Juries will not be distracted by unprofessionalism, opponents and third parties will be more receptive to her arguments and proposals, clients will feel well-represented and will be more likely to pay on time and refrain from making disciplinary or malpractice complaints. The Wise lawyer likely will also develop a network of referral sources and colleagues who feel a genuine connection and respect for her. Her reputation in the community will be that of a lawyer who does both well and good. As an additional benefit, this lawyer will not be driven into unprofessional conduct by seeking money or results at the expense of her professional integrity.
This is not to say, of course, that the Wise lawyer will be always met with resounding professional and financial success. Obviously, Fate or the actions of others may intervene. However, the Wise lawyer will keep in mind the advice of Cleanthes, as related by F.G. Sandbach in “The Stoics“:
“What brings happiness is to have the right attitude, to choose the right actions, to aim correctly at the mark. This is in the man’s own power; success, in the popular meaning of the word, is not. Unforeseen and incalculable causes may prevent his hitting the target, his actions may be obstructed, his attitude disregarded; but so long as he does all he can and has nothing with which to reproach himself, all is well with him… [F]or a strong character it is a welcome challenge to be told that he must rely upon himself and that self-reliance is the road to happiness. ” 36-37.