Managing stress in litigation

The most relentless buzzword in legal practice seems to be “wellness”.  Jeena Cho writes an interesting column on the subject for the ABA Journal.  Stress management is the source of quite a large number of articlesLawyers Weekly recently ran a story with guidelines on establishing resilience covering –

1. Engage with family and friends. Take the time to maintain healthy and emotionally stimulating relationships outside of work and explore ways to connect with people in meaningful ways. For example, go for a nice walk after work or eat a meal with friends or family as often as possible.
2. Get into a structured sleep habit. Aim for seven to eight hours a night and wake up at the same time every morning (even on the weekend). ….
3. Divide your day into segments. Allocate time for certain work tasks, time to move your body and time for mental breaks.
4. Find a way to be active every day. …. Just 30 minutes a day can work wonders for your brain and increase your resilience long-term.
5. When in doubt, breathe out. ….

This sounds great, although it’s impractical when your workday looks like this –

lawyer overwork

Anyway, this left me wondering what I recommend in the way of stress management based on a career which has not been uneventful.

Don’t Panic

This is a biggy.  One of the sagest bits of advice I ever received was from my friend Pam, who in turn got it from a veteran CFA Captain:

When you turn up at a bushfire,  the first thing you should do when you get out of the truck is lean on the bullbar and have a cigarette.

It makes sense, right?  The five minutes you take for a cancer-stick won’t make much of a difference and you’ll calm yourself down, appraise the situation and react to it calmly.  In the world of law this translates to: your opponent’s sent you an email refusing to agree to a vital adjournment?  Go and make a cup of tea, then come back and look at how you’ll respond to the unco-operative bastard.

You Can Fix It

It’s easy to forget, but just about every misstep in litigation can be fixed.  The only ones that can’t be repaired are missing a statute-of-limitations date or (in my jurisdiction) missing a step in the workers compensation serious injury/common law field.  Virtually every other glitch can be fixed.  It may be expensive and embarrassing but it can be fixed.

Speak Without Thinking

This one is counter-intuitive.  Let me explain.  You can never show weakness or indecision and so your first response to a challenge must be to return fire.  So, if you’re on the phone to your opponent and they’re telling you how rubbish your case is, you should have a stock set of phrases to commence any reply. First, hearing your own voice say something tends to persuade you it’s true.  Second, the brain has a remarkable ability to come up with something that will back up you initial statement.  Some of my usual phrases are –

Well, I’m afraid I don’t see it that way.

I can’t imagine a jury will agree with you.

I must say, that’s not my understanding of the law.

I don’t think that position is sound.

That’s a curious line of argument.

Well, if the defendant wants to take that position, that’s a matter for you.

If all else fails, you can finish with “It’ll be interesting to see what the Court makes of it”.

Have a Rag Bag

Litigators should have an intellectual rag bag they can rummage through for ideas.  The only way to acquire this valuable resource is utterly chaotic reading about the law.  Read decisions from random jurisdictions, like the All India Reporter – Rangoon or the Supreme Court of Latvia.  Flip through any lawyers’ magazine or law journal that crosses your path.

All India Reporter
Image from here

It’s astonishing you can use an intellectual tool you gather from them.  In no time at all you’ll feel like you can deal with any problem that the law throws your way.

Prepare a Strategy

If service with SES has taught me anything, it’s how to prepare a SMEACS briefing.  These briefings are an ideal way to organise your thoughts and plan your way to a win.  They’re incredibly helpful if you’re worried about a file and you can pick it it up and see exactly what you planned to do next.  The acronym stands for

S = Situation: What are the client’s injuries? When was the accident? What is standing in the way of them getting some money?

M = Mission: What are you trying to achieve?  Do you want to bring the matter on as a priority?  DO you want to win (one assumes so)? Do you need to extend time?

E = Execution: What precise steps need to be accomplished to get you to that point?  What medical reports are needed, and who from?  Do you need a site inspection?  Should counsel be booked?  This will usually be the longest piece of the note.

A = Administration: Are there interlocutory deadlines to be met?  Do you need to allocate particular jobs to someone else (for example, preparing a Court Book?).

C = Communications: Do you need to update your boss?  Are you dealing with your opponent’s Sydney office rather than their Melbourne office?  Do you need to include a notice under the Service and Execution of Process Act 1992 because you’re suing an interstate defendant?

S = Safety: What is going to trip you up?  Does the client need a Tigrinya interpreter for their medical examinations?  Are they volatile and inclined to pick fights with doctors?  Do you have a looming limitations date?

Preparing one of these briefings can take anything from 45 minutes to a couple of hours but (and trust me on this) it will save you a mind-boggling amount of time in the long run.

So there you have it: my two-cents worth on the subject of stress management for litigators.  What tactics do you recommend?

Workers’ Compensation as a Vocation?

My twitter feed is nothing if not diverse.  One of the feeds I’ve been especially enjoying lately is that of a young postulant describing her life in the convent.  She certainly loves her calling, and her posts got me to thinking whether I could be doing something more with my own life.

This in turn got me to thinking about vocations.  I know for sure that I have no calling to the priesthood.  But, I’ve always had fondness for the monastic life.  My honours thesis was written on St Bernard of Clairvaux.  The austerity of the Cistercians has a remarkable appeal.  There is, actually, a Cistercian abbey a bit over an hour from where I live.  Nevertheless, there’s not a lot of point exploring the cloister while my darling daughters are still young. The monastic life is unpaid, and there’s never a good time to leave your kids high-and-dry.

(To digress: can you imagine St Bernard of Clairvaux with a twitter account?  If you can’t, read a collection of his letters.  He’d have been incapable of shutting up and probably a pretty savage troll)

And then it crossed my mind that maybe what I’m doing now is my vocation.  That is, maybe being a worker’s compensation lawyer really is what God has called me to do.

Hear me out.

My family situation means I can devote most of my energies to work.  Possessions have very little hold over me:  I live in a single rented room in a lodging house.  I can’t imagine ever owning a house, or wanting to.  My belongings are really just my clothes, some books and a battered old car. My food intake is fairly basic: oats, vegetables, bread rolls and stuff out of tins.  The things I like best are cheap wine and good beer.  Fleshy desires are basically non-starters with me, partly by nature and partly by obligation.  My life, then, is already quite a pared-back thing.

So far, so good. I imagine some or all this could be said of quite a few people in the world. What changes it for me from a situation to a calling?

The Big Guy does.

Pope Leo XIII (image from here)

Pope Leo XIII issued Rerum Novarum in 1891.  He talked about the proper relationship of capital and labour and stated that –

wealthy owners and all masters of labor should be mindful of this – that to exercise pressure upon the indigent and the destitute for the sake of gain, and to gather one’s profit out of the need of another, is condemned by all laws, human and divine. To defraud any one of wages that are his due is a great crime which cries to the avenging anger of Heaven. … Lastly, the rich must religiously refrain from cutting down the workmen’s earnings, whether by force, by fraud, or by usurious dealing; and with all the greater reason because the laboring man is, as a rule, weak and unprotected, and because his slender means should in proportion to their scantiness be accounted sacred.

A big whack of my work goes into ensuring people receive proper weekly compensation under the Workplace Injury Rehabilitation and Compensation Act 2013.  With some insurers (naming no names) this can require negotiating tactics that border on “demanding money with menaces”.  I’d never before thought of it as work with a touch of holiness.

Sweatshop, c.1890 (Image from here)

On the plaintiff side I’ve almost invariably acted on “no win – no fee” terms.  That is, if the claimant does not recover compensation, my fees are waived.  This, too, seems to be approved by Rerum Novarum, inasmuch as help is provided to people who might otherwise go without:

when there is question of defending the rights of individuals, the poor and badly off have a claim to especial consideration. The richer class have many ways of shielding themselves, and stand less in need of help from the State; whereas the mass of the poor have no resources of their own to fall back upon, and must chiefly depend upon the assistance of the State. And it is for this reason that wage-earners, since they mostly belong in the mass of the needy, should be specially cared for and protected by the government.

Another big slab of my work involves ensuring workers compensation insurers pay what they are required to in terms of medical expenses.  Pope John Paul II touched on precisely this point in Laborem Exercens:

The expenses involved in health care, especially in the case of accidents at work, demand that medical assistance should be easily available for workers, and that as far as possible it should be cheap or even free of charge. … A third sector concerns the right to … insurance … in case of accidents at work. Within the sphere of these principal rights, there develops a whole system of particular rights which, together with remuneration for work, determine the correct relationship between worker and employer.

The Church’s teaching on matters of economics in particular or social justice in general tend to attract condemnation from my side of politics – sometimes from podcasters like Mike Spaulding and sometimes from commentators like Rush Limbaugh (Limbaugh, frankly, should know better).  Well, be that as it may.  The more I think of it, the more this work really does seem to be my vocation, and the way I am being asked to serve.

I can’t imagine anything I’m happier to think.

Ad maiorem Dei gloriam!

What didn’t you expect?

It’s Friday, and so I’m posting something a bit lighter than my usual casenotes for a change.

The other day, Nikki, who blogs at My Life to Our Life, put up a post comparing what she’s working at now to what she planned to do when she was a child.  This sort of thing has quite a bit of meaning for me given my four year employment farrago prior to coming back to the law, in which the previous installment looked like this –


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Anyway, this got me to thinking about things in your job you didn’t expect when you went into it (or in my case, came back to it).  Something I didn’t expect on returning to the law was how often I’d find myself drinking cold tea and coffee.

I should explain.

I love what I do, and because of that, I get a bit focussed on it, especially if it’s a challenging file.  I also drink a lot of tea through the day.  This is a poor combination.  At least once a morning and a couple of times each afternoon I go and make myself a mug of extra-strong Tetley and then come back to my desk.  As soon as I do I find myself caught up by the current legal problem that I need to unpick.  Meanwhile, my mug sits there thus…

BP 25.10.18B
A mug of tea in its natural habitat

By the time I remember it, the tea is feeling unloved and (like any things that feel unloved) it’s having trouble staying excited about its job, which is to be hot and bracing.

I’m sure this isn’t a rare problem.  My friend Allie, for instance, at Living My Full Life, recently posted about how much she’s enjoying a line of seasonal teas.  She has a newborn baby, and I’m guessing from experience that she drinks a lot of it fairly lukewarm.  Anyway, it seemed to me that my experience now contrasts radically with my not-too-distant work as a factory hand or gardener or labourer when the tea break/smoko was close to sacred and was rarely-if-ever disturbed.  I suppose it’s because the five minutes of peace and quiet for a hot cup of tea or coffee made a welcome break from sun and dust and power tools and physical labour.

What do you find about your current work that you didn’t expect?

Inside the Supreme Court Library

Because it’s Friday, it’s time for a heart-lifting post.

One of the many perks of being a lawyer is getting to work in some of the most beautiful buildings every constructed.  I wanted to stretch my legs this lunchtime and I took some pictures I’d like to share of the heart of the library of the Supreme Court of Victoria.

scvic
Image from here

The Supreme Court building itself is beautifully ornate sandstone on the outside.  When you get inside it, though, it gets even better.  At the very heart of the library is a gorgeously sculpted lamp over a reading desk.  I suppose the lamp must have been gas-powered originally.

The part of the building around this area consists of two roughly levels which contain the leading Australian and British law reports and law journals (the Commonwealth Law Reports, the Victorian Reports, the Appeals Cases, the Law Institute Journal and so on).  Other series of reports (American, Canadian and so on are elsewhere in the library)

Each of the sections of the floor is lavishly decorated.

A highlight for me are the stained-glass windows at the top of the dome.  They contain the small detail of Britain’s lion and unicorn crest and Australia’s kangaroo and emu.  I like the notion of showing the place where English law began and where it has now taken root.

The flora in this image seems to be the English rose.
The flora here seems to be stylised wattle leaves

I’m as much of a fan of electronic access to information as the next lawyer.  Certainly my work would be a great deal harder if I needed to go to the Court every time I wanted to read a case, rather than simply flipping open Austlii.  But I think it’s a good thing for any lawyer to head into a library like this one and remind themselves of the proud tradition – and honourable profession – they are part of.