Accepting resistance

by Joel Orenstein

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Over the last couple of weeks, I, along with approximately 200 other legal practitioners, sat exams as part of the Law Institute of Victoria accredited specialization program. Having not sat an exam in more than ten years, along with the added pressures of running a business and 2 young children to negotiate, the stress was extreme. Not to say that I was in a different position to any of the other candidates – far from it. In some ways being self-employed meant that at least I had some control over my work hours and could manage enough time to dedicate towards study (others were not so lucky).

Yet here I was, a so-called expert on mindfulness and stress management, going completely crazy with stress. I was a nervous wreck, unable to sleep, disconnected from others and in bare survival mode for the period leading up to and during the exams.

What was going wrong? I kept wondering why I wasn’t feeling more relaxed considering all the strategies that I had in place to ensure a balanced equilibrium that would see me cruising through. Surely I should be an example of calm and peace. After all, wasn’t I the meditating lawyer, the one that no matter what life threw at me, nothing phased?

Now, having come through the other side, I look back curiously at how crazy I was. I wanted my experience of exams to be different – for them to be stress-free. After all, what was the big deal? I had time to study. Having 10 years of practice under my belt I knew a few things about the law. I have done exams before. Why was I so stressed?

What I failed to grasp at the time is that as much as I desired the experience to be stress-free, it just wasn’t. Exams are stressful, and no amount of wanting it to be different was going to change that. In fact, my wanting it to be different and my resistance to the reality of the experience simply amplified my anxiety and deepened my suffering.

Accepting things as they are, particularly if they are something we would rather not experience, like the stress of exams, is oftentimes the greatest challenge. We want things to be a certain way, and when they are not, we suffer. And this is a great paradox – that in order to relieve ourselves from suffering, we need to accept the suffering that comes our way.

As my experience of my exams shows, this is easier said than done. Resisting pain and suffering is something that we have been practicing for a long time. It is at the core of our survival instinct as human beings. We have a natural aversion to uncomfortable experiences. We don’t like feeling stressed or anxious, so we do all we can to avoid it.

This would be a perfectly sensible approach – only that we all know that the unpredictability of life means that it simply doesn’t work. No matter how much we wish to avoid it, we will all experience suffering.

Although it is true that suffering is unavoidable, what we can change is our approach towards it. Instead of rallying against it, we can understand suffering to be as much a part of us as is joy and peace, and in this way practice real acceptance.

Acceptance does not mean going to war with the part of us that is resisting suffering, which was the trap that I fell into during my exams. Knowing that the problem was my reaction to the stress, I quickly judged myself for having such feelings, and set about trying to change them. This made my suffering exponentially worse as I became caught up wanting things to be a certain way as opposed to accepting the reality of how they were.

True acceptance therefore is an exercise in heart-felt surrender to the reality of what is. It is self-compassion in its most essential expression that does not require doing or changing anything. The irony is however, that it is truly transformative.

Word Crimes

by Mike Wells

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I have to admit to being slightly ol’ school. Some unkind people might call me daggy. But let’s not go there. I like my 80’s music. There, I’ve said it!

Now, to get to the point, I happily noticed that not only is Weird Al Yankovic still alive, but he is still making nifty music parodies. His latest one is of Robin Thicke’s Blurred Lines, which WAY calls ‘Word Crimes’ and I admit to liking the lyrics and the clip a lot.

It got me thinking about how many of us now seem to be more inclined to use the written word rather than verbal communication. And a few specific thoughts about this have since been occupying my mind.

For example, I lost count when I was a family lawyer about how many distressed clients would come to me really out of their head about the way in which a letter had been written to them by another lawyer (representing their ex-husband/wife/defacto/etc). To be honest, I probably wrote a few letters like that myself in my early years as a lawyer because it is so easy to be quite blunt and challenging when you have a client describing their interpretation of a situation to you and are paying you to do something about it. Not until later into my career could I recognise that I was contributing to the acrimony between parents by doing so, and that typically the Court takes a fairly dim view of a letter from a lawyer that might end up being annexed to an affidavit and tendered as evidence for some reason. I suppose my message here to lawyers is to think carefully about how we are writing and what purpose are we trying to really achieve…

I also thought about our clients, and I am talking about family law clients, who as parents seem to have overwhelmingly embraced SMS text messages to communicate with one another in relation to parenting arrangements. I think this is a curious phenomenon and am not aware of their being much written about it as a topic. Sure, I get it that when verbal communication is not going, or has not gone, well, then at least SMS provides an option for information to be communicated, but from my perspective is just too easy to rely on SMS as an apparent reliable method of communication. I use the word ‘apparent’ intentionally, as I think we have all experienced as sender and/or receiver, an SMS text message that has been misconstrued either intentionally or by accident. As a lawyer / mediator I have worked with many clients who have had this experience and at times the consequences of misunderstandings or intentional wind-ups can be catastrophic. And yet it could potentially have been completely avoided, or sorted, with a telephone call. But such a call never happened. I think this is an area of growing concern to me and one that I would like to look into.

Lastly, I was thinking about the way which we as lawyers perform our client work with other lawyers, and it seems that we are not as inclined to pick up the telephone and have a conversation with the ‘other lawyer’ in a matter as often as it used to happen. Instead, we seem quite happy to tap away at an email or letter and send it off, happily engaging in a method of communication that is costly for our clients (to draft, type, send, read, respond, etc) when perhaps an opportunity to have short circuited a long series of written communication by having a telephone discussion, has been lost.

Why are we doing this? I suggest that it is not for billing purposes (as I mischievously suggested earlier) but rather because we as lawyers seem to have disconnected from one another in the hustle and bustle and pressures of life as a lawyer in the 21st Century. We perhaps are not able to easily experience the camaraderie and connection with our peers (and opponents) as often as might have been possible in an earlier era, and more than that, as I have indicated earlier in this blog, we (as a society) seem more inclined than ever before to tap away at a computer screen rather than be engaging with others in a more direct and human way. I think this is also of concern when as a profession we are already assumed (generally) to perhaps be lacking in personal skills when working with our clients. I would like to think this is not true, but it does seem that perhaps we are not necessarily heading in the direction that we might want or need to be if we are aiming to deliver services and stay in touch with the people in the world in which we live, and work.

That’s enough for now. Check out WAY’s clip – I think it’s awesome!

Cheers, Mike

Mindful Practice – a different approach to sustainable and effective lawyering

by Joel Orenstein


The metaphor of lawyer as warrior is celebrated in fact and fiction. Yet for a profession beset by stress, the scars of war are increasingly manifest through early burnout, cynicism, and increased incidence of depression, anxiety, mental illness, relationship breakdown and substance abuse. Although there is a growing awareness of the high indicators of poor mental health amongst lawyers, perhaps lesser known is the growing community of legal practitioners engaging in mindfulness to promote their own health and wellbeing.

Mindfulness in its most basic form is simple present-moment awareness. A faculty that is innate in all of us, mindfulness is not thinking, rather awareness of thinking, of emotions, and of the ways we experience the sensory world through seeing, feeling, hearing, tasting and smelling. Mindfulness practices develop and cultivate this faculty by purposely paying attention to what is occurring inside and outside of us, moment-to-moment, in a nonjudgmental and openhearted way.

Why would we want to develop and practice mindfulness?

Basically mindfulness makes us feel better balanced. With awareness we are able to better deal with the ups and downs of life by directly counteracting the negative effects of stress. If you stop and watch your thinking for a moment you will notice very quickly that the human mind is a wandering mind. Inattention and distraction form the majority of our daily mental activity as the mind constantly seeks favourable experiences and pushes unfavourable experiences away. The result of wandering is distorted thinking, dissatisfaction, worry and churning of the mind, which is at the heart of stress, anxiety and depression. By grounding yourself in awareness of all that is occurring, including the wandering itself, you no longer need to get dragged along by it.

Simply put, mindfulness is just noticing what is happening in each moment without attempting to change anything. It is self-help that is immediately available and is radically different to our habitual way of dealing with life’s ups and downs, as it doesn’t require eliminating difficulty or imagining ourselves in a better place. With mindfulness we learn to discover a storehouse of clarity and calm that has been here all along.

With perseverance of practice, we are able to observe with greater clarity, cutting through the distortions and reactions that habitually form the basis of our thinking. We can live life more fully and less on automatic pilot, thus being more present in our own lives.

Mindfulness has greater relevance than just stress reduction. Mindfulness helps us to be fully present, to be aware of our own thoughts and reactions and more in tune with those of others. Consequently we are able to listen with more presence, space out less and remain focussed for greater periods of time.

Greater focus and calm naturally improves the clarity of our decision-making. Remaining centred through mindful awareness allows our intelligence and wisdom to function fully, which has an enormous practical benefit on our skill base as lawyers.

At the same time, the more we are mindful, the more external circumstances stop affecting us in the same way they once did. In this way the unpredictability of life does not dictate our functioning nor cause us the same distress. Consequently whether we win or lose, how well we slept, whether we receive praise or criticism, is no longer determinate of our level of satisfaction or success.

Learning to Practice Mindfulness

Generally one cultivates the ability to be mindful through formal meditative practices, and then applies that ability in everyday life where it is most needed. With practice, mindfulness can be immediately available in any moment, even the most stressful.

Like any lifestyle change, you actually need to do it for it to be effective. And similar to physical exercise, it is regular, daily practice that is required to experience the most benefit. Although there is no exact science as to what is optimal, thirty minutes per day of formal meditation practice is a good yardstick.

Although mindfulness sounds simple enough, in practice, at least initially, it is quite difficult and for many it can take discipline, motivation and time to develop a new positive habit. With perseverance however, you will soon discover that the benefits of regular mindfulness practice far outweigh habitual unawareness and the rollercoaster of stress reactivity.

As you integrate mindfulness into your life, you soon begin to experience mindfulness practice as a compassionate act of self-care, rather than a chore that gets in the way of your busy life. With this understanding, practice becomes filled with meaning and can become truly transformative.

No doubt suffering poor mental health can be hugely disempowering. Looking after your own wellbeing through mindfulness practice is a way of rediscovering the peace that is at the core your being. And because mindfulness is not dependent upon external circumstances, it is effective even in the most outwardly stressful moments.

Given the highly charged and unpredictable nature of legal practice, mindfulness therefore is invaluable. As more and more of us are discovering, mindfulness is a core resource that not only makes us healthier, but also makes us better lawyers.

If you would like to learn more about mindfulness, Joel Orenstein regularly runs workshops for lawyers. Contact him for advice. There are also useful phone apps to get you started and sessions with various other institutes around your cities.


This is an edited version of an article published recently in the Victorian Bar News.

Who do lawyers work for?

by Mike Wells

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Who do Lawyers work for? 5 points if you answered “the firm” or similar. 10 points if you said “the Court” (as in ‘Lawyers being Officers of the Court’). Extra extra bonus points if you said “our client”.

It has struck me on a few occasions recently that the client seems to have dropped off the radar of some lawyers. To me, this is akin to the television show “Yes, Minister” where the comment was made (inter alia) that it would be easier to run a hospital if only they weren’t full of patients…

What prompted me to think about this topic was a recent article published through the Law Institute of Victoria’s Young Lawyers section about dealing with difficult clients. The article gave helpful hints and advice about “what to do when you have a difficult client”. Advice and tips included: keeping detailed file notes; being clear in your communications; knowing that it is permissible to terminate the lawyer-client relationship; recognising that it is possible to ask a colleague to take over the conduct of the client’s file….All helpful advice – up to a point. However, what was missing was reference to the client’s experience and perspective – after all, whether our clients are good, bad, difficult or indifferent, they are our clients. Aren’t they??

The LIV YLS article reminded me of a recent seminar I attended where a Mediator was invited to give a talk to lawyers about what he did and why lawyers should look at Mediation as a genuine option to assist in dispute resolution. This Mediator then began to list several quite reasonable reasons about why Mediation should be attractive to lawyers. For example, he said:  Mediation should not be seen as a vehicle that can cause the loss of clients and fees, but rather one that can, through high turnover, result in a greater number of clients who can have their issues resolved and sorted. There were several other “benefits” of Mediation espoused by this fellow, but, interestingly and perhaps a little disappointingly, not a word about how Mediation can be good for clients, or, indeed, why Lawyers should even give any thought to looking at Mediation as an option to avoid litigation from the clients’ perspective. Do we really not care about our clients’ wellbeing??

I think we would all agree that in some way, most of our clients are experiencing stress and pressure. Some just cope with it better than others – funnily enough, just like us Lawyers!

As a Collaborative Family Lawyer, my experience of clients is that they are often having to rely heavily on their Lawyers and that they are often under extreme levels of stress and pressure. This is fairly typical in the area of Family Law, where a Lawyer is often expected by their client to be a counsellor, financial advisor, children’s expert, shoulder-to-cry-on, and more.

As a collaborative Family Lawyer, I think what also needs to be kept in mind is that clients with whom we work and who rely on lawyers heavily (at times) are often under extreme levels of stress and pressure.

Wider than just the area of Family law, we can assume that our clients are under stress and pressure that is not always able to be confined to their legal situation, so not only remembering to assist your client to separate the legal and non-legal issues but, ideally, to recommend them options (such as counselling, amongst others) to help with the non-legal issues often helps the client cope with the entire situation better.

I also think part of a lawyer’s role is to not add to the client’s stress. What I am saying here is, in effect, that we should remember to try to see things from our client’s perspective – I have found this helpful to sometimes explain and assist me to address situations of dissonance between a client’s instructions / thoughts and my advice.

I think it is also helpful to remember that we as lawyers are often only hearing 1/2 of the story. Where possible I believe it is helpful to bear this in mind and to try and engage, when possible, with the other lawyer to see whether there can be information / insights shared that can better assist the clients by potentially reducing the number of things in apparent dispute. I acknowledge this is far easier to do when in a Collaboration!

Remember, what will inevitably make a ‘difficult’ client ‘less difficult’ is a resolution of their dispute. Thus, looking for opportunities for meaningful alternative dispute resolution (mediation, collaboration etc) can often fast track the end of your relationship with your so-called ‘difficult’ client. So, I think it is very helpful, if, somewhere amidst the time recording, budget pressures, networking, learning, long hours, and all the other demands that we lawyers typically experience each day, that we are indeed working for our clients and they need us as much as we need them.

*Updated on 2/6/2014

Becoming Unstuck

by Joel Orenstein

becoming unstuck

Whilst recently waiting for a matter to get before a Magistrate, I bumped into an old friend from Uni days. He looked up at me and smiled, happy to recognize someone from a different time. Despite the smile, he looked completely drained.

Over a coffee he said that he was feeling exhausted and stuck. He shared that he had been working 12-hour days and visiting clients in custody on weekends in an effort to keep up. Despite all the hours he was putting in, he felt undervalued and unsupported by his employer and said that the morale at work was terrible. He also felt pressure from his wife and guilt at not being around for his daughter, which just added to the resentment he was feeling.

Over the last 12 months he had been desperately trying to find a new job. He explained that although he’d gotten a few interviews, nothing had eventuated. Either he was rejected or positions were withdrawn because of “no suitable applicants”. He said that he had also started applying for non-law jobs, thinking he might try teaching, but again nothing was presenting. Feeling unable to stay where he was, and at the same time unable to find something else, he felt completely trapped.

I sympathized with his position. I well remember being stuck in a similar situation that I knew was no good for me, yet at the same time feeling trapped as if tethered by a leg-iron. I recall the sickening anxiety that comes with stuckness – like being a blowfly in a jar, buzzing around and around banging its head against the glass desperately trying to find a way out.

I shared that looking back, what I had experienced externally was simply a manifestation of a deep emotional stuckness that was underlying my inability to move forward or back. The more I wanted out and tried to control my outer circumstances by force of will, the more stuck I became. Trying to control my situation was simply feeding the anxiety and plunging me into depression.

The problem that we have when we are feeling stuck is that we are convinced that we can work it all out in our heads. We are absolutely sure that the problem is that we just haven’t thought enough about it and we need to think some more. We buzz around looking for a way out and get more and more wound up, and more and more stuck. The result can be extremely debilitating. At the same time we cannot force our way out of stuckness – it may change our external circumstances, but guaranteed that without embracing the underlying emotional content, we soon find that familiar constricted feeling returning.

Yet it is actually when we let go of the effort of coming up with a solution and relax – when we stop thinking – that we get some clarity. Choices become a lot clearer and flow naturally. It seems that the more we try to force it with our thinking, the farther away we get from truth. Paradoxically, the more we open to our experience, the more in tune we are to our own innate wisdom. It is in this space that things naturally shift and at the same time emotional healing can take place.

Even with this understanding, we soon learn that relaxing is easier said than done, particularly if we are so habituated to the opposite. When we are stuck we can become so tense about needing to relax, we just wind ourselves up even tighter. The problem is that we approach relaxation as another thing on the list to do or fix, and only succeed in creating more tension.

Relaxation is a complete letting go – it is not doing. Imagine the freedom in that!

Getting unstuck requires enormous kindness. With patience and compassion for ourselves, we say stop and allow acceptance to flow over and through us. We make peace with ourselves and embrace the entirety of our being. Letting go of needing to be anyplace else but right here and now, we can allow ourselves to feel our anxiety and frustration, to hold it with an open and welcoming heart. This will naturally allow our emotional stuckness to shift. In so doing, we stop trying to change the external to fix how we are feeling, which is what has got us stuck in the first place. As we open our eyes with peace to what is actually here, things shift of their own accord.

The irony is that we no longer have any need for them to do so.

Litigation and ADR – a marriage of convenience?

by Mike Wells 

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Hi everyone.

This is my first blog with newylawyerlanguage, and I am looking forward to the opportunity to interact with you and share my thoughts and experiences as a lawyer who has chosen to not go to court any longer.

So, on the topic of ‘not going to court’, it makes sense to me to begin with a blog that acknowledges just how difficult it is to be a lawyer who juggles the demands of both a litigation and ADR practice in the area of family law (and elsewhere). To my mind it is very difficult to do either at a high level, but both at the same time??

Now the bad news: This blog does not contain “the answer” about how to succeed simultaneously at litigation whilst embracing the philosophy and practice of ADR.

Rather, a starting point is a rhetorical question: How does a lawyer, and particularly a relatively new one, manage to gain the respect of, and get noticed by, the managing partners of their firm? Especially if they are not completely (more or less) focussed on achieving and, let’s face it, exceeding their budget, and showing they are learning the ropes about being a more-than-competent litigation lawyer. Sure, you can do some pro-bono work, and arrive early and finish late, but one thing (or maybe more?) will help you stand out from the crowd – bringing in and running files with many zero’s, and being able to litigate effectively.

By comparison, to kick goals (as it were) within ADR requires you to successfully engage your client (and “opponent”!) in a framework and mindset of mediation / collaboration (etc) and, importantly, to find an agreed ADR process that can resolve the dispute entirely (i.e. before Trial / Final Hearing).

Hmmm, what a contrast.

We know that for a variety of reasons, ADR approaches to conflict resolution seem to be ever increasing in ’popularity’ amongst clients. To me, this is not surprising given that, at least anecdotally, the public are aware of the costs of litigation (financial and otherwise). Everyone seems to be aware of a cost-benefit analysis nowadays and, especially in family law, I say that litigation fails this test in most family situations.

Whereas, ADR can often assist to not terminally damage an ongoing working relationship (i.e. where children are involved) by emphasising meaningful dialogue between the parties and identifying areas of commonality, to which later agreements can be attached. More than that, clients are aware that ADR provides an opportunity to have control over their own destiny: the timing of the ADR; the scope of things to be discussed; the cost; and, a properly delivered ADR process can capture more than just the legalities of the situation – I am sure we have all seen and heard clients raising these types of issues that in litigation must be brushed aside. ADR has the ability to be more open to embracing legal and other complicating factors…

So with this in mind, one can begin to appreciate that with such different methodology and aims, working as a lawyer in these contrasting areas can be very difficult.

Perhaps my main thought when writing this blog was to acknowledge and give some air time to the difficulties in working in such disparate areas as a lawyer – Collaboration is particularly difficult, which is on the spectrum of ADR, but more advanced than mediation. In Collaboration the differences in lawyer “style” are more exaggerated.

To illustrate my point about the challenge to young (and old!) lawyers when attempting to genuinely embrace a different way to working than litigation, here is a list of the more notable techniques and methodology that come to mind when I am working as a collaborative lawyer (in a family law situation):

  1. Engaging in open, honest and transparent communication with the other lawyer – sharing your client’s instructions to the extent that it is helpful for each party (and their lawyer) to know the aims, worries, aspirations, plans and so forth. Not to mention that non-legal issues may well need to be heard, acknowledged, demonstrably understood and taken into account.
  2. Working closely with neutral psychologists (known as a ‘family professional’ – usually the professional who is most able to tap into communication problems and so on), as well as a neutral child expert and neutral financial professional. These personnel are equal collaborative team members who meet regularly through a collaborative process to debrief, share their thoughts, concerns, ideas and information so as to collectively help BOTH clients reach their stated aims and address each person’s needs that have been clearly identified at the outset and that are known to all.
  3. Coaching your client to see the other person’s perspective, as much as it might be in contrast to their own values or beliefs, because without doing so outcomes that can endure are probably never going to be reached. Ever heard a client say “I just want my day on court”? Well, in Collaboration the importance of clients “being heard” (and acknowledged by the other person and taken into account when decisions are being arrived at) is a primary consideration.
  4. Don’t give your client advice about what they’re entitled to. To do so will entrench in their mind a position (akin to litigation) that they will be likely to forever remember and measure success/failure on it, at the expense of the more holistic and broader aims of the process. One aim is, for example, to have an outcome that can endure.  Another aim though is for the parties to have acquired and refined skills, abilities and insights (with the assistance of the lawyers and other neutral professionals), including about the conflict with the other person, so that future conflict can be more easily avoided or overcome. This pretty much says it all. In Collaboration lawyers don’t ignore the law, but they intentionally make sure that it does not get “in the way” of the bigger picture.
  5. Agree at the outset that no party will make unilateral decisions or threaten to take the other person to court. In fact all parties to the Collaboration sign a contract to this effect.

So, I suppose the learning from this blog is don’t be too hard on yourself as a new or relatively new lawyer if you are having difficulty embracing, let alone actually being, a lawyer working in a litigation practice that is striving (even only in their own mind) towards ADR. But the rewards are (I believe) self-evident – ADR is the future as I see it because it focuses a lawyer’s mind to not only think of today, but also tomorrow…

In the future, I envisage my blogs will cover topics such as: working as a lawyer in emotionally charged environments; being a sole practitioner; building rapport with clients; working as a lawyer in roundtable dispute management (RDM); entering legal practice when you are in your 30’s; insights into interdisciplinary collaborative team practice; and others…

Cheerio for now, Mike

The Model Litigant

by Benjamin de Santis

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Like all legal practitioners, I’ve been schooled and counselled throughout my academic career by my university lecturers to adhere to the vast array of ethical obligations and duties demanded by our chosen profession.

Naturally, discussion of any such obligations and duties generally centred on the Professional Conduct and Practice Rules 2005 for Solicitors and/or the Victorian Bar Practice Rules 2009 for Barristers; however, rarely can I recall any substantive discussion regarding the obligations imposed on government lawyers. 

In order to correct the balance somewhat I thought it might be useful to blog about what it means to be a government lawyer – and especially a model litigant.

Section 55ZF of the Judiciary Act 1903 (Cth) confers power on the Attorney-General to issue Legal Service Directions. The Legal Services Directions 2005 impose an obligation on all government lawyers to act with ‘complete propriety and in accordance with the highest professional standards as a model litigant’.1

The nature of these obligations are expounded in Appendix B of the Legal Services Directions 2005; which include, but are not limited to:

  • Full compliance with the relevant rules, practice notes and directions issued by the various courts and tribunals;

  • Responsibilities under the Financial Management and Accountability Act 1997 (Cth) to promote the efficient, effective and ethical use of Commonwealth resources;

  • Initiating (or defending) an action only after careful consideration of whether the dispute could be resolved by way of Alternative Dispute Resolution processes;

  • Promptly dealing with claims and not causing unnecessary delay;

  • Handling cases in a consistent manner;

  • Not taking advantage of claimants without the resources to litigate;

  • Not pursuing appeals without a reasonable prospect of success (unless in the broader public interest); and

  • Apologising where the Commonwealth or its representatives have acted wrongly or improperly.

The common law also reinforces the model litigant concept in holding a long-standing expectation that the Crown, as a party to litigation, has a duty to observe a standard of fair play and exhibit the highest standards in dealing with its subjects.23

Interestingly, the concept also appears to transcend Australian jurisprudence, with the United States Supreme Court opining that a lawyer appearing for the government is ‘the representative not of any ordinary party to a controversy … and whose interest … is not that it shall win the case, but that justice shall be done.’4

In light of the model litigant obligations, it may sound to some that a government lawyer is somewhat constrained and perhaps even more likely to be less effective than their private counterparts; however, it is also important to note that the model litigant obligations do not prevent the taking of legitimate steps to pursue, test, or defend legal claims.5

The fundamental purpose of the model litigant obligations, in my view, is to ensure that government lawyers act fairly and to the highest standards in performing their fundamental task: to administer the law and safeguard public revenue, programs, services and infrastructure that benefit us all.

In my own experience, the model litigant obligations have greatly assisted in the promotion of good decision-making, effective case management and efficient use of scarce resources; and ensures that not only do I act passionately on behalf of my client, but with a clear conscience too.


1 See note 2 to Appendix B of the Legal Services Directions 2005

2Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333, 342 (Griffith CJ).

3Thomas v Mowbray (2007) 233 CLR 307, 399 [260] (Kirby J)

4Berger v United States 295 US 78, 88 (Sutherland J) (1935)

5See note 4 to Appendix B of the Legal Services Directions 2005

Benjamin de Santis is a government lawyer currently working with the Australian Taxation Office.

The Path of Wisdom

by Joel Orenstein

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Wisdom has become an overlooked virtue in modern life. Although we innately value wisdom – we want to make wise choices and find the right answers to our questions – there is little public discourse of the central importance of the development of wisdom, both for our own personal wellbeing and the wellbeing of society as a whole.

Our obsession with achieving and acquiring has led to the loss of perspective and understanding, often resulting in complete craziness in the way we live and interact with others and our environment. The way lawyers work and the resultant mental health crisis within the legal profession is an example of this. And even though the world is screaming out for us to exercise wisdom, our lack of emphasis on the importance of wisdom has meant that oftentimes we simply lack the resources to make wise choices.

Certainly there was no emphasis on the development of wisdom throughout my formal studies, which centred on intellectual understanding of concepts and fostering a certain way of critical thinking. Upon reflection, although I learnt to “think like a lawyer”, I was completely under-resourced to deal with the realities of legal practice, which required an emotional maturity and understanding – both of myself and those that I was coming into contact with.

When I started my career I spent a lot of time worrying over my place in the scheme of things, asking myself where I was going and always trying to come up with the right answer. This inevitably led to angst and mental anguish, especially when what I wanted in my mind was not in alignment to what was presenting in reality.

Eventually, through sheer exhaustion, I started on the path of wisdom. I began to practice simple acceptance of my situation and environment, no matter what was presenting. When joy would arise, I would allow myself to be with that. When fear and anxiety would arise, I would consciously lean into the experience with compassion and non-judgement. With persistence and courage, I began to allow myself to be just as I was, and through this process, healing and transformation would take place. This brought greater understanding and better balance and clarity, resulting in a discerning wisdom in recognizing opportunities and making choices.

My experience has been that to be happy and successful in the law, it is absolutely invaluable to emphasize the development of inner resources that lead to wisdom. It is extremely important in achieving good legal outcomes, and is more important in terms of life satisfaction than the actual work you are doing, your employer, your work environment, how much you are getting paid, etc. This is because with wisdom, you will be able to manage anything and everything that life throws at you. The rest, I have discovered, will look after itself.

So how do you develop wisdom? Start by allowing yourself to be exactly as you are, without judgement or criticism. Be completely honest with your experience and open your eyes, ears and heart to the truth of each moment. Be kind to yourself and generous with others. Acknowledge your painful moments, not as weaknesses, but as a reflection of your humanity. Laugh when you need to laugh, and cry when you need to cry.

It is true that the stresses of professional life often make us want out. Yet with all its challenges and pressures, work is the perfect place to start developing wisdom. Instead of worrying about each day and its challenges, approach the ups and downs of life as golden opportunities to develop understanding and insight. Let this be the focus and you will transform your career in law into the path of wisdom, which is the most precious gift you can give to yourself, and to the world.


by Pamela Taylor-Barnett

gobledygook picture

“Oh, you just need to write out the cheques to pay the bills,” they said. “It’s easy,” they said. Well. Well. Well. This was a year ago, when I signed up enthusiastically for the treasurer role at my daughter’s kindergarten. And would you believe, as of the AGM a couple of weeks ago, I’m treasurer for 2014 too? Something about not being able to say ‘no,’ I suppose… and a topic for another day.

I bumbled my way through this role this last year – with my pigeon hole being the only one that is never empty. I even took on extra non-treasurer tasks, like re-writing the whole constitution. But I digress, I want to tell you about how I ended up at an accountant. I asked the committee to approve an audit, which they did. Suffice it to say, I now have a greater appreciation for the frustration that some lawyers’ clients must feel.

I dropped in to collect the audit; it didn’t include the commentary yet, just the financial reports and an official certificate-thing saying that they approved of the 2013 books (Whew!). They handed it to me, without explanation, like it’s all so obvious. So, there I sat, in my car, giving it a quick skim over. I had questions. How did they arrive at that figure? And that one? And that one?! So, I hopped out of my car and went back in. An accountant, who I had not met before but appeared quite experienced, explained some things to me – but mostly I was confused.

I went away, feeling silly. Then I went back. And went away and came back again. My accountant (the young grad) tried to explain something to me – in big words like ‘carried forward,’ ‘receivable’, and ‘accrual’. I had a pounding headache and needed simple and clear words. It felt like gobbledygook was drivelling out his mouth. And the worst part? The more I tried to concentrate on working out what he was saying, the more lost I got. The more lost I got, the more stressed I became about being lost. It was cyclic. And I needed to understand the answers for the AGM that night. Yeek.

And I still don’t fully understand, so I’m waiting for his written report to shed some light on it for me. Here’s the thing. He was talking in ‘Accountantese’, much like our ‘legalese’. Clearly, it was obvious to him. I was not surprised with the experienced accountant slipping into these bad habits but I thought that maybe the young grad would have been through business school with ‘plain English’ shovelled at him by wheelbarrow loads, like most emerging lawyers are these days. I thought that when I said ‘sorry, it just doesn’t make sense in the Pamela brain!’ that he may have said it in a different way, rather than repeating the same thing again. But he didn’t.

Why didn’t he say it differently? In fact, the sooner he could make it ‘make sense in the Pamela brain’, the sooner he could get this crazy nagging woman out of his office and get back to work! It was to his advantage to articulate it clearly.

What do I think that he, and his senior needed to do? I think they needed to ask some non-money-minded people (who love them enough to tolerate their accountant nerd-factor) a pop-quiz of some common accounting phrases. They need to work out which words aren’t in everyday language. And then they need to work out how to explain the concepts – with all those usual words being banned from their vocabulary. I think they need to reflect, and ask themselves how often these words are used in everyday language. I think they need to ask their client (me) to explain it back to them to see that the client fully understood, and they need to pause and think before they spoke, to work out the clearest explanation.

Lawyers must do the same. It’s the fastest way to get the crazy nagging woman out of your office, and the best way to make sure she comes back.


by Peggy Kerdo

grand canyon

(For all social justice lawyers out there, especially Gemma, who is just starting out)

Last week, I realised with a shock that my inspiration had run out.

As I reflect, I can see that the years of working with people from disadvantaged backgrounds must have worn me down more than I thought. I sit and worry whether I will really ever make a dent in the injustice. I forget what I have done. I forget the people whose lives I have touched. I can’t see that I have made anything really different. I can only see the prejudice, cruelty and rigidity of systems that crush those that are unlucky enough to stumble in the way.

Add to all this a winter-full of flu, some work related unpleasantness, and some pretty intense realisations about myself via my meditation practice, and I can see that my intense introversion over the last six months has been quite an appropriate thing to do.

Then, last week whilst I was on a few weeks leave, I watched an amazing YouTube recording of a conversation between two people I admire commemorating another hero of mine. I was so inspired and filled with energy that I realised with surprise and dismay, how completely uninspired and exhausted I had been.

This conversation reminded me why I chose to become a lawyer. It reminded me that we can only do what we can do to make a difference, within our own capacity and capabilities. Whether we are recognised or not, doesn’t matter. Whether we are able to assist one person or a thousand, doesn’t matter. Whether people condemn us for the work, doesn’t matter. What matters is to keep going, to remember why we do this.

But how? How do we keep going? How can we stay inspired?

I found that there are a couple of things that all need to come together for me to answer these questions:

  1. Get enough sleep. Seriously.
    My partner was diagnosed with chronic sleep apnoea this year, but I hadn’t realised that I had also indirectly become sleep deprived. Sleeping soundly and deeply gave me relief, concentration and focus;

  3. If you are exhausted over a long period of time, get a medical check up. After a routine health check, my doctor rang me to say that I was dangerously low in vitamin D. Taking the supplements relieved the desperate tiredness I had been feeling;

  5. Make time to take a COMPLETE stop from work every now and then. And I mean complete. You MUST rest, even if you feel guilty, even if you feel it isn’t really that bad. An athlete is not running all the time: resting time is essential for the body to heal and grow stronger. Same with us.
    So – no checking emails; no reading books that would inform your work; no watching movies or documentaries that relate to or inform your work; no talking about work. A TOTAL break. Set a time – a week is OK; two weeks is good; three weeks or beyond is brilliant. Make sure that you allow for the time it takes to wind down from work. I found that engaging in some sort of creative exercise really helps the brain to make the transition from work to recuperation and restoration time; for example, knitting or crochet, sewing, woodwork, baking, pottery, drawing (even the blokes – I understand crochet is quite the Hipster thing for men to do these days). Give it a go.

  7. Then, when your down time is over, if this work is still what you want to do, connect with someone who inspires you, be it through reading or watching a video or documentary. Even watching a movie like To Kill a Mockingbird or Twelve Angry Men (A Man for All Seasons gets me every time). Whatever kindles the fire in your belly.

  9. Remember why you wanted to be a lawyer. Jump in again. Stronger. Clearer. Determined.

  11. Keep taking your vitamins. Make sure you are really resting when you rest. Meditate. And set your next complete stop time.

The work of a social justice lawyer takes a toll on those who choose to work in this area. It affects our view of the world – we see so much tragedy. It affects our relationships – sometimes there is nothing left at the end of the day. And it affects our hope – there is so much ugliness.

Rest. Recover. Reconnect with your inspiration. Go.
[Postscript: The video I watched was a conversation between Judith Butler and Cornell West on the 10th anniversary of the death of Edward Said. My thanks to Max Kay for alerting me to this wonderful recording – which I will watch again, this time taking many, many notes].

Peggy Kerdo is a solicitor and lecturer at La Trobe Law School. Peggy is also currently a PhD candidate. Prior to her work at La Trobe Law School, Peggy was employed by Victoria Legal Aid in the field of human rights law, specifically in the areas of refugee and immigration law and mental health law. Peggy has also advocated on behalf of marginalised and disadvantaged members of the community and is passionate about access to justice. Her teaching focuses on clinical legal education, emotional intelligence and law reform issues that arise at the limits of the law.