Tag Archives: Lawyer

Dungeons & Dragons (& Courtrooms)

The young lawyer is bent over a dog-eared book, preparing for the ordeal to come. He wants to know the rules cold, but rules won’t be enough. He’ll need to muster all his personality, his powers of persuasion, and his quick wit. His opponents have been preparing for months, laying traps and planning attacks, defenses, and counterattacks. All of his experience will help, but to a certain degree, it cannot guarantee success–too much rests on the whims of other participants and even a degree of chance. He’ll do everything he can to control the outcome, but the victory could easily go to his opponent.  Sure, he gets to go home tonight, no matter what happens, but the same can’t be said for the person who is relying on him.

He closes the book, gathers his papers, and turns to the door. “I’m as ready as I’ll ever be,” he says to himself. “Time to Return to the Temple of Elemental Evil.” 

I don’t imagine there are too many lawyers who will admit to playing Dungeons & Dragons in their youth. The stereotype of the socially inept youth bent over a table rolling dice to determine whether an orc lives for another turn doesn’t mesh well with the need to market oneself as a smooth and capable professional who can work a room, win over people, and steer even the worst case to success. But those attorneys who did play tabletop role-playing games (“RPGs”) (or still do), could draw some important professional lessons from the experience. And each of those lessons can be related to one of the principles of Stoicism.

Rules, Exceptions, & Playing Anyway

RPG’s and the law are full of rules.

Lawyers and gamers must both learn the rules of their chosen pursuit. They need to discover when the rules will let them achieve their objective directly, when they need to take another path, and when they need to face the reality that some objectives cannot be accomplished. Similarly, lawyers and gamers both deal with rules that are subject to some amount of interpretation and variation. To both, the rule used may be much different than the rule as written. And in both situations, a well-crafted argument can make the difference.

And the rules are full of exceptions. Sometimes, the exception is more important than the rule. A good claim or defense can be gutted by a single exception, and the adventurer who forgets that undead creatures are immune to the sleep spell is in for a rough night. So lawyers and gamers both learn to stockpile information that others would never care about, just in case.

Sometimes, neither the rules nor the exceptions are helpful. Still, as a gamer and a lawyer, one is faced with the reality that the rules are part of the experience one has chosen to dive into. Whether dealing with the reality that an interest must vest, if at all, within 21 years of a life in being, or with the reality that the blue dragon’s breath weapon has the potential to do more damage than your character has hit points,  you’re the one who chose the task. So you learn to play anyway.

And there’s where Stoicism comes in. A common theme for the ancient Stoic writers was acceptance. It was rooted in the idea of living in harmony with Nature. Stoics believed that one should not expect life to be easy; the world exists as it always has and does not mold itself for our convenience. Seneca put this well in Letter CVII: “One has to accept life on the same terms as the public baths, or crowds, or travel. Things will get thrown at you and things will hit you. Life’s no soft affair.”

You know the rules when you begin or you learn them quickly. If you find the experience unenjoyable, you can always quit.

Standing in the Shoes (And Letting it Go)

One of the hardest things to communicate about being a lawyer or being a gamer is the relationship between client and lawyer or character and player. Both are relationships of identity and distance in equal parts.

A lawyer must remember that her actions on behalf of a client are likely to be deemed the actions of her client. In many instances, as with a corporation, a client cannot act except through the lawyer. And obviously, a character can rarely do anything that is not directed by the player. A lawyer must also remember that it is her client’s interests that must be paramount during the representation, not her own. And a player will ruin her enjoyment and that of her fellow players if she forgets to always consider what her character would do. In both situations, there must be a mingling of identity to a certain extent.

But there is always, and must always be a distance. It would be delusional for a player to disregard the fact that he is not his character. He doesn’t cast spells or fight dragons. It is similarly dangerous for a lawyer to forget he is not his client. He has a different set of ethical responsibilities to uphold and cannot damage his judgment by losing objectivity.  The character is folded up and put away at the end of the adventure , the player goes about his life. And whatever happens to the client, the lawyer has another life to lead.

So both the lawyer and the gamer must walk a line. They need to identify with their counterparts, to take on their mantle to one extent or another. They may be judged by strangers based on the actions of their client or character. But in the end, both must learn to let go of the identity. Characters will be killed or turned into stone. Clients will go to jail or lose their fortunes.  But the gamer and lawyer cannot take those losses personally. To do that would only bring anguish without good reason.

This relates to another Stoic principle. The Stoic must learn to think of the body as indifferent as compared to the will, but must also consider how she must live in accordance with nature as dictated by the body. She must identify with her body and her nature as a human being, but she cannot let that identification override her imperative to maintain the supremacy of the will.

Playing at Dice

Lawyers and gamers both speak of rolling the dice. They are aware that their pursuits are, to at least some extent, controlled by forces above their influence. Whether jurors, other parties to a transaction, or actual dice, there are important factors that lawyers and gamers cannot control. For lawyers, this includes everything that happened before the lawyer became involved. There is only so much that can be done for the client who hasn’t paid taxes for the last ten years or who confessed to detectives after waiving rights to silence and counsel.

Despite that, gamers and lawyers alike need to learn an important life skill. While accepting that there are things beyond their control, lawyers and gamers (and people in all walks of life) must learn to use what they have to the best advantage. They cannot simply surrender in the face of a bad turn of fate.

Epictetus expressed this concept succinctly, “How then shall a man preserve firmness and tranquillity, and at the same time be careful and neither rash not negligent? If he imitates those who play at dice. How do I know what the cast will be? But to use carefully and dexterously the cast of the dice, this is my business.” Discourses Book 2; Section 05

And that is the common business of all of us, lawyers and laypeople, gamers and nongamers. We must learn to accept that we cannot control every eventuality. But, just as importantly, we must learn that we are always in control of how we respond to the situation presented to us.

 

How to Kill the Snark

Snark is over. 

Little by little, the internet is beginning to rebel against cutting and unnecessary sarcasm. It is beginning to reject the idea that other people’s enjoyment serves only as a target for our superior wit and that truly enjoying a mundane moment is a pleasure reserved for morons. Soon, we may no longer judge how sophisticated a person is by how thoroughly they denigrate and dissect the food at a chain restaurant.

This is partially a cultural movement. But there are other implications that will take is further. Some commentators are beginning to suggest that snarkiness is actually beginning to be viewed as an undesirable quality in business circles (perhaps suggesting that college coffeehouse culture no longer rules the pop-business scene). A recent Lifehacker post cataloged how snark (as a habit or lifestyle) has ill effects  on a person’s health, career, relationships, and even the wider structure of society.

To deal with snark, it is important to mark how it arises. Knowing that, we can better know how to guide our behavior away from it. According to the professionals interviewed for the Lifehacker article, it develops as a defense mechanism. People use snark to project their own unhappiness or bad feelings on to others or redirecting the contempt they imagine others feel toward them.

Beyond that, it serves another protective purpose. Snark is a cheap way of establishing a veneer of superiority. By mocking the enjoyment another takes from an experience as unworthy or by taking the position that the other person is naive, the snark can appear more sophisticated or intelligent. From early in life, we learn that pleasing the critic is important and that the critic is likely an expert. The snark takes advantage of that lesson; he directs criticism (often founded in nothing but opinion) and gains the imprint of the critic’s expertise.

So how can we use Stoic philosophy to steer away from snark?

First, we can take a Stoic approach to the causes of snark. Instead of projecting unhappiness at others or seeking to avoid the contempt we might imagine others feel for us, we can seek the counsel of reason. Reason suggests that instead of multiplying misery by inflicting pain on others, we should seek out and address the causes of our unhappiness. In many cases, the root cause may be a failure on our part to discriminate between what is in our control and what is not. By taking a new perspective, guided by Wisdom, we can alleviate our negative feelings without being snarky.

Second, we can determine whether it makes sense to attempt to appear superior. Will our attempt impress someone who is wise? That seems unlikely. The wise are impressed by Wisdom, not the mere appearance of knowledge. It might impress someone else, but why does that matter? The unwise person is just as imperfect as we are, just as foolish as we are; it makes no sense to seek to impress him. As  Marcus Aurelius and Epictetus both advised, it does not matter how other foolish people view us, it only matters that we seize upon what we control to seek to live virtuously. In addition, surely we should be spending the energy and time involved in being snarky to pursue virtue.

Finally, a special note for lawyers: Snark is not persuasive. Too many lawyers resort to sarcasm in written or oral argument. Instead of seeming smarter than their opponent, those lawyers come across as childish and unprofessional. A snarky approach often appears (whether justified or not) to be a cover for a lack of preparedness or good support. You are better off supporting your own argument or countering with calm, reasoned analysis than you are stabbing at your opponent with what you are sure is your rapier wit.

The Courageous Lawyer

Last week, I wrote about ways lawyers can benefit from Stoic Wisdom. I hope that post helped illustrate the practical effects of a Stoic life. This week, I’ll focus on Courage, which I previously identified as “wisdom concerned with endurance.”

Initially, it is important to notice that Courage starts with Wisdom. That means that the focus remains, at least in part, on identifying and discriminating between the Good, the Bad, and the indifferent. So in a way, Courage is the particularization of Wisdom to matters of endurance. The best summary of Courage I’ve come across in Stoic literature comes down to us from Marcus Aurelius:

Image Courtesy of Carol Guillaume under a Creative Commons license

“Whatsoever doth happen unto thee, thou art naturally by thy natural constitution either able, or not able to bear. If thou beest able, be not offended, but bear it according to thy natural constitution, or as nature hath enabled thee. If thou beest not able, be not offended. For it will soon make an end of thee, and itself, (whatsoever it be) at the same time end with thee.”  Marcus Aurelius, Meditations, Book X, Section III. 

Simplified from the archaic language of the public domain translation, Marcus’ sentiment is essentially this: Either you were made to survive this hardship, or it will kill you. Either way, it will be over.  This is a reminder that any hardship or duress is ultimately transient. To Marcus (who wrote the Meditations as a journal to himself), that reminder would serve to help him exercise Wisdom unobstructed by transient stress or pain. It would help him identify stress or pain as something that is indifferent and therefore cannot be permitted to interfere with the pursuit of excellence (virtue).

A modern lawyer is probably not faced with the physical privation Marcus suggested in his Meditations. Unlike Marcus, the modern lawyer is not typically faced with long marches through hostile territory, the possibility of political assassination, or the hazards of (relatively) primitive living conditions and medical care. Instead, the hazards modern folk must endure are more likely to be less direct, although the risks of illness and other natural conditions have not changed.  When it comes to lawyers, I’d be remiss if I didn’t address the largest problem facing young lawyers today — lack of employment. (Not to mention I could hardly be a lawyer blogger without complaining or commiserating about a lack of lawyer jobs.)

A recent NALP study reported that only 65% of 2011 law school grads have jobs as lawyers, a record low. Judging by the number of depressing stories and bitter comments in the blawgosphere, it may be worse than that. Even in my own experience, I’ve faced the costs of a  shrinking legal job market. And the failures of behemoth firms over recent years shows that it is not only new lawyers who face the fallout of a depressed legal hiring market. Worse, when new lawyers can’t find jobs as lawyers, they find it more difficult to get legal experience, without which neither employers nor prospective clients want much to do with them.

Stoic Courage can help. Just like Marcus, these lawyers are worried. They aren’t worried about the Germanic tribesmen on the other side of the river, but about the student loan debt collectors who may call next week. They don’t fear losing a limb or child to illness, but they dread losing their dreams of becoming the lawyer they went to law school to become. Either way, they share the emperor’s feeling of powerlessness. And Marcus’ advice applies to their situation just as forcefully as it did to his.Image courtesy of jridgewayphotos under a Creative Commons license

To summon their Courage, these lawyers need to remind themselves that the circumstances they face now or what they have done in the past cannot be changed. They can only affect the future. As for their present circumstances, lawyers should consider the limits of those circumstances. As Marcus noted, a person will either survive his circumstances or will not. Stated another way, either a person will endure or she will not. To a Stoic, the mere fact of survival or death from those circumstances is indifferent. The key is to remember to exercise Wisdom concerning those circumstances while they persist and concerning the course toward the future.

So what does Wisdom dictate about enduring those circumstances? Wisdom, as always, dictates that a person should pursue virtue. In this context, it is important to explain what virtue means to a Stoic. Virtue is the English word most often chosen as a translation for the Greek word “arete.” Arete differs from the modern concept of virtue in that it does not necessarily carry the connotation of morality. Instead arete is concerned with excellence or with fulfilling one’s potential and obtaining results. Taking all of that, Wisdom dictates that a person work toward accomplishing their aims and accomplishing them well.

But what does that mean for down on their luck lawyers? The period of unemployment or underemployment must come to an end. That will happen either when the lawyer finds a job or when the lawyer dies. Given the choice, I’d prefer it to end with finding a job. Sharing one’s bitterness at not finding a job (or a good job), spending time creating or perusing blogs about law school scams, or pursuing a lawsuit against one’s alma mater don’t seem to me to be helpful to that end. Instead, networking, participating in pro bono clinics, and engaging in nonlawyer work while developing a plan for further education or saving to start one’s own firm seem they would be more beneficial.

To put all of this more simply, Courage is about using Wisdom to guide one through difficult circumstances. Where Wisdom is purely concerned with identifying what is Good, Bad, or indifferent, Courage is about choosing the Good and disregarding the indifferent when times are grim. For the hordes of out-of-work attorneys, the courageous thing would be to stop concentrating on their debt or lifestyle and to start concentrating on their skills (whether as an attorney or otherwise). The practical results of this are obvious. Worrying about whether or not one will survive doesn’t affect whether one will survive. But working on becoming better at one’s chosen career improves the chances that career will become remunerative.

In that way, the Stoic lawyer becomes both more tranquil at heart and more successful in his profession.