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

by Robert Angyal SC

tanslation

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

The Misery of the Mockingbird

mockingbird

By Finchley Atticus

“I’m your number one fan.” Annie Wilkes, Misery (1990)

Twenty five years I was enthralled by the suspense motion picture Misery at the cinema, watched between Monash law lectures.  Adapted from the eponymous Stephen King novel, it chillingly depicts a devoted fan running amok when the author she idolises goes off script. Paul Sheldon (a brilliant, sympathetic and restrained performance by James Caan) achieved fame writing a series of romantic novels featuring the fictional Misery Chastain. Paul is injured in a car accident during a snow blizzard whilst travelling back to the city, but fatefully is rescued by nurse Annie Wilkes (Kathy Bates deservedly earned her Oscar for her unforgettable performance).

Annie gushingly proclaims to a bed-ridden Paul that she is his “number one fan”. Annie is awed being in the presence of her literary hero and whilst nursing him back to health in her farmhouse, revels in tidbits of information gleaned from Paul about her favourite heroine Misery. Frighteningly for Paul, his surprising news that he killed off Misery in his latest novel unleashes an unrelenting and disturbing wave of wrath and fury from the somewhat obsessive Annie.

Oh Paul, how dare you kill off my Misery!! In dramatic and threatening fashion, Annie forces the recuperating Paul to bring Misery back to life by furiously typing up a new manuscript. For those unfamiliar with the movie, you’ll have to get the DVD to see the breathtaking and frenzied denouement.

What hasn’t been pretty recently is the recent revelation that Atticus Finch, our Atticus Finch, esteemed defender of justice for the under-privileged, has become a pro-segregationist who once attended a Ku Klux Klan meeting, harbouring at the very least bigoted and possibly racist views towards African-Americans.

What? Yes Atticus Finch, portrayed in To Kill a Mockingbird (the 1960 novel and 1962 movie where Finch was perfectly personified – some would say glorified – by the great Gregory Peck), the Alabama lawyer who in the face of segregation, stood up for an innocent African-American client in the face of ingrained prejudice from those white southerners.

“We chose the name Atticus for our son over a year ago because we felt then that it embodied a beautiful form of selfless integrity. In light of To Set a Watchman…we no longer feel comfortable using his name. We have decided to legally change his name to Lucas.” Colorado parents David and Christen Epstein’s Facebook post after reading To Set a Watchman.

Go Set a Watchman, Harper Lee’s purported sequel to To Kill a Mockingbird, is the 2015 novel that would cause Annie to redefine the Richter scale of wrath and fury even though Atticus didn’t die.  Well not physically. But judging from the reaction of anyone who idolised Atticus and what he stood for, for those who were inspired to enter law school because of Atticus, and those who even named their sons after him, his ideals are unequivocally six feet under.   We weren’t even invited to the burial.

I won’t speculate what motivated Harper Lee chose to publish Watchman 55 years after To Kill a Mockingbird hit our bookshelves, or why she decided to instil the bigotry that Atticus displays post-Mockingbird. Although it’s worth noting that Ms Lee originally wrote Watchman but her editor at the time decided she should best write it from the innocent perspective of Scout – Atticus’s daughter. This became the author’s crowning achievement, the 1960 novel To Kill a Mockingbird. One could also surmise the editor’s shrewd decision was a crowning achievement in the annals of book editing.

What’s fascinating is how many Atticus fans and acolytes are upset, distressed and disturbed by the fortunes (or misfortunes) of a fictional character. Without stating the obvious, Atticus Finch isn’t real.  He is the creation of an author, just as Misery Chastain was the creation of Paul Sheldon.

I’m afraid that Atticus Finch doesn’t belong to us. He is the creation of Harper Lee. Of course that’s not to disrespect the idealism of his fans. If anything we need more lawyers devoted to helping the underprivileged in a world where decent legal representation is a luxury many cannot afford.

It’s understandable to be emotionally attached to fictional characters especially those that display near heroic qualities that embody a sense of justice, hope and fairness in a nasty world. I’m sure though that no Atticus fans are in the same disturbing league as Misery’s Annie.

I can’t help but wonder how much Gregory Peck’s outstanding portrayal of Atticus Finch in the 1962 motion picture To Kill a Mockingbird did to further shape and influence a student’s career path or their child-naming choices.  I don’t think his depiction of the principled, courageous and gentlemanly Atticus can be understated.  After all, Gregory Peck gave us a sympathetic portrayal of a model of integrity, a widowed father to cute kids well before Ted Danson and Co showed us how to raise a newborn in Three Men and a Baby, and well before John Stamos and Co in Full House demonstrated how to raise the Olsen twins. Besides, Danson and Stamos didn’t defend underprivileged African-Americans from the death penalty.

In real life Gregory Peck displayed admirable traits. To his credit he was very prominent in social causes, advocating gun control and denouncing the Congressional witch-hunts of alleged Hollywood communists.  He opposed America’s involvement in the Vietnam War.  Thankfully Peck didn’t have any skeletons in the closet. But what if he did? He would need a top-notch legal team and A-grade publicists for one thing, but putting that aside, I wonder how such indiscretions would have lowered Atticus Finch down a notch or two in the eyes of his fans and devotees.

“How will the new portrayal of Atticus Finch affect lawyers of that generation who were really young when To Kill a Mockingbird came out and were inspired to go to law school because of that?” Laura Marsh, “These Scholars Have Been Pointing Out Atticus Finch’s Racism for Years”, The New Republic, July 2015.

Well it shouldn’t really. Let’s not forget some academics have previously highlighted Atticus Finch’s motives were not entirely honourable (if one’s motives can ever be entirely honourable 24/7 – we’re human after all).  Maybe his blind spot only became visible when To Set a Watchman was published. Yet it’s understandable that law students hold Atticus Finch, especially as embodied by Mr Peck, as the ideal role model (the fact that some law students extol Harvey Specter as a role model is cause for concern). Mary Badham, the actress who will forever be idolised for her role as sweet and innocent Scout, recalls the ostracism she suffered when she returned to segregationist Alabama after her six-month stint in California filming To Kill a Mockingbird. Friends who previously welcomed the actress into her home declared her persona non grata. Not surprisingly, Ms Badham is continually adored by fans as she represents a living link to the innocence and integrity of To Kill a Mockingbird – the book and movie – that was an essential part of many people’s childhoods.

“Have you ever considered that men, especially men must confirm to certain demands of the community they live in simply so they can be of service to it?” A question asked by the uncle of Scout in Go Set a Watchman

Heroes aren’t perfect. Atticus Finch may have been a hero to many maybe because of his outstanding qualities in a world needing heroes.

Shock horror, news flash – a lawyer can be a true professional even if they hold views we find uncomfortable and even repugnant.  No-one has ever suggested that Atticus tanked his defence of Tom Robinson, although he was reluctant to take the brief. But the reality is lawyers can still act professionally despite their personal motives or who they represent.

We barely flinch when prosecutors “swap sides” to become defenders and maintain their professional edge and ability to defend hardened criminals, the ones they would have prosecuted earlier, although strangely I don’t know many defenders who cross the floor to become prosecutors.

“Harper Lee’s Lawyer Teases Possible Third Book” Vulture, 13 July 2015

The publication of a third Mockingbird book may be too incendiary – perhaps Scout marries a Klansman?  While we’re at it let’s transform Ella and Anna in the Frozen sequel into blossoming cougars preying on Malibu college students. But there’s hope. As a child of the 80s I remember the outrage when Bobby Ewing was killed off in Dallas, only to be brought back a year later at the stroke of a script writer’s pen. Remarkably it was all a dream. Sure, it stretched the bounds of credibility but at least the loyal viewers got their Bobby back.

We can only hope a third Atticus Finch book (maybe Mockingbird Redemption) reassures us that Watchman was one long nightmare which we endured for the sake of eventually ensuring our Atticus is truly redeemed. Besides it would give idealistic and well intentioned parents the opportunity to re-name their sons Atticus all over again.

Specialisation Does Not a Lawyer Make?

by Dean R P Edwards

I had been recently discussing the future prospects for a generalist practitioner with a fellow young lawyer. Specialisation is the buzzword these days and every other lawyer appends to their legal practice some kind of niche – be it Property & Real Estate, M&A, Insolvency, and so forth.

It is with some relief that Jonathan Sumption QC, a Justice of the UK Supreme Court, thinks this is a rather bad idea. (You can read more here, although the original story is hidden behind a Sunday Times paywall.)  Continue reading

Arna Delle-Vergini

Arna

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

A long, long time after I became one. I was young and restless and no matter where I was in my life, or what I had achieved, I was always searching for the next Troy to burn. At first I thought this was because I had potentially chosen the wrong career, but eventually I realised it was actually a pattern throughout my life, and what I really needed was to learn the simple art of contentment. It sounds easy, but it is one of the hardest disciplines I have ever tried to master and I am a long way from achieving it. The best I can say is that I am committed to trying.

What attracts you most to the profession of law?

I am one of those people who loves through acts of service. Even when I was a teenager I was volunteering in social justice projects.  I believe it is incumbent upon all of us to contribute to our community, and the more skilled you are, the greater your commitment should be. To be able to do this as a means of earning a living is an incredible privilege. People might say that makes me an idealist. I don’t believe I am. I just have an overwhelming sense of gratitude for the rare opportunities that I have had and a strong feeling that if you are given a gift (which is essentially what our privileged existence is), you really must share it.

What was the single moment, case or event that you feel defined you as a lawyer?

The defining moment of my career was, oddly enough, not even related to my practice. I undertook a subject in my Masters of Laws because the times of the class suited me. The subject was called ‘Dealing with High Conflict People in Legal Disputes’ and it advocated a completely different style of lawyering to the adversarial style that I was trained in. To say that this subject annoyed me would be putting it mildly. In fact, I wrote a 10,000 word, fairly defensive, paper on how adversarialism was a necessary prophylactic for lawyers. I actually received top marks for the paper but it was a Pyrrhic victory because by the time I had finished writing, I didn’t even believe in my own thesis. By the time I finished writing the paper, I was a convert to therapeutic jurisprudence and I haven’t looked back since.

What would you say are the hazards of this profession?

In my view, the hazards of this profession relate solely to the personal cost of practice. Most of us in the profession know by now that lawyers are disproportionately overrepresented in the professions for depression, anxiety, drug and alcohol addiction and marital breakdown. There are a lot of theories as to why this might be and trying to work out the answer to this puzzle keeps a lot of us in the ‘health and well-being for lawyers space’ gainfully occupied. I don’t have the answers. If I had the answers, I wouldn’t have started a website to promote dialogue about the meaning behind being a lawyer with a strong emphasis on health and well-being. Essentially, being a professional should not cost you your health or your well-being, or, indeed, your life. It’s pretty simple really.

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

There is a quote that I love: ”The first forty years of childhood are the hardest”.  I mentor many law graduates and they always shift a little uncomfortably in their seats when I share this with them because they’re often still in their twenties.  I deliberately share that quote with them though because they need to understand that it’s okay not to have all of the answers now. They’re not supposed to. Nor will they ever have all the answers for that matter. I don’t have them. Neither do our (legal) heroes, the judges and justices of the higher courts. New lawyers need to take the pressure off if they want longevity in their career. They expect to have ‘arrived’ the moment they get their practicing certificate. Unfortunately, that’s effectively where their journey starts. The process of becoming a good lawyer is a long one. This is why I ultimately focus so much on self-care and how you conduct yourself as a lawyer. I’m sorry but knowing and applying the law is the easy part. Being a ‘good lawyer’ though is a real challenge and one that is likely to be a life-long career journey. This is the next level of lawyering and it is arguably more of a challenge because lawyers are only trained in what the law is and/or how to apply the law, but not how to be an actual lawyer.

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

I did a Law/Arts degree at Melbourne University. My focus in Arts was Classics. In fact, Classics has been a life long passion. I traveled to Italy in my twenties to get my copy of Roberto Calasso’s “The Marriage of Cadmus and Harmony” signed by the author himself. He was a little surprised, but mostly delighted, that his novel had so much appeal to a lawyer as his father was a Law Professor. I still occasionally dream about being a classicist and spending a life attending archaeological digs all around the world but I daresay, if I had my time again, I’d make the same choice. Firstly, I dislike heat. Secondly, I am afraid of snakes, spiders and scorpions. That rules out probably 99% of all digs. I think this is why sometimes I like to toy with the idea that there are parallel universes. It makes me happy to think of myself somewhere in another Universe living the life of Indiana Jones, but I would never go so far as to give up my comfortable little patch of green on Earth for it.

How can one distinguish himself or herself as a legal professional?

Be yourself. After all, as Oscar Wilde so aptly puts it, everyone else is taken.

Arna Delle-Vergini is a Victorian Barrister, accredited mediator and a legal coach. A therapeutic jurisprudence convert late in her career, Arna has developed a particular interest in practitioner health and wellbeing. In 2013 Arna convened www.newlawyerlanguage.com – a website she hoped would promote dialogue amongst lawyers about the meaning of their professional role in a dynamic legal climate. She also explores her interest in practitioner health and wellbeing through her Masters, her role as a member of the Victorian Bar Health & Wellbeing Committee, and by regularly facilitating training and workshops with new and emerging lawyers.

To Die Laughing

by Arna Delle-Vergini

laugh cry

We have all done this. At some time or other, all of us have committed this error of judgement. And so, whilst I write of this one anecdote, I am reminded that I could choose many more, and, worse, could even have chosen some of my own from my early career. I write about this example only because it is the most recent. This could have happened at any time and to any one of us.

I was at court a few months ago when I overheard two lawyers in conversation. They were sharing examples of recent and dreadful cases that they had been working on. One lawyer would share a case and that would be followed by an exclamation from the other lawyer, something along the lines of “that’s nothing!” – and then that lawyer would share an even more impressively depressing case. I like to call this game: “That’s Nothing…!”.

On the face of it, this is a game that could be seen as just a competitive game between lawyers. But it has some sinister overtones, as you shall soon see. It is a game which, when played to its end, gets more and more disturbing; prompting each lawyer to search for the most extreme example they can recall. On this occasion, I kept silent until the last player dealt her finest hand – describing how the father in a recent case had beaten his child so badly that the boy had almost passed out. As is often the case in this game, the anecdote was then followed with peels of laughter from both lawyers.

I was having one of those days where I like to share some of my thoughts. I said: “you know there is nothing actually funny about that anecdote”. Firstly, I was annoyed that this game was being played out in my hearing. Secondly, there really was nothing funny about the anecdote and I was irritated by their laughter. Mostly it was the latter: they were laughing about a man who had beaten a child and I was in the mood to be quite cross about it.

To their credit, the lawyers did not get defensive. In fact, one of them tried to placate me: “no, no, no….”, she said, “you don’t understand. If we didn’t laugh, we’d cry!”.

I understand. Oh, I understand completely!

At that point I was called in to court so I never did get a chance to continue pontificating. But had I had the chance, I would have liked to at least say this:

I know that it’s hard. I know that you care a lot. You wouldn’t be here if didn’t care about people;  if you didn’t believe in what you were doing. And I know that, at first, it seems like the smartest thing in the world to avoid the tears that ought to come with each fresh story you hear. What better way to do this than to bury them with mirth and laughter? Mostly likely, you make this choice unthinkingly. It’s reactive. Just something you do because to feel hurt, defeated and dejected by the work that you do seems too much to bear.

And yet, I have two words for you: Temporary. Measure. As Hagga from Thurber’sThirteen clocks’ once wisely put it: “…there’s a thing that you must know, concerning the jewels of laughter. They always turn again to tears a fortnight after.”

Meaning – in this context…laughing at the tragic is a quick fix. And it is a time limited quick fix. It’s not sustainable. Because eventually, what happens is that you start to calcify within. Eventually, it’s almost impossible to feel horror at the stories you hear anymore. Eventually even the laughter disappears and there’s just a grey space where the colourful brushstrokes of your life used to be. In short, you wither and die on the inside.

Call me crazy but it seems far too great a price for any lawyer to have to pay. So what can be done about it? We can’t all drag ourselves about the court in tears.

It goes without saying, tears are neither an appropriate nor proportionate response for a lawyer in the face of almost all cases. It would take a very rare, particularly heart-wrenching case to bring most lawyers to tears and, even then, they are most likely to drink that particular cup of sorrow at home and alone.

But neither is laughter an appropriate response. The trick is to respond with emotional intelligence. The appropriate response to our clients and to the legal cases that we play a small part in is not sadness and it’s not mirth. The appropriate response has to be – give the matter the dignity it deserves. Treat it with respect.

Our entire court system is designed to engender a sense of gravitas in the people who operate within it. Whether this be lawyers, clerks, accused people, applicants, respondents, prosecutors, witnesses, jurors, magistrates, judges etc and so forth. Respect is what is asked from us as practitioners. Respect for the stories we handle. Respect for the people we touch and who touch us. Respect for the system that is set up – sometimes ineptly, but with good intentions – to handle these stories and to reach some kind of resolution/outcome/closure. Respect for each other. Respect for the process we engage in on a daily basis for the good of others because that is what we do as lawyers: that is our job.

I have a reputation for trying to keep things simple and, perhaps, this is another example of my desire for simplicity in a complex world but I do recommend you try it: next time you find yourself quick-fixing, replace giddy, dizzy mirth with complete presence and gravity and you will come out of it – perhaps not unscathed – but certainly a lot more grounded.

Victoria and NSW join arms in regulation

by Pamela Taylor-Barnett
red tape

From 1 July 2015, there will be new laws and regulations governing the legal profession in Victoria and New South Wales. The Legal Profession Uniform Law is found in Schedule 1 of the Legal Profession Uniform Law Application Act 2014 (Vic), and the NSW equivalent. This replaces the current Legal Profession Act 2004 (Vic).

This change is significant for lawyers in Victoria and New South Wales. Other states and territories are yet to adopt the legislation.

The changes mean that:
1. New Uniform Law will apply.
2. New Legal Profession Conduct Rules will apply.
3. New Legal Practice Rules will apply.
4. New Continuing Professional Development Rules will apply.
5. A new Legal Services Council will come into operation to implement the Uniform Law.
6. A new Commissioner for Uniform Legal Services Regulation will be brought into existence. The Commissioner will oversee compliance, dispute resolution and professional discipline under the Uniform Law. The Commissioner is also the CEO of the Legal Services Council (point 5).
7. The Legal Services Board and Commissioner in Victoria (LSBC) will continue to carry out regulatory and operational functions.

We suggest you familiarise yourself with the changes and the new rules. Whilst the changes may appear only slight in some areas, you should familiarise yourself with them as you must meet your professional legal obligations.

For more information, visit:
– The Legal Services Council website.
– The Law Institute of Victoria website.
– The NSW Law Society website.

Mind our words

By Dean Edwards

mind your words

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’ll 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 in nineteenth century turns of phrase to be concise and constructive. (Although barristers 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.

How to Handle Difficult Clients in Family Law Proceedings

by Richard Mackenzie

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The most difficult part of the family lawyer’s occupation is handling clients’ feelings and emotions during law proceedings, especially dealing with clients in high conflict divorces or child custody cases. As a family lawyer, you accept to take on a difficult client intentionally or without knowing. Such clients may push you to the breaking point if you do not know how to calm them. However, taking certain measures can be used to avoid possible disagreements, conflicts or complaints.

Make your role clear

You are expected to be clear in your representation, but if you are dealing with volatile client your role may not be that clear to them, and therefore you should be ready to explain yourself in a simple and easy to understand way. It is always prudent to be very clear when explaining the roles in order to reduce the chances of misunderstanding arising. Note that people going through these situations can be very angry and emotional and you are required to assist them find the way to overcome the tough moments. You should not take any upset personally, so long as you are doing the job to the best of your abilities. However, volatile and threatening clients should be reminded that this sort of behaviour will not help their case, and may lead to you refusing to represent them.

Be ready to explain things more than once

Be patient when handling a client who is difficult to work with. Always do your best to be clear and calm with them regarding every detail they would like to know. Avoid giving scant information in writing because the more you do so, the more likely there will be conflicts. Therefore, you need to disclose everything to your clients in order to avert possible misunderstandings. Let them know in advance what they should expect concerning their connections with you and your team. This will help them understand when to come to you or your staff whenever they need assistance. Surprisingly, clients of this nature want only to deal with their lawyer on every issue, but not the staff. However, this approach is very expensive and time consuming, not very effective and in most cases unnecessary.

Make Use of Your Staff

Your staff can help you deal with difficult clients, as they can be empathetic and may be a voice of reason, explaining legal terms in laymans language. However, do also make sure your staff are able to handle the client and they are not put in a position where they feel under threat. This happens sometimes because complicated clients are more often hard with the staff than they are with a legal representative. Deal with the matter without delay and openly with the individual you are representing regarding the unsuitable treatment to make sure that the client understands clearly the duty of staff in the representation and to ensure that such behaviour is not repeated in the future.

Be ready to manage the Expectations from the Start

Several clients have expectations that go beyond the services you are offering or the results they expect from you. It is advisable to have a forthright discussion with your clients from the start in order to know their expectations. Sometimes the clients’ expectations are not realistic and thus you should be clear from the beginning that you cannot offer that kind of service. In a situation where you cannot meet the expectations of a client, you can transfer the client to another lawyer or even ask the client to look for another family lawyer.

It is more crucial to be honest with the people you represent if you find that their goals cannot be achieved. When a client cannot accept your evaluation of the issue, then he or she should find another legal representative.

 

Richard Mackenzie is a senior partner at Eales & Mackenzie, a reputable legal firm in Melbourne, specialising in the areas of commercial law and property law, commercial litigation, wills, estates and estate disputes and family law. He employs a personalised approach to his cases and holds an unrivalled reputation for establishing long-lasting relationships with his clients.

On the use of magic with difficult clients

by Bernadette Healy

magic

Provide a person with a genuine opportunity to tell their story without judgement or criticism and many of your ‘difficult client’ issues will magically disappear!

Most people want the chance to tell their story. When in the midst of a challenging time – which will be the case for most people in the midst of a legal dispute- the need to tell one’s story may feel quite urgent. Under duress, however, some people react with aggressiveness or intense frustration or even withdrawal and this behaviour is likely to impede the very kind of interaction that will enable them to tell their story – thereby denying themselves (and you!) the related stress-reduction benefits. In addition to turning you off – either by distancing you, or frightening you or annoying you by their seeming inability to listen – they are likely to be participating in a self-fulfilling prophecy kind of cycle which triggers long-held unhelpful core beliefs. Examples of such beliefs include: that they are not worth being listened to; that they cannot cope with frustration; or that all people in authority will hurt them. Core beliefs are developed early in life and are typically reinforced in complicated patterns of intensely felt uncomfortable feelings, triggered reactions, avoidance behaviours and further cementing of the core beliefs.

It is also quite likely that your clients have experienced many people before you who actually did not listen to them often enough (or even at all!) and may therefore enter new (and stressful ) situations with the expectation that this will continue. The type of behaviours which lead to someone being described as a ‘difficult client’ may have developed over a lifetime. You of course cannot impact this history but you can become an exception to their previous experience – and that is the kind of moment that can lead to personal change.

Do not discount the value of the interaction – a situation can be more or less traumatic regardless of the actual outcome, purely due to the nature of the interpersonal interactions along the way. That is, even in the non-winnable situation (sigh), you can make a long-lasting and positive impact which will actually reduce the recovery time for the client (and probably yourself also!).

Prepare for the conversation including reminding yourself that you may be about to go into a potentially difficult situation but also allowing for the possibility that you may not. Don’t take your lead from a secondary source. That is, pay the individual the respect of meeting them freshly rather than forming a judgement based on what someone else has told you.

Be aware of the kinds of situations that may trigger a reaction in you regardless of the individual. That is, reflect on times of difficulty in your own life, and consider the possible work cases that could pull you in to a reaction that is not about the client, but actually about your own stuff.

Put aside your agenda, at least temporarily, take a deep breath, sit in an open manner and invite them to tell you how they are going and what they would particularly like you to know. Remember you are not responsible for their problems. You are responsible however for listening effectively and for promoting a good working relationship. Try and ensure their privacy for conversation. If they are so aggressive that you are nervous of your physical safety, ensure that you remain in an area where you have access to others but try and move to one side of the area to provide a sense of concern for their right to confidentiality.

Treat each client equally (and positively!) regardless of their status. You will be amazed at how soon people will modify their behaviour when they are treated as if they truly matter. And a bit of equalizing behaviour never goes astray for those apt to think that they are above the unruly hoard either!

Be prepared to admit when you don’t know something. Acknowledge their frustration / anger / distress. This does not equate to agreeing with them. Also this does not mean that you have to put up with ongoing dis-respectful behaviour. Inform the person of your expectations and the consequences. For example wait for them to calm down and then tell them what will happen if they become abusive again – for example – that you will leave the room / the meeting will have to be postponed / you will have less time to attend to the issues of the case / have to hold all conversation in public area etc.

Don’t promise anything that you cannot deliver and do not promise something which another person is responsible for delivering, unless you have ensured that that is the case. Aim to be the one whose behaviour de-bunks their negative expectations.

Remember that ‘difficult people’ – for often tragic reasons – may try and make the difficulty about you. You need to ‘hold the line’ – that is, stay calm, allow the ‘white noise’ comments to float past and wait. (If feeling vulnerable, remind yourself internally of your strengths, your experience, your right to be there in that professional capacity.) Eventually the emotional reactivity will subside and a comment will be made to which you can honestly and professionally respond. This may take some practice and patience but it will be worth the effort.

Is it necessary to become ultra aggressive and ruthless to be successful as a lawyer?

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Q:

 
Dear NLL,

I am currently working in a commercial firm in Bangkok where I am obtaining a sign off for the legal practical component of the GDLP and would like any guidance/thoughts you may provide.

Essentially, my boss has an ultra-aggressive style and encourages all of his staff to be proactive and aggressive. He often micromanages and humiliates his staff, sometimes at group meetings and sometimes over mass email, cc’ing nearly the entire office. Since arriving I have found there is a very high turnover rate of staff due to the working conditions.

I had dinner with my boss last night and he said he could size me up: he predicted I was an only child with very supportive parents etc. He then went on to explain that he needs me to be more proactive and aggressive and will ‘toughen me up for the big bad world’.

My question is: is it necessary to become ultra aggressive and ruthless to be successful as a lawyer? Should I really be forced to change my personality – I have succeeded in other workplaces (admittedly many were short term internships) without having to do so. And if this boss can ‘size me up’ so easily, does this mean he could manipulate me down the track? He appears to have a habit of playing good cop/bad cop and has already threatened not to supervise my GDLP sign off. Is this part and parcel of practicing commercial law?

I’m sorry if these questions are a little broad or misdirected, but any guidance or thoughts you might have would be greatly appreciated. I’m at a stage now where I am thinking of whether to stay in this job or take up an offer for a junior position back in Oz.

Nathan

A:

 
Dear Nathan,

Firstly, I want to share with you that you will often come across “personalities” in the workplace and, for reasons that I can only guess at, the more difficult ones (read sociopaths) always seem to rise to the top and assume positions of power.

On the little information you have shared with me, it seems that your boss is one of these people. Not only does his style of relating sound off-putting, but he also appears to lack an understanding of what is required of a professional in a workplace setting. His behavior to your colleagues is despicable. It’s also totally unacceptable for him to try to “sum” you up, as if people are not complex creatures that cannot be even guessed at, let alone truly understood, at short and superficial acquaintance.

What this means is that you mustn’t take anything he says as a reflection on you. It is clear as day to me that this man has his own array of problems that are infecting his work and his capacity to manage and mentor in an appropriate and effective way.

Your instincts about him are spot on. You must, therefore, guard against your own personal fears that there may be some truth in what he says about your needing to be more ultra aggressive to be a good lawyer.

I can assure you that you do not need to be aggressive to be a lawyer. Yes, it helps to be able to have an aggressive bent at times if you are planning on being an advocate. Advocates “advocate” – they go in to fight for someone’s rights and by its very nature, the adversarial system will require from advocates a certain demeanour – a fighter’s stance if you like – among many other things. Mind you, generally, I teach advocates to use this very, very sparingly so, in reality, I don’t place too great an importance on it. Advocacy is also a very small part of legal practice. Most matters are dealt with by way of negotiation where your personality type (as you describe it) is in much greater demand.

You have succeeded in other workplaces because you are intelligent and competent. That’s all that you need to be a lawyer. You are probably a great worker to have on board too. I’m betting you work hard, create few ripples and that you’d never be responsible for drama in the workplace. That this particular employer cannot appear to appreciate your unique contributions again says something about him. Not you. The evidence is there – you’ve done just fine before.

Whilst it would not be appropriate for me to advise you to move employment, I make the following points:

  • You have another job – as I understand it – waiting for you in Melbourne. That is a position other graduates would really envy.
  • You have to spend a lot of time in the workplace and if it is a toxic place for you, it will impact on you negatively. It sounds to me like it already has.

Only you can make the decision about whether to stay or go. I would only advise that you ultimately set yourself the goal of seeking employment in a place where you can be your authentic self. Firstly, it’s a gift that other people deserve. Secondly, it’s what you owe yourself anyway.

I hope this assists in some way.

Arna