Michael McGarvie

Image - Michael McGarvie

What are your passions outside of the law?
Gardening, plant propagation, landscape design, cycling and renewable energy. I have just had 16 storage batteries and solar panels fitted to my home so the day’s sun comes out of the batteries at night.

If you had your time again, would you choose to practice in law? If not, what else would you choose to do?
Yes, definitely. I was talked out of Archaeology as a career by a wise Professor of Archaeology at Melbourne University when I wanted to switch after 2nd year Law. He said, Archaeology would not support a married life and a mortgage in the same way Law would! I stuck it out and loved every minute of being a solicitor for 23 years, and then a public sector CEO in courts and legal regulation for the last 9 years. Law offers so much human contact and community influence, allowing you to advise and assist people by generally knowing how to get things done.

What was the single moment, case or event that you feel defined you as a lawyer?
Winning a hard fought, impossibly difficult, but truly deserving case against the Commonwealth for a client. It was called the Australia Post case. My client was shot by the deranged gunman, Frank Vitkovic, during what became known as the Queen Street massacre in 1987. John Dyrac survived being shot in the neck and shoulder at point blank range by an M1 Carbine when he opened the door for the gunman. The floor was bullet-proof because Australia Post held $250,000 of collectable (and steal-able) stamps, but had ceased using the security equipment properly. It was a hard case to win because the law was ill-defined about whether an employer was liable for the movements of a madman with a gun, even if the employer planned for gun invasion in their workplace. The Supreme Court jury upheld the negligence action against the employer after a two week, highly publicised trial. This defined me because it involved me and my firm taking a big risk in a controversial case for a client who could never have personally afforded to bring it to court, and involved success in a case many people thought would fail.

If you could only give one bit of advice to new lawyers, what would it be?
Accept that whatever your experience, clients will give a lawyer a free gift of trust when first appointing them. That gift is yours to lose by a number of simple means: lying, misleading, fudging, over-promising, under-performing and the super-human complex. The super-human complex is feeling your client expects you to know and do everything for them. You need to reduce or change your client’s expectations about what you can and can’t do for them at the outset of the relationship. Don’t do legal work for clients that is beyond your knowledge and understanding. Refer or get help. Your client will respect you for doing this because they will see you are acting to protect their interests.

What makes a lawyer a great lawyer?
Knowing the importance of servicing and communicating with your client. Great “bedside manner” is valuable. Remaining humble and conscious of the community role every lawyer plays as an officer appointed by the Court, with a primary duty to the Court, but then to represent the interests of their client to the best of their training and ability.

What would you say are the hazards of this profession?
Conflicts of interest between clients’ interests and fee budgets. Stress and anxiety in the working life of a lawyer causing performance, conduct and health issues.

What are your hopes for our profession?
That it continues to meet its own very high standards of ethical conduct, trustworthiness and fairness. Also, that it shifts to a fully national uniform regulatory scheme.

Michael was appointed as the Commissioner and Board CEO in December 2009. Prior to this Michael was the CEO of the Supreme Court of Victoria for three years. He practised as a solicitor at Holding Redlich for 23 years where he specialised in personal injuries, civil litigation and dispute resolution. Michael is a Graduate of the Australian Institute of Company Directors and is also a graduate in strategic management of regulatory and enforcement agencies from the John Kennedy School of Government, Harvard.

Workplace Infidelity – the Acceptable Affair.

Look, I don’t hold myself out to be an expert on these matters but usually when people marry, they intend for their marriage to last forever. We don’t expect the bride and/or groom to recite their vows promising to be true for better, for worse, for richer, for poor, in sickness and in health – well, at least until they get a better offer!” If that were the case, it would be hardly worth the effort would it? I ask this almost (but not quite) rhetorically. With divorce rates as they are, one could be forgiven for being cynical about some people’s motivations to marry, or at least cynical of any realistic appraisal of their own capacity to actually remain in a marriage.

But I digress.

We are I believe – in spirit anyway – a faithful or, at least, fearful species. We need to have some belief that our current situation will last, or else we feel too insecure to go about the business of living. We depend on a feeling of permanency in order to relax and get the job done. I’m not being critical of this by the way. I think it’s incredibly important. People who constantly worry that the sky is going to fall in on them are not terribly productive people. Unless they are in the workplace. The workplace is a very different creature to marriage and here is why.

I think it is accepted now that almost all of us will have many jobs in our lifetime. There is always the odd Gina Reinhardt but, heiresses aside, most of us will seek out various positions over the course of a career, or, indeed, be sought out for various positions. So it follows that every time we start a new job we need to be conscious of the fact that it is unlikely to be a marriage made in heaven; even if it feels like that to begin with. In short, we are in it for a good time not a long time.

This is worth pointing out because I mentor a lot of new lawyers – many of whom happily state that they will never leave their current workplace; they are far too happy where they are. These new lawyers are in the honeymoon period of their employment sure, but they truly believe what they are saying. This is lovely. But also a little misguided and it can actually operate to their detriment.

If you are in a reasonably secure workplace, I’m afraid you still need to reserve a small corner of your heart for the inevitable prospect of infidelity. More than that, I would advise you to make it your mission to look around – are their other positions in other organisations that catch your eye? Great! Then work towards those positions by utilizing the training opportunities in your current workplace. Keep in mind you need to be completely on top of your own professional development in order to be competitive in the marketplace; not just in the broader marketplace, but also in the smaller marketplace, i.e. within the organization in which you work. Are you happy where you are right now? Great! But don’t stop up-skilling, networking or looking around generally. To do so would just be to ignore the reality of the modern workplace.

“What about loyalty to my employer?” I hear you ask. Loyalty to your employer is absolutely critical but it doesn’t involve a commitment to ‘everafter’. Loyalty to your employer only requires that you be thoroughly engaged in your work, the organization’s ethos, and your own professional development whilst you are in their employ.

So how do you make sure you are eminently employable at all times no matter whose employ you are in? I advise all new lawyers (all lawyers actually) to engage in the following 6 core activities as a minimum:

  1. Create a LinkedIn account if you do not already have one. LinkedIn allows you to essentially have your curriculum vitae on-line for prospective employers to see. You can add to your CV as you go which keeps it current. Record all of your achievements. Add links to any articles you publish. Ask people to endorse you for various skills.
  2. Establish some sort of on-line presence. To be eminently employable you need to stand out from the crowd in some way. You can utilize LinkedIn for an on-line presence too but you can also blog or twitter, publish informative articles online or contribute to websites that cover your areas of interest.
  3. Specialise if you can. You ultimately want to be the ‘go to’ person on a particular topic, area of law or for a particular valued skill.
  4. Network. Network. Network. Never stop networking. Network outside of your organization too.
  5. Be involved in something greater than your immediate job; whether this means joining an advisory committee within the institution you work in but not necessarily related to your position, or sitting as a board member of another organization.
  6. Constantly develop yourself. You need to do 10 points of Continuing Legal Education each year. Double that. Or triple it. Don’t see yourself as someone who does the bare minimum to develop professionally. Being in an organisation puts you in a unique position to actively increase your skill sets via training and attendance at conferences (free) whilst still undertaking the work you are paid to do.

These activities will make you eminently employable at all times. And, the advantage is that it keeps your employer pretty keen on you too. Don’t you worry – they’re watching you – and the more you stand out as being thoroughly engaged, devoted to your professional development, capable of networking and, essentially, making their organisation look good, the more they will work to find creative ways to keep you there. This potentially means more money, more perks and a greater variety of work on offer.

That being said, don’t be surprised if you leave anyway. Even in the best of marriages, sometimes, one person feels that there is a different journey out there for them and that their lives will somehow not be complete unless they pursue it. In the workplace context, other journeys are inevitable as you develop and grow. And whilst potentially fatal to a marriage, different journeys are actually a healthy and sustainable part of every career.

Katie Miller

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What are your passions outside of the law?

Footy and having an opinion. I’m a tragic Western Bulldogs supporter and attend as many games as I can, including interstate games. Footy is a fantastic contrast to the law. As a lawyer, I need to be rational, logical and aware of how I am perceived by clients, the judiciary and my peers. At the footy, I can be loud and completely irrational – I firmly believe that what I wear and where I sit can influence the outcome of the game! I have an opinion about everything – from daylight savings to the state of transport planning in Australia to the appropriateness of buying cherries out of season.

If you had your time again, would you choose to practice in law? If not, what else would you choose to do?

I would still practise law, but I would do it a little bit differently. I like to think I would take a more proactive approach to planning my career. I would have started expanding my non-legal skills sooner – things like mediation, marketing and technology. But I can’t imagine another profession or role which would combine as well as law does my need for intellectual stimulation, my desire to work in the public interest and my enjoyment in working as part of a profession with shared values and common interests.

If you could only give one bit of advice to new lawyers, what would it be?

Only you are responsible for your career but there is lots of help along the way! Identify what sort of lawyer you want to be and then figure out what you need to do to get there. Ask for help along the way and recognise that what you want and who can help you will change as you develop and grow as a lawyer. Don’t wait until you are unhappy to make changes in your career.

What would you say are the hazards of this profession?

The risks to your mental health from being a lawyer are well known. Every lawyer needs to treat it as an occupational health and safety risk inherent to the job. We can manage and mitigate the risk, but we shouldn’t ignore it.
When I feel myself getting ‘the mental sniffles’, I do something about it before it becomes a big problem. Mental sniffles takes different forms in different people – for me, the symptoms are being overly tired for days at a time; snapping at my family at home; and limiting my focus to the things I absolutely have to do just to get through the day. Like a cold, sometimes the mental sniffles will fix itself with some early nights or a quiet weekend. But sometimes I do need to take a day off and rest – just like I do with a cold or a case of ‘debilitating man flu’. Taking a day off for mental health doesn’t mean you have a ‘mental condition’ – just like having a day off for a cold or the flu doesn’t mean you are going to die or need to be hospitalised. It’s just about looking after yourself and letting your body recover.

How do you balance life and work?

As President of the LIV this year, I’m not! But there are still things I do to ensure that I have ‘me’ time. Scheduling ‘me’ time in my diary ensures that it has the same priority as other immoveable appointments, like a client meeting or a court hearing. For example, I have a regular gym class and try to exercise each morning; the footy fixture is sacrosanct; and Sunday night is family roast night. I also try to avoid social media use in bed (mornings and nights) – being on social media 16 hours a day should be enough for any person!

What will the legal profession look like in twenty five years time?

The pace of change in the legal profession is going to be so fast over the next few decades that I don’t have a good picture of what the legal profession will look like in 25 years.
I do have a clear picture of what I think it will be like in 10 years. The legal profession will be dominated by the very big and the very small – large, global firms providing wrap-around services (legal and non-legal) for clients at one end of the spectrum; niche, specialised, flexible sole practitioners at the other end of the spectrum. Lawyers will have harnessed technology to do more of the work we don’t like (I’ve never met a lawyer who actually likes discovery), leaving us with more time to focus on lawyering as a creative endeavour – things like problem solving, strategising and business advice. Technology will also allow lawyers to make money while we sleep, i.e. clients will be able to access legal services using software designed by lawyers, so lawyers will no longer be limited by the billable hour.

How can one distinguish themselves as a legal professional?

Identify what you do that no one else does as well as you and do it to the best of your ability. It might be a legal skill, like advocacy or writing contracts. Or it could be a non-legal skill – you might be an engaging presenter, a plain English communicator or have incredibly high emotional intelligence. The trick is to find a way of using those skills in a way that enhances how you deliver legal services to clients.

Katie Miller is the 2015 President of the Law Institute of Victoria and is the first government lawyer to be president. Katie is an LIV Accredited Specialisation in Administrative Law. As president, Katie is supporting lawyers to evolve their practices so they can survive and thrive into the future.

What Kind of Professional Do You Want to Be?

Professional Meditating

by Bernadette Healy

Being a professional new to their career – exciting and nerve-wracking!

Congratulations on being a practitioner in your new career (or if you are a law student on getting as far as you have to date!).   You have probably been so busy getting to this point that you may not have given thought to the question: how do I want to be in this career? 

That is, what kind of lawyer do you want to be, not just in terms of executing your professional obligations as a lawyer but what sort of professional do you want to be?

It may be helpful to think of your new career as a marathon you are about to start rather than a sprint.  For some of you sprinting will be a particular strength and this is definitely the kind of skill required for some of your work.

However treating this career in general as a sprint or a series of sprints may inadvertently lead you to experience burnout.

Although it is common, particularly when a new professional, to view your new career in terms of discrete projects, from a long-term well-being perspective, it will help to keep stepping back and asking yourself about how you are going in terms of an ongoing professional journey.

This means regularly setting aside time to yourself, relaxing and reflecting – asking yourself questions about how you are compared with how you want to be. This will help to avoid your putting too much emphasis on any one outcome – a protective practice in terms of stress and helpful if you tend towards frequent feelings of anxiety and / or tending towards being overly responsible.

Anxiety and responsibility are two of the most common issues that young lawyers face as they are finding their way in their new profession.

Anxiety is a non-specific kind of feeling which is associated with symptoms such as excessive worrying, negative thoughts often including concerns about failure and approval of others and feelings of agitation.

Troubling feelings related to responsibility generally oscillate between taking on too much responsibility and taking on too little with associated feelings of shame and self-criticism

Are these feelings relevant to you or perhaps to a colleague?

It may be a little challenging to be asked to reflect on your feelings when you are most likely highly rational people about to begin your career within a profession where rationality is so greatly prized.  However, feelings are a great source of information – about how we are going relative to our deeply held sense of ourselves – ignore them at your own peril down the track!

You need to be careful not to prematurely judge your own performance as a lawyer (in worse case, deciding to leave when the issue is just the natural one of being new to a professional role).

Perhaps for a very small number it may not turn out to be your career – if so remember that it is not possible to find that out without putting yourself in a position to try; hopefully if this turns out to be the case, you can avoid self-recrimination and any urge to inaccurately conclude that you are a failure when actually you have merely done a necessary bit of career self-correction.

Judging everything in terms of achievement, winning and needing to avoid making mistakes is very common within the legal profession.  The use of judgement and judging while a necessary skill can also be very limiting if it means you are not as engaged in your life as you could be due to a fear of failure.  That is, people who focus only on success tend to avoid putting themselves in the position of being a beginner.  This leads to their ending up with a much reduced repertoire of skills and abilities and experiences than those who are less concerned with trying out something for fear of looking like an idiot or not getting it right the first time.  Ongoing self-criticism and judgement is predictive of both stress and even, poor performance, particularly in terms of a rigidity in problem-solving.

 Staying true to yourself

Try and keep a gentle and warm interest in yourself and who you are; your values and priorities and feelings and how to remain true to that while in your professional role.

Put some rituals in place to ensure that you make a point of separating out work from non-work, for example:

  • Listing questions arising from current work day and leaving them at work ready to be re-visited at the beginning of the next work day.
  • Cycling home.
  • Getting off the tram or train one stop early and walking.
  • Sitting in a park for 5 mins before going home.
  • Doing a 3 min breathing practice on the train home.
  • Asking your partner and family to leave you alone for the first 10-15 mins after you get home.

Do some regular self-reflection.  You could start with the identification of your personal triggers – this could be people, situations or events which cause you to react in a manner which is out of proportion with the situation.

For example you may find yourself being very annoyed with the approach of a colleague and find yourself ruminating on them, their approach, your reaction, the situations you have shared etc.  What may actually be happening is that your colleague has triggered a potential threat to a core belief such as that you must be liked and approved of; that you must be in control; or that you must be included.  If you are not aware of these potential triggers, you are likely to automatically and unthinkingly respond to the situation in an inappropriate and reactionary manner and to attribute to the other that which is really to do with you.

Learning to identify and control personal triggers is vital to ensuring that you know where you and your ‘stuff’ ends and that of others around you begins.  It doesn’t change the situations you face but it will give you a sense of security that you will be ok.

Self-reflective practice can guard against the kind of existential desert that is commonly experienced  by those who have been so busy doing, fixing, controlling and generally just getting on with things that they have omitted to build in regular time for being, reflecting and asking themselves some non-task-focused questions.

Focusing in on your inner life can help to modify the down side of your skill set.  That is, just as it is necessary to know your strengths and build on them and maximize their use, it is also necessary to understand the likely down sides of these strengths.  E.g. the strong individualistic drive and focus that can motivate someone to become a skilled practitioner may also be associated with low tolerance for others’ weaknesses and perhaps even make them a poor team player.  A person with great organizational ability and project management ability may also be associated with an inability to see the role of lateral thinking in problem-solving or perhaps even a reluctance to give time to the use of non-standard problem-solving methods.

So think about the kind of professional you want to be, make a bit of effort to allow yourself space for your own feelings and ideas to bubble up, watch out for your personal triggers and the other side of your strengths and most importantly, do all this with a sense of fun, curiosity and kindness.

 

 

Mind our Words Redux

Speak plainly.

By Dean R P Edwards

It’s not often that an amateur scribe like your humble author receives free, unsolicited advice on his writing. But Mr Robert Angyal of Queen’s Counsel has come to the aid – in this instance – of my Queen’s English!

His tool: Plainglish (“Plain English” for the uninitiated — OK, that’s my term; check out Robert’s earlier post on lawyers’ lexicon). The patient: a blog post of mine and middling quality (I said I was humble) from 19 June 2015, which is republished here, in the left-hand column below.

Wielding with deft precision the fine cut of the scribal scalpel, Robert has trimmed the verbiage from my textually beleaguered post to expose the lean, plain English beneath. As The Bard would have written, “If it were said when ’tis said, then ’twere well it were said plainly.

The challenge: could I make Robert’s translation of English any plainer? The task may be in the offing…

Without further ado, New Lawyer English presents “Mind Our Words Redux, or, Two Variations on a Theme of Plainglish”. Enjoy.

“Mind Your Words”
By Dean Edwards

It might not occur to one, at first thought, that all lawyers are multilingual: we speak English and a very peculiar dialect that, for convenience sake, I call law.Law is as much about rules and procedure as it is about language, and we might take for granted that, besides all of the Old French and Latin jargon, lawyers speak in an English where argument and precision are deliberately reinforced in how we choose words, formulate sentences and speak to others within the legal system.

Our use of language might be by the by in our working lives, but lawyers need to be conscious of not only how language is used, but how it is understood.

This reflective practice is critically important when dealing with clients, the majority of whom live lives in blissful ignorance of the meaning of propounding the contract, or the balancing of probative value and prejudice. There is skill in talking to, and not at or above, the uninitiated.
Technicalities don’t need to be dressed up in nineteenth century turns of phrase to be concise and constructive. (Although lawyers do look sharp in their nineteenth century costumes.) Translation into plain English then is important. And consciously adjusting our language for the layperson has an additional and particularly valuable benefit: we can make our legal language more accessible, clearer and more democratic.

Recently, I had the opportunity to put the above into practice.

Teaching alongside fellow lawyers and legal academics in a program run by Melbourne Free University, I introduced a class of asylum seekers and refugees to core ideas in the theory and practice of law. Our material covered as much ground as a one hour, once a week class can across seven weeks, starting from the basics of law in Australia (how law is made, for instance) to the finer instruments of commercial, criminal and international law.

Classes generally attracted between 20 and 30 students, and there was a team of English tutors as well. Students, the vast majority of whom had no legal background, enjoyed immersing themselves in not only English but the language of the law, made plain and approachable.

Experiences of this kind are crucial, for a general population that deserves access to legal system and an understanding of that system’s workings, and for lawyers. It was equally rewarding and instructive, as we honed our ability to translate law. No small feat when handling a highly technical craft, with its principles and reasoning!

The more reflective we are on our profession, the more we can build a relationship and uphold our responsibility to public.

Translation into Plain English
By Robert Angyal QC

You might not have realised that lawyers speak more than one language. They speak English and, also, a very peculiar dialect of English that I call Law.The law consists of rules and procedures, which must be expressed in precise language. Because of this, when lawyers speak in Law to other lawyers, or make legal arguments, they consciously try to be precise. They choose words and structure sentences with care. Sometimes, they use old French and Latin terms that have specific meanings in Law.

Lawyers must be aware that, while it’s OK to speak Law to other lawyers, non-lawyers might not understand Law.

This awareness is critically important for lawyers when dealing with clients. Most clients don’t speak Law and thus are blissfully ignorant of the meaning of Law phrases like propounding the contract or balancing probative value against prejudice. Because of this, it requires skill to talk to non-Law speakers in terms they can understand.

There are two skills needed to translate Law into plain English: (1) expressing technical ideas concisely and constructively; and (2) (while barristers look sharp in their 19th-century costumes) avoiding dressing up our language in 19th-century turns of phrase. While consciously translating Law for non-lawyers is challenging, it produces a particularly valuable additional benefit: It can make Law itself more clear and thus more accessible to non-lawyers.

I recently had a chance to test whether this theory worked in practice.

Teaching alongside fellow lawyers and legal academics in a program run by Melbourne Free University, I introduced a class of asylum seekers and refugees to core ideas in the theory and practice of law. The classes were an hour long, given weekly for seven weeks. In the time available, we covered as much ground as possible, from basic legal questions (such as how law is made in Australia) to complex concepts of commercial, criminal and international law.

Usually between 20 and 30 students turned up. Very few of them had a legal background. With a team of English tutors to help them, the students enjoyed immersing themselves not only in English but also – once it was made plain and approachable – in the language of the law.

Everyone deserves to understand how the legal system works and to have access to it. So, for non-lawyers, experiences of this sort are very important. The lawyers involved honed our ability to translate Law into English. Given the highly technical principles and reasoning involved, this was no small feat! As a result, the experience was equally instructive and rewarding for us.

The take-away lesson? The more conscious we lawyers are of the need to communicate clearly, the better we can relate to non-lawyers and satisfy our professional duty to the public.

The Honourable Judge Irene Lawson

Photo Biennial conference

When did you know that you wanted to be a lawyer?

My life in the law started serendipitously. I was in the foundation year of a new senior secondary college located in Broadmeadows. Legal Studies was offered as a subject for the first time and I thought it may interest me. This was during the Whitlam years and was at a time of great social change. Legal aid had been introduced as a national scheme and I wanted to find out more about the legal system. I loved the subject and it was the start of a long, interesting and varied career.

If you could only give one bit of advice to new lawyers, what would it be?

Don’t be afraid to take on new challenges. Whenever I have been “stretched” as a lawyer has resulted in gaining greater experience and expertise. Don’t be afraid to ask questions no matter how basic they may be. Legal professionals are generally very supportive of new comers.

What makes a lawyer a great lawyer?

Being honest and reliable. Your integrity is your best asset. It is important to always be frank and honest in your dealings.

What would you say are the hazards of this profession?

Ignoring your life outside the law. It is very easy to get caught up in your work especially when you are involved in trials or long running disputes. Always take time out to pause. Walk, ride a bike, go bush, see a movie, swim or do whatever you can to have a break.

What is your best tip for maintaining sanity in the law?

See above.

What will the legal profession look like in twenty five years time?

There will always be the necessity for people to advocate on behalf of those who do not have the life skills to negotiate life’s complexities. I see the ongoing need for professional advocates who are responsive and clear communicators.

How can one distinguish themselves as a legal professional?

By being open to exploring new challenges and continually developing your skills. This is an area where you never stop learning. Enjoy the ride.

Her Honour was appointed to the County Court in 2002. Prior to her appointment she was a Partner at Slater & Gordon where she specialised in civil litigation primarily medical negligence litigation. In 1999 she became an Accredited Specialist in Personal Injury Law of the Law Institute of Victoria. Her practice covered the breadth of litigation involved in medical negligence from birth trauma litigation to nervous shock claims. She was actively involved in responding to various public inquiries relating to the provision of professional indemnity insurance and medical negligence issues.

Her past Directorship roles include the University of Melbourne Council (2001-2012), the Global Learning Village Advisory Board (2003-2012), Melbourne University Law School Foundation and a number of community based organisations.

Her Honour is pictured here with her husband of 35 years, Crown Prosecutor, Brendan Kissane QC.

Making Friends with your Inner HCP

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For those of you who know me well, you will remember that a couple of years ago I achieved certification in “Dealing with High Conflict People in Legal Disputes”. I like to talk about this often because prior to undertaking this study, High Conflict People (HCP’s) scared me very, very, very much. Now they only scare me ‘very much’ which, I think you will agree, is an advance on my previous position.

Recently, in an effort to quell my remaining fears I attended a second course run by the High Conflict Institute – this time focusing on HCP’s in the workplace. It turns out there is a lot of interest in how to manage HCP’s across the board – I was in good company with a County Court Judge, the current President of the Law Institute of Victoria, and a range of other leaders, managers, lawyers, and dispute resolution practitioners – all very keen to increase their capacity to manage really, really difficult people.

So, who are these HCP’s? There are 4 key characteristics of the HCP:
• Preoccupation with blaming others (victim mentality)
• All-or-nothing thinking
• Unmanaged emotions
• Extreme behaviours

HCP’s have very little insight into their behaviours and though they don’t all have Personality Disorders, most of them do. Therefore, HCP’s tend to fall into the main five PD categories; narcissist; borderline; paranoid; antisocial; and histrionic. People with PD’s tend to have life long preoccupations with certain fears such as:
• Being treated as inferior (Narcissist)
• Being abandoned (Borderline)
• Being betrayed (Paranoid)
• Being dominated (Antisocial)
• Being ignored (Histrionic)

And they frequently distort events to match this inner reality by:
• Using all or nothing thinking
• Jumping to conclusions
• Emotional reasoning (relying on feelings rather than facts)
• Personalisation
• Exaggerated fears
• Mind reading
• Tunnel vision
• Wishful thinking

Lastly, HCP’s focus on the past; conflict gives their lives meaning and without it, they end up feeling a little lost in the world and a little bit empty on the inside.

I know. I know! I’ve just described your ex-partner, your current boss and probably several of your family members right?

Wrong! HCP’s seem like they are everywhere but most people are only likely to know (or know of) two or three at any given time.The reason they seem so familiar to us is because they are an exaggerated version of our worst traits. We recognise ourselves and others in them so they feel familiar, but the difference is pretty stark in reality. For example, say a normal person feels let down by their lawyer, they might make a complaint, even potentially sue if they can. Ever seen Cape Fear? Well, Max Cady is the HCP version of a normal person in the same situation. Scary huh?

Unlike most people, lawyers actually are exposed to HCP’s all day, every day. They are the bread and butter of our existence. In that sense, we shouldn’t be at all frightened of them. We should be excessively grateful to them really. And you would think that our exposure to HCP’s would make us exceptionally good at managing difficult people but, in practice, we are actually less equipped than most people. Firstly, we are trained to rely heavily on logic, reasoning, objectivity and strict ethical codes of conduct. This means we often just don’t relate to the HCP. They seem ‘totally bizarre’ to us; overly emotional, irrational, disingenuous and sometimes straight psychopathic. Secondly, seen one HCP, seen them all! After awhile the lawyer becomes desensitised to the HCP and simply can’t be bothered putting in the extra effort. Thirdly, HCP’s are supremely difficult to get along with. They are the people everyone tries to avoid. If you are engaging with someone and you have an irresistible urge to suddenly board a plane to Cuba, you have probably met up with an HCP. No, you’re not weird. It’s actually a healthy response. But it’s a response that you unfortunately need to override if you are a lawyer and you’re going to deal with the HCP’s you come across effectively.

You can’t manage an HCP from Cuba so how do you resist the urge to run when you come across one? How do you override the confusion, anxiety, anger, and often repulsion you feel when they are acting out? Well, oddly, the first step is in trying just that little bit harder to understand the fears that drive them. Every one of us knows what it feels like to feel inferior, abandoned, betrayed, dominated or ignored. It’s just a matter of tapping into your own memories to recall what that feeling is like. Once you have located a memory then you have to essentially multiply that feeling by about 1000 because HCP’s don’t just carry these fears, they carry these fears to the extreme. Secondly, you need to recall times where you have behaved badly. Whilst your poor behaviour might not have occurred at quite the rate of an HCP, or even reached those extremes, it essentially comes from the same place. Since we have all behaved poorly enough at times to know what it is like to hurt another, or to otherwise be generally unhelpful or inconsiderate, we should be able to empathise with other people who act poorly; even if it is often and even if it is extreme.

I like to call this process, “making friends with your inner HCP”.  (After all, one of the sure signs of an HCP is a complete denial of any of the traits that are typically associated with HCP’s – and you don’t want to be that person, right?)

Making friends with their inner HCP is probably the step that lawyers miss most and yet it is the first essential step to managing HCP’s.

In essence, managing an HCP effectively requires four rules of engagement:
• Don’t run. Rather, put your energy into connecting with them. You need to give them attention, respect and empathy if you want to go ahead with the next step;
• Join with them in the task of solving their problem by analyzing options with them;
• Always maintain a healthy skepticism about absolutely everything they say (the last thing you want to do is be drawn into their chaos by believing in their madness) and you need to help them reality test their ideas because reality testing is not their forte;
• Educate them about the realistic consequences of their behavior. HCP’s find it difficult to anticipate what would be reasonably foreseeable consequences to anyone else.

If you cannot achieve the first step (giving the HCP the attention, respect and empathy that they crave) you are going to go nowhere fast which is why it is more important than ever to make friends with your inner HCP.

Managing HCP’s is a complex skill that cannot be learned overnight. Hopefully this post gives you a basic understanding of what it involves, and certainly gives you enough information to get you through your next contact with an HCP client. A word of warning though: there are some HCP’s that you will never be able to get through to. Can you imagine negotiation with Max Cady? I think you know what I’m talking about! So, if that happens to you, don’t be too hard on yourself. I will look forward to receiving your postcard from Cuba, oh, and ¡a la tercera va la vencida!

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I moved to New York with my partner last year and worked there for six months

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I moved to New York with my partner last year and worked there for six months. It gave me a lot of confidence. I figured out no one knows what they are doing. You just fake it till you make it, and learn from experience. That’s not really conveyed to you at law school. 

Legends of Law School is a monthly column by Claudia McGarva

The final skill you need to acquire before starting to practise law: Simultaneous translation

by Robert Angyal SC

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Dear New Lawyer,

                Re: The final skill you need to acquire before starting to practise law: Simultaneous translation

Congratulations on finally becoming a lawyer.  It was hard work, took a long time, and cost a lot, but at last you are ready to strut your stuff as a lawyer.

But, first, a cautionary word.  The word is “English”.  Most Australian lawyers think they speak English.  They are wrong.  As a result of reading lots of court cases, law textbooks and law journals and of spending most of your waking hours with other lawyers, gradually – without realising it – you have come to speak a dialect of English that is peculiar to lawyers.

There is nothing wrong with this.  Most professions have their own dialect, which is impenetrable to non-members (have you ever spoken to a surgeon, or a software engineer, about what they do?).  Dialects like this come into existence because they serve a useful purpose: They facilitate efficient communication among those who speak the dialect. Thus, when a lawyer says to a judge, “With the utmost respect, the proposition that has just fallen from your Honour …”, this is much quicker than saying, “What Your Honour has just said is such a howler that even someone starting Torts 101 would know that it is grotesquely wrong.”

There is, however, a problem with the dialect spoken by lawyers.  The problem stems from the fact that the dialect is largely made up of words that also form part of the English language.  This is not true of other professional dialects.  For example, the words “endarterectomy”, “fundoplication” and “intussusception” come trippingly off the tongue of a surgeon.   By contrast, while the lawyer’s dialect does contain a few words that are not part of the English language, such as “hereinbefore” and “thereinafter”, it largely is made up of English words.

Here lies the problem: Because lawyers communicate in words that form part of the English language, they assume that non-lawyers – their clients, for example – understand what they are saying.  This assumption is unfounded and usually is incorrect.  Empirical research and commonsense both indicate that lawyers usually are not understood by their clients, nor by the general public as a whole.

What does this mean for new lawyers?  What it means is that, before you can effectively practise law, there is one remaining skill that you must acquire.  This skill is just as important as knowing the Rule in Shelley’s case, or being able to distinguish a dictum from a ratio decidendi.  You must be capable of simultaneous translation, like an interpreter at the United Nations.  While speaking in your dialect to other lawyers, you must simultaneously be able to translate what has been said into English for the benefit of non-lawyers present, such as your clients.

If you lack this skill, one of two things will happen:

1          The non-lawyer will not understood what has been said by the lawyers; or

2          The non-lawyer will understand what has been said to mean something completely different (i.e., the non- lawyer will completely misunderstand what has been said by the lawyers).

You’re thinking, I know, that the potential for misunderstanding is small.  Having given the matter the consideration which appears to be appropriate, having due regard to all the relevant contemporaneous circumstances, it is my respectful submission that I must beg to differ. (I bet you didn’t notice that the previous sentence is not comprehensible to non-lawyers and thus requires translation into English.)

To demonstrate why you need to engage in simultaneous translation, here is a table of common phrases in lawyer dialect, together with the corresponding misunderstanding of each phrase by non-lawyers.

 

Phrase in lawyer dialect Meaning to a speaker of English
I beg to differ.” Please, can we have something different for dinner tonight?
Make an expedition application Apply to join the expedition [to the North Pole]”
Apprehension of bias They caught the crook.”
Reasonable prospects of success Good chance of finding [gold, silver, etc]” 
You cannot approbate and reprobate. Don’t ask me to approve of that no-hoper.” 
[In cross-examination] “Madam, I put this proposition to you …” I want to have sex with you.” 
I am submitting there is binding authority for this proposition … I want to have kinky sex with you.” 

 

Robert Angyal SC

James Farrell

James farrell

Can you describe the different types of roles that you have had?

I volunteered at community legal centres while I was studying, and was drawn to using the law to achieve social change. When I finished law school, I joined a large national commercial firm, where I had great opportunities to develop, working with great mentors and teachers. I was seconded to a large corporate client for over six months, which was a great insight into inhouse practice, which allows a lawyer to develop more commercial skills and really strong internal relationships with people with a range of experiences and strengths. I was the principal lawyer at a homeless persons’ legal clinic, where I worked with passionate and intelligent people – peers, clients and supporters. I also worked as an academic in a law school, and was really drawn to the way that research could influence public policy. So I’ve experienced a range of legal roles, but I keep coming back to community legal centres; they’re the places where the law is most real and raw, where laws and institutions have a powerful impact on powerless people, and where you can see real improvements in people’s lives, including your own.

When did you know that you wanted to be a lawyer?

I wanted to be a lawyer when I was at high school; like many high-achieving students who didn’t enjoy maths, it seemed like a good option. I also grew up in a family that was really involved in the community and talked about ideas like equality and justice, so it seemed like a good fit. I didn’t get the marks I wanted at high school, so took a circuitous route, working in hospitality for a few years before starting uni at age 22. I haven’t looked back!

A lawyer, a priest and a classicist walk into a bar. What does the lawyer say and why?

‘Get me a beer.’ Because sometimes, you just need a drink.

If you could only give one bit of advice to new lawyers, what would it be?

Get involved in pro bono or volunteer at a community legal centre, or in another cause. You’ve been blessed with skills and an education that can make a real difference to the community, so don’t waste it. As a new lawyer, you’ll have great opportunities and experiences when you work for free for people who really benefit from your help.

What makes a lawyer a great lawyer?

An ability to connect with people. I’ve seen a lot of people who understood the legal rules, remembered the cases, and could draft great legal documents. But the great lawyers can all connect with the people around them – colleagues, clients, court officers, baristas and barristers.

What would you say are the hazards of this profession?

The legal profession attracts people who are bright, committed and ambitious, and that’s part of what makes lawyers such interesting people to work with. Those same characteristics make it difficult for us to accept anything less than perfect, and to focus too much on our work, at the expense of some of the other important things in our lives. We shouldn’t ever lose sight of those important things – and people – in our lives.

How do you balance life and work?

It’s hard. I love my work, and probably work more than I should. My kids (Jack, aged 6, and Georgie, aged 5) keep me pretty grounded. When Georgie was about 3, she asked me if I was sleeping at my work during a particularly busy stage – that was a rude awakening!

 

James Farrell OAM is the director of QAILS (Queensland Association of Independent Legal Services), the peak organisation for community legal centres.