Professionalism

I wish I knew… about the Trump slump

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Claudia McGarva

By Claudia McGarva

I have been surprisingly affected by Trump winning the US election. I had never been a political obsessive or knowledgeable about international elections. My secret fear is being stopped in the street by the Italian equivalent of John Oliver, and being asked who is the Italian Prime Minister (and then feature on some Youtube video that goes viral in Italy about ignorant Australians). Unfortunately, the perception of ignorance is more motivating to learn about this stuff than the dangers of ignorance itself.

However, Trump’s victory had me feeling … bummed. I had an extra glass of wine or two that night. I felt the need to talk about the election with anyone who would listen. I went to work the next day in a slightly off mood, my thoughts becoming nihilist in nature as the day went on.

I was in the Trump slump.

Sure, I had followed the election as closely as your standard observer. I was hurt, yet not shocked, by his comments about grabbing women’s pussies, denying women access to abortions, building walls, and calling for a temporary ban on Muslims entering the US.

Like so many people, I thought he couldn’t win. Stupidly, I thought the video of him and Billy Bush talking about sexually assaulting women was the nail in the coffin. In 2016, surely your average voter wouldn’t rely on the “boys will be boys” rhetoric and recognise this person is not fit for the job? Surely, the majority would listen to his absurd policies and discount him as a narcissistic reality TV star and not a serious politician?

Unfortunately, Trump’s win clarified for me what I’ve learnt during my legal career: that you can be the most prepared, the most qualified, the most conscientious, the most earnest, the most respectful practitioner and still lose out to incompetence, vindictiveness and showmanship.

I think about the matters that unnecessarily dragged on because someone didn’t file a document on time, didn’t turn up to a court appearance, refused to produce material, and made irrelevant and rude statements to fan the flames. Sure, you may get a cost order here and there, but enforcing those orders is a whole other issue. I think about the matters that have settled because the other party and/or their representative were obstructionist, aggressive or crazy. The idea of battling on, dealing with the cost and stress of litigation, was too much for some clients and understandably, didn’t want to continue to a final hearing to be proven right.

Yet in most of these matters, whilst the poor behaviour may have been called out and ‘tut-tutted’ by the judge, or by the law society, it didn’t change the ultimate outcome. My clients still had to pay their legal bill, which had blown out through no fault of their own. The disgruntled self-represented litigant still filed new applications and appeals, dragging the other party back to court under the guise of procedural fairness. The obstructionist lawyer still found more clients and mismanaged their matters, clients who were non the wiser, thinking they could trust their lawyer to act in their best interests.

It is an uncomfortable truth that incompetence is a strategy to get what you want. According to the commentary, Trump was the ‘anti- establishment’ candidate (yet I don’t know how someone who had clearly benefited from the establishment to generate enormous wealth could be deemed against it). Apparently, his political ineptitude was a drawcard for many and Clinton’s experience was a major deterrent. They didn’t want the same old, same old. However, as Tom Friedman from The New York Times observed:

“As much as I knew that it was a possibility, the stark fact that a majority of Americans wanted radical, disruptive change so badly and simply did not care who the change agent was, what sort of role model he could be for our children, whether he really had any ability to execute on his plan — or even really had a plan to execute on — is profoundly disturbing”.

We can call Trump a misogynist and racist, and the American people stupid. Yet what does this achieve? Merely ascribing labels laden with value judgments to shut down conversation is not enough. We need to listen, engage, analyse and debate to truly understand and challenge the structures that reward incompetence and the people that are allowed to successfully operate within them, however infuriating that may be.

I’m not going to become a rogue solicitor because I might be able to get away with it. I want to be an ethical practitioner. I will, however, wallow in my Trump slump for a little bit longer, just until I finish the bottle, and try and ward off the dangers of ignorance by googling the Italian Prime Minister.

 

 

 

 

 

Judicial Bullying: a (brief) Beginner’s Guide

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I have been coaching new lawyers for many years now, either in group workshops, or privately as an individual, and the one conversation that I can always count on having is the conversation about judicial bullying. Whilst not every new lawyer has experienced judicial bullying, most have, and the ones that have not experienced it directly have seen it happen to colleagues and live in fear of it happening to them.

Alarmingly, those that report having been bullied by judicial officers, describe their experience in terms that are almost identical to how victims of verbal and psychological violence in a domestic setting describe their experience. For instance, they talk of being frozen in the moment, unable to respond for fear of exacerbating the bullying, being unable to flee (as a practitioner cannot leave the Bar table without permission) and feeling sick to their stomach, distressed, and sometimes unspeakably angry, but at the same time feeling completely unable to defend themselves adequately due to the power imbalance between them and the judicial officer. They speak of being so thoroughly humiliated that they have sometimes resorted to taking days off after the event. They speak of having a sleepless night or two where they mentally run through everything they have done – should I have said this? Maybe I shouldn’t have said that. They think if they can identify what it is they have done to deserve the bullying, they can make sure they don’t do it again and they will therefore not be bullied in the future. Usually they then speak to me of plans they have come up with to try and stave off the next bullying attack. Finally, they ask me hopefully if I have any tips for them. I never enjoy the look of fear and disappointment that crosses their faces when I advise that actually there is nothing they can do to stave off the next attack. Absolutely nothing.

Relying on the lived experience of new lawyers that confide in me, judicial bullying often includes (but is not limited to):
– Shouting at them;
– Deliberately saying things to embarrass or humiliate them;
– Asking them to justify themselves in circumstances that are unfair;
– Calling them names;
– Calling into question their professionalism in circumstances that are unfair;
– Accusing them of incompetence in circumstances that are unfair;
– Using various facial expressions to demean or intimidate them;
– Setting unrealistic time frames;
– Making them work through lunch breaks;
– Refusing to give them time to formulate an argument or response in circumstances where it is unfair to do so.

Apart from being obviously degrading and damaging to lawyers, judicial bullying can be disruptive to the court process itself (it can sometimes take an awful long time to pontificate), and it can also be damaging to lawyer/client relations. The client is unlikely to be able to objectively assess the judicial officer’s words or looks and can sometimes take their words, for instance, as statements of fact from a higher authority. The client then leaves court feeling that the lawyer has not done their job properly or has otherwise failed them and that, therefore, they have not had a fair hearing. Likewise, other lay people sitting in the body of the court would be forgiven for watching a judicial bully in full flight and wondering whether it is even possible for justice to be done in such a chaotic courtroom.

Of course, we are not talking here about justifiable complaints made by judicial officers. I have never had a new lawyer complain about a justifiable complaint made with grace and tact. I have received many complaints about judicial officers using the inexperience of a new lawyer as an excuse to vent some of their own inner stresses.

And this is where it gets interesting. I think we can all agree that psychologically healthy people do not bully others. The same goes for judicial officers. Psychologically healthy judicial officers do not bully others. If they do feel that the advocate has not performed to their expectations, they may say so tactfully and gracefully. Healthy judicial officers do not resort to name-calling, shouting, or facial expressions designed to humiliate or intimidate the advocate. Judicial bullying, seen in this context, stems from a mental health crisis in the judiciary which impacts, in turn, on the wider profession and the community as a whole.

So what is to be done? How do we make judges healthy so we can work in a healthy workplace?

Happily, this question has already been asked and answered in part by the Judicial College of Victoria who recently launched Australia’s first online wellness resource for judicial officers aimed at assisting “judicial officers to respond optimally to stress in themselves and others.” http://www.judicialcollege.vic.edu.au/judicial-wellbeing. Naturally, the idea behind the resource is to promote wellness among judicial officers who are renowned for suffering from stress, anxiety and even vicarious trauma associated with their unrelenting work schedules and the nature of the proceedings that play out before them.

At the same time, the government is also taking steps to bring about some much needed accountability. In 2015 the Andrews Labor Government announced that they would establish a new commission to investigate complaints into the conduct of judicial officers in Victoria. The commission will not only be able to investigate complaints, it will also have a process for especially serious cases whereby it can refer judicial officers to a special panel with coercive powers. In some circumstances the panel could recommend removal from office. The Judicial Commission of Victoria Act 2016 comes into operation 1 July 2017. Under s5 and s6 of this Act an individual or, a professional body on the individual’s behalf can make a complaint into the conduct or capacity of a judicial officer or a non-judicial member of VCAT. This is important, as many individuals may be reluctant to report poor judicial behaviour if it may mean jeopardising their career. The Heads of Jurisdiction, the AG and the IBAC can also make referrals. The Act provides the commission with coercive powers. Judicial officers can be made to produce documents, appear at hearings, undergo a medical procedure and the Commission even has the power to issue search warrants.

Unfortunately, the legislation does not identify what type of conduct is reportable. Likewise, it does not refer specifically to judicial bullying and it does not provide a definition of it. For a long time conversations about judicial bullying have been complicated by the lack of any universally accepted definition of what judicial bullying is. We do, however, currently have two definitions of ‘workplace bullying’ within the legal profession that we can draw from. For instance, under Rule 123(c) of the Legal Profession Uniform Conduct (Barristers) Rules 2015 – a barrister must not in the course of practice, engage in conduct which constitutes workplace bullying defined as: “unreasonable behaviour that could reasonably be expected to intimidate, degrade, humiliate, isolate, alienate, or cause serious offence to a person working in a workplace”. The Legal Profession Uniform Law Australian Solicitor’s Conduct Rules 2015 has a similar provision but its definition of workplace bullying is, arguably, broader. It defines bullying, as “bullying that is unlawful under the applicable state or territory anti discrimination or human rights legislation If no legislative definition exists, it is conduct within the definition relied upon by the Australian Human Rights Commission to mean workplace bullying. In general terms in includes the repeated less favourable treatment of a person by another or others in the workplace, which may be considered unreasonable and inappropriate workplace practice. It includes behaviour that could be expected to intimated, offend, degrade or humiliate.”

Putting definitions aside, the twin approach of assisting judicial officers to be psychologically healthy as well as making them potentially accountable for their stress-related behaviours has to be a recipe for success.

While we are patiently waiting for the effects of these latest innovations in the legal landscape to trickle down here are some tips to assist the new lawyer to manage their experience of judicial bullying.

• Place the behaviour in context. It helps to understand judicial bullying as a reflection of the psychological status of the judicial officer, rather than being attributable to something you have done or haven’t done.
• Don’t show fear. Be firm with the judicial officer, particular if they are resorting to name-calling, shouting, or accusations of unprofessional conduct. You are entitled to defend yourself. You might say for example: “Your Honour’s accusations are unfair. They are unfair because…”. It is not a sign of impertinence to defend yourself against unfair statements.
• If you have made a mistake and the judicial officer has taken delight into causing you to feel even more humiliation about it than you already do, please go easy on yourself. The judicial officer is suffering from what the writer calls SSMS, or, Sudden Short Memory Syndrome, where they suddenly cannot recall any of their early career mistakes and hold all lawyers to the same standard whether the lawyer has been admitted to practice for one week or twenty years. You don’t have to allow their SSMS to bring you down.
• De-brief with colleagues. It always helps to talk about the experience and your colleagues will no doubt have stories of their own to share.
• Do not go over and over the incident in your mind and wonder what you could have done to change it. You are never responsible for the behaviour of a judicial officer. Never!
• If it is a very serious case of judicial bullying, report the matter to the LIV or Vic Bar (whichever is your professional association) – they are able to take the matter on your behalf to the Heads of Jurisdiction.
• After work, go home and be extra kind to yourself. You have just been through an ordeal. Don’t just sweep it under the carpet. Process it by talking, writing or meditating but at the same time tell yourself quite explicitly that you are going to look after yourself now as you have been treated poorly and you deserve better.

Good luck!

I wish I knew… when to hang up

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Claudia McGarva

By Claudia McGarva

When I started practising law, everyone refused to speak with a particular lawyer over the phone. This lawyer was known in the legal community as ‘the Pterodactyl’ due to her screeching at other lawyers. If she called the firm, all the assistants knew not to bother putting the call through to the lawyer responsible for that matter. They would politely say, “It is our policy that all communications are to be in writing”, and hang up.

I was shocked when I met this lawyer at court one day. She was pleasant enough. I think she even complimented my shoes. I didn’t understand why my firm had a ‘policy’ to deal with her. That was, until I had a matter against her.

She wasn’t just rude; she was abusive. She called my client a liar. She called me a liar. She said my correspondence was “bordering on unethical” because I had asked for some documents and included a deadline. She made continual threats. These ranged from making a complaint to the law society to seeking numerous personal cost orders against me. As a baby lawyer, I would be lying if I said I had Teflon skin. I was terrified of this woman. When I saw an email waiting for me the next morning from her, I would sweat. I would make sure every email and letter was immaculate and I wrote a transcript for every conversation I had with her. I would lie in bed thinking about the threats I had received from her that day, thinking I would lose my practising certificate before the ink was even dry. Whatever confidence I did have when I started practising was quickly evaporating.

That was, until I realised the threats stemmed from her insecurity. She was a generalist practitioner, did not specialise in that particular area of law and had only been practising in that field for about a year. She was also a sole practitioner. I was exclusively practising in that area of law and had access to experienced lawyers to advise and mentor along the way. The aggression was a mechanism to prove to her client that she was advocating strongly on their behalf and deafen her ineptitude. I am all for ‘faking it till you make it’; however, I had never seen a senior lawyer act this way. There is no need to. It doesn’t help your client and it doesn’t help you. It puts other lawyers off side and makes you feel more isolated in, what can be, a lonely industry.

Now, I do not engage with these practitioners when they carry on. Sometimes, I remind them of the legal profession rules (and very rarely, threaten to make my own justified complaint to the law society).  However, most of the time I now say “put it in writing” and hang up.

I wish I knew… the value of time

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Claudia McGarva

By Claudia McGarva

I had a baby seven months ago and recently returned to work. The first thing I noticed about re-entering practice was that the whole industry – court, networking events, clients, continuing legal education, strategic planning meetings – does not care that you have to pick your child up from day-care, or you will be charged $40 for each minute after 6:00pm. Luckily, my partner and I are sharing the load but each day is an evaluation and negotiation of one’s priorities over the other’s. I am not going to bemoan the legal industry and discuss the tired term ‘work–life balance’. No, this is about not wasting time when time is a luxury.

When I was a junior lawyer, I would go to any work social events, seminar or committee meeting that was on. This was partly motivated by the university mentality that if an event offered free food and booze, you should take advantage. Also, it was a way to meet other professionals, learn something new and not feel so isolated in the industry. Young engineers networking social lawn bowls? Why not. Intensive weekend advocacy workshop? Bring it on. Alternative Dispute Resolution Committee for feminist vegan socialists? Of course. I had time to fully commit myself to my career and was willing to do so.

After a couple of years of practice, I stopped challenging myself and went through the motions.  It was not burn out; it was laziness. I think about the time I wasted watching bad TV, reading books that I didn’t like, thinking about going to the gym, and pretending to like crafts. In pregnancy, I stopped going to networking drinks as I felt like a diabetic in a chocolate factory and my feet hurt. I was still on cruise control.

However, since returning to work, I realised that I can’t always go to that interesting seminar interstate, or attend that committee meeting that runs until 8:30pm. I try to attend some events however at the moment, I do not have the luxury of being able to solely focus on one thing. I’m sure there will be a time when I can commit myself fully to the industry (yet ironically this will be when I am ready for retirement). However, there are some things I wish I did before bubs came along – further study, apply for that higher position, meet more people and be grateful for the level of control you have over your time. I think about how that time could have been used to learn something that would inspire me, meet interesting people and work towards a challenging goal.

I’m grateful for the time I now have with my son, and professionally, feel more productive than ever before. Unfortunately, there are so many things I want to do now to reinvigorate my interest in the law yet cannot do at the moment. There are only twenty-four hours in a day, and my son sleeps for about six of them. I wish I knew the value of time when I had it in spades. However, I have learnt from my regret. I no longer waste time doing things I think I ought to, but really do not want to. If this means that I never finish reading Bleak House after the third attempt or learn how to knit, then perhaps that time was not wasted after all.

Her Honour, Magistrate Pauline Spencer

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

I actually didn’t really know I wanted to a lawyer until I started working in a law firm. When I was finishing school I wanted to be a vet or a physiotherapist. It was the 80s (the time of power suits and the glamour of “LA Law”) and a stint of work experience with a vet confirmed I did not like blood, so I enrolled in Commerce/Law degree. Given the way law was taught back then, law school seemed so unconnected with real life. It was not until I got a part time job in a law firm doing personal injuries cases and started to meet with injured workers and their families that I realised the law could assist people. It was then that I decided I wanted to be a lawyer.

What attracts you most to the profession of law?
So at first it was helping individual people, then I worked on a few cases that had broader social implications and I was attracted to the law as a tool for broader systemic change. It was important though to build my skills as a lawyer. I think it was Justice Kirby who once said that if you want to use the law to make change then you have to be a good lawyer first and foremost.

If you had your time again, would you choose to practice in law? If not, what else would you choose to do?
I think I would be a lawyer again. I would love to go to law school now with the new focus on teaching social context and therapeutic jurisprudence. I do worry about the graduates coming out of law school now given how hard it is to find graduate positions and sustain a living in the industry.

What was the single moment, case or event that you feel defined you as a lawyer?
I can’t think of a single moment and I wonder whether this idea of the heroic lawyer with THE big case is healthy for lawyers. For me the types of moments that defined me as a lawyer were when I was able to show compassion to someone who needed my assistance. Maybe it’s these little moments that lawyers should celebrate more. They can happen every day if you choose to practice in that way.

If you could only give one bit of advice to new lawyers, what would it be?
Try to expose yourself to as a many experiences as possible before you decide which area of the law you want to focus on. The law is so diverse and it takes a while to find out what will excite and sustain you.

What is your best tip for maintaining sanity in the law?
It might be hard but try to find a job that you love where you feel you can make a difference. If you can’t find that job then try to make a difference outside of your day job e.g. volunteering at a community legal centre advice night.

What will the legal profession look like in twenty five years time?
Lawyers in all areas of the law will work in multi-disciplinary teams where the lawyer will work with social workers, financial counsellors, drug counsellors to deal not only with the legal problem but with the impacts of the law on the individual and the broader community. Their work will be informed by the law but also other disciplines like addiction medicine and behavioural science. Therapeutic jurisprudence, the maximisation of the therapeutic impacts of the design of the law, legal process and the roles of legal actors, will become part and parcel of how lawyers work.

Her Honour was appointed as a Magistrate with the Magistrates’ Court of Victoria in 2006. She currently sits at Dandenong Magistrates’ Court one of Victoria’s busiest mainstream courts. Her Honour previously worked in as a lawyer in private practice and in the community legal centre movement. Prior to her appointment, she was the Executive Officer of the Federation of Community Legal Centres, the peak body for over 50 community legal centres in Victoria. Her Honour has an interest in therapeutic jurisprudence; improved responses to family violence; and improving connections between the court and the community. She is a member of the Advisory Group for the International Therapeutic Jurisprudence in the Mainstream Project: www.mainstreamtj.wordpress.com

 

Michael McGarvie

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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.

What Kind of Professional Do You Want to Be?

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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

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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.

Lawyers’ Mental Health ‘a Life and Death Issue’

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Victorian committee members with TJMF board members - Erandathie Jayakody, Max Paterson, Marie Jepson, Jacqui Pitt and Jeremy Hyman (Photo: Sagona Photography)

Victorian committee members with TJMF board members – Erandathie Jayakody, Max Paterson, Marie Jepson, Jacqui Pitt and Jeremy Hyman (Photo: Sagona Photography)

 

By Dean R P Edwards

The recently appointed Honourable Associate Justice Mary-Jane Ierodiaconou keynoted the Tristan Jepson Memorial Foundation’s annual lecture held at Monash Law Chambers last Tuesday, October 6, 2015.

TJMF co-founder Marie Jepson, Tristan’s mother, introduced her Honour to a packed room Tuesday night. Jepson also highlighted the Foundation’s mental health guidelines for the profession, saying the guidelines “provide a unique opportunity to leaders who want to leave a legacy and help to forge a new path”.

Her Honour spoke on the theme of “Inspiring Change: Creating a Positive Workplace”, drawing on her experience as a founding partner at law firm Justitia and, in particular, in encouraging lawyers to adopt an “ethics of care” in the workplace.

Her Honour said the legal profession had focused on individual resilience to date while “structural issues need addressing”. Continue reading →

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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