The Legal Craft

By Dean R P Edwards

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Clunky, imprecise and obtuse, poor legal writing is not an uncommon sight. It frustrates the layperson as much as the lawyer whose job it is to untangle the knots of ill reasoning and deadweight diction.

How often then do lawyers remember that they are craftsmen?

Perhaps because legal writing is highly technical, and often formulaic, some lawyers may think of themselves as technocrats and less as craftsmen. But the discerning lawyer is as much a craftsman with her writing as the tailor is in fitting a suit and the violinmaker in carving her wares.

Every letter, e-mail, memorandum and the like should reflect an artisan’s touch.

Reading the American sociologist Richard Sennett’s The Craftsman (a highly recommended read) brought to mind the importance of thinking of our work as a craft. So I would like to propose that the lawyer as craftsman can be an important exercise in self-reflection.

Any craft demands patience and expertise, neither of which comes without discipline and practice. More importantly, we should derive pleasure from the work itself, and not treat each task, once completed, as another one off the list, or mere means to the next pay-cheque.

Our goal as legal craftsmen lies somewhere between pith and precision. Often the task at hand easily accommodates both (despite perhaps our struggles). At other times, the waypoints are seemingly irreconcilable. Legal writing today has largely shed its more florid diction; the difficult task remains how do we capture meaning in the words we do employ.

Sometimes, clarity requires a robust brevity, which is to say that our focus might not only be diction, but also sentence structure (syntax). That should be readily familiar to lawyers: after all, what is statutory interpretation but inexhaustible parsing of words and structure?

In this sense, legal writing is distinct from, say, the journalist’s daily labours. Our writing may come in torrents of momentary genius or on the cusp of a critical deadline. But more often than not, we whittle away at a block of text with careful precision, and spend a considerable amount of time fine tuning the choice and placement of our words.

Legal writing may seem formal, and our critical reasoning cool and detached. Yet the legal reasoning underlying our writing requires empathy and contemplation in order to thrive. Legal writing without those qualities is soulless, and soulless craft should be left to the auditors’ spreadsheets!

Like every craft, written communication is also a reflective exercise. What we produce has an indelible effect on our conscious and unconscious working lives. The trained mind is responsive to an audience’s needs and is, in turn, more critically aware of strategy and argumentation.

It is worth reminding ourselves that the task of writing is not its own end. Legal writing is a means of conveying knowledge and persuasive argument. There is always an audience to inform or convince, whether that person is an officer of the State or the Court, or a layperson.

The quality of our legal writing will determine whether we are up to the task.

Doctoring the law degree for our times

By Dean R P Edwards

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There are many aspects to the legal profession worthy of our scrutiny. Some of the more minor aspects, however, may pass under the radar unless we pay attention to detail.

For instance, what of the Juris Doctor (J.D.)? An invention of Harvard Law School in 1870, the degree is the professional equivalent of the M.D. Yet we don’t refer to our lawyers as doctors. (That is, in Australia or the U.S.: some Europeans, among others, apparently do call their lawyers doctors!).

Given today’s full fee degree goes for the price of a first home mortgage, that oversight, whether purposeful or not, seems to give short shrift to those of us who laboured through three gruelling years of graduate education, on top of three or four years of undergraduate studies.

The Americans, to their credit, allow their lawyers to affix Esquire as a post-nominal title, which seems to flout the traditional privilege of the genteel class. It may also mislead non-lawyers in the belief that their advocates are of gentle birth. But I suppose the American tradition harkens back to the days when lawyers were of the gentlemanly class.

The Melbourne J.D., for example, does incorporate a degree of research work, so what should one make of the doctoral status? Perhaps we should disabuse ourselves of the doctoral status and re-nominate the J.D. to stand for “Degradus Juris”.1 Simply put: the law degree.

And for the sake of plain speech, let’s also tidy up the remaining LL.Bs and their graduate relative, the LL.M.

The “LL” owes to the Latin practice of doubling the abbreviated word to indicate the use of the plural form. Therefore, legum baccalaureus, the Bachelor of Laws, becomes the LL.B. (However, it remains to be explored as to why the Bachelor of Arts, for example, is abbreviated “B.A.” and not “B.AA” or “AA.B”.)

I propose that we dispose of the snobbish, interloping “L”, or instead use the singular “law” in Latin, “legis”, to produce the “L.B.”. Given Latin’s flexibility and, for instance, the custom of putting “B” before “A” for the Bachelor of Arts, we could also refer to the reconstituted undergraduate law degree as the “B.L.”

Some might consider the above proposals as themselves superfluous. However, I highlight only that these proposals are made in the spirit of plain speaking and simplicity that we seek to bring to other, perhaps more important aspects of the law.

Besides, sons could finally placate their anxious mothers: “Look, Ma, I’m a doctor and a lawyer!”

1  Although the new term might call attention to the etymology common to “degree” and “to degrade”: not that one would mean to degrade the profession by simplifying its terminology!

Family laws and sliding doors

by Mike Wells

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Hi to all at NLL. Here is another instalment from me!

It has been on my mind lately that we shouldn’t keep doing things if they don’t work: Life is too short.

My thoughts descended on a poem I learnt whilst idly letting my mind wander for a few years at Uni doing an Arts degree. It is called “In a Station of the Metro” by Ezra Pound and is coming up for its 100th year anniversary – but don’t worry, it has only 14 words!:

The apparition of these faces in the crowd;
Petals on a wet, black bough.

So, life is short. And beautiful. And dark. And everything else in between. And we are constantly observing all of this. So why do we keep doing things, seemingly waiting for someone else to take the lead, when we know there might be a better way?

Now you readers who have caught any of my blogs or indeed spoken to me in the last 5 years will know that I am very much focussed on family law situations and particularly situations of high conflict. So perhaps all you commercial litigators may want to tune out about now?

Hopefully not.

This blog is centred on the struggle for us as a society to find more humane ways of responding to abhorrent and otherwise inappropriate behaviours, without necessarily thinking that lawyers and courts and old school litigation is the only pathway through. I think we can learn a lot by looking at what many might think of as more primitive societies, where a communal, tribal response was the norm.

But for some reason we have not generally valued this approach, and as a society when there is a perceived or actual need to respond we have been more inclined to involve complete strangers in peoples’ lives (be it counsellors, police, lawyers, judges, etc). We then set off on a completely new path, to the “search for truth” and “for revenge” and “to vent our anger and hurt” in a forum where (at least in the family court, and certainly in the minds of many lawyers) it is a battle of attrition rather than looking for and valuing the ability of such ‘strangers’ and others who arguably are more invested in fulfilling such roles. What I am saying here is that we as lawyers should be more mindful about caring for the impact of the process that we are subjecting our clients to (and not forgetting we ask them to pay us for the ‘privilege’ of so doing).

Another point is that we as lawyers (and barristers and judges) seem to chronically under-acknowledge the damage that can be inflicted on a family by bringing them within the institution of the traditional legal system. For example, why do we as a society permit 20-something-year-old law graduates to think they know more about a family and what is appropriate and necessary for the members of a family, just because they know the law? It is not the fault of such lawyers (who are not necessarily only the 20-something-year-olds, either!) by the way, because my point is that potentially many family lawyers have not had the insight or life experience of trauma, tragedy, loss, and basically have not (you might say fortunately!) had to learn the life lessons of truly understanding and appreciating the impact of a badly handled family law matter where thousands of dollars, years of peoples’ lives, and the unknown impact of significant and sustained trauma and stress of emotionally charged litigation has ensued – and most tragically – has actually been encouraged and exacerbated by some lawyers.

Now, I acknowledge that this is a fairly inexact science because without the benefit of overlaying a “sliding doors” (I love that movie, btw) technology, we never see the actual difference between a family that has endured the cut and thrust of litigation, compared with, say the same family engaging in an interdisciplinary team collaboration. But I say why should we keep this cycle of potential damage spinning along, when it is arguably easier and more humanistic to (say) reverse the thinking and forcibly direct all family law clients to work with lawyers who have been accredited with skills and abilities to work with other professionals in a co-ordinated framework and structure that is geared toward building foundations for the future, instead of going to war?

Why can’t we take lawyers and courts out of the traditional dynamic and instead respond to family and couples who are experiencing the trauma of a separation by recognising the inherent value of using psychologists; financial advisors; counsellors; child experts AND lawyers (but to name a few) to respond in a holistic family focussed way that is consistent with the notion of cherishing and valuing the beauty of children and of a society that genuinely cares for the individuals within it.

So my message is to be a good lawyer, for sure, but don’t ever forget the bigger picture.

Word Crimes

by Mike Wells

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

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

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

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

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

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

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

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

Cheers, Mike

Randall Kune

Newlawyerlanguage Photo Kune

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

Most good lawyers have had at least one mentor who has inspired or guided them in one direction or another. In fact, it is important to cultivate mentors to develop resilience as a lawyer. One of my great inspirations was my high school legal studies teacher. He was an extremely engaging man. He had a captivating presence in the room, and his commitment to his students was palpable. I remember vividly his robust interactions, and the dry wit of an intelligent, compassionate but slightly cynical humanist. He skillfully combined vision, realism and humour in a way that made you want to learn. In his class, I first felt the urge to practice law. I caught up with him recently at a law school alumni dinner and it was a very proud moment.

One of the risks of having many mentors is that you may get conflicting advice. This recently happened with one of my students, who had received some guidance from me about court appearances, and contrary guidance from another legal practitioner. I can say that the benefits of having mentors far outweigh the difficulties. The only way to deal with the difficulties is to acknowledge them, and recognize that advice is merely a suggestion based on personal experience and training. Everyone has different experiences, and one lot of advice may help you, whilst another may not. If you find it helpful, use it! If you don’t, file it away in the back of your mind until a later time – you never known when it might make sense.

What makes a lawyer a great lawyer?

I am afraid that my conception of a lawyer is skewed very much in the direction of a litigation lawyer. Despite being a Nationally Accredited Mediator, much of my time is spent in court, representing parties to litigation.

A great litigation lawyer is able to quickly perceive the broader picture of a dispute as well as pay special attention to the detailed facts. They have a deep understanding of what motivates humans, and can become temporary experts in the subject matter of any litigation in which they are briefed. They present the client’s case fearlessly and robustly in court, and at the same time encourage the client to resolve the dispute without the need for a contested hearing. They work co-operatively with their opponent, whilst maintaining their duty to the client, to further the efficient administration of justice. In sum, they are balanced in the exercise of their duties to the court, to the client and to the administration of justice, but they exercise those duties with a passion, a focus and a seriousness of purpose beyond that of any other profession.

Finally, let’s not forget good manners. It is easy, in the heat of contest, to become emotionally attached to the outcome of your case. This can lead to discourteous or even unethical behaviour. A great lawyer is always respectful of the court and court staff, of opposing counsel, of witnesses and of the parties to the proceeding. Courtesy breeds respect and co-operation.

How do you balance work and life?

The major difficulty in establishing and maintaining a so-called work/life balance is to recognize that it’s out of whack in the first place. After all, being a member of an independent bar is a vocation, or calling. That is why becoming a barrister is referred to as being called to the Bar. It comes with a sense of duty to further the administration of justice, to act honourably in the performance of that duty, to always aim to perform at one’s best and to a minimum standard of professional competence, and to meaningfully contribute to society.

In this sense, your work (or your membership of the profession) tends to become a foundation stone of your identity; it becomes, in part, the source of who you are. The intensity can make it easy to lose your balance. My advice? Always have a hobby which is beyond law and lawyers – something which keeps you in touch the life of ‘real’ people, people who don’t spend their lives developing arguments in their heads about how past events should be presented and interpreted and then debating it. Time and again, it is the quality of our relationship with our family and friends that keeps us happy and grounded, not our number of hours billed.

What attracts you most to the profession?

I would mention three things.

First is the sense of helping people solve their problems. Ironically, as a litigation lawyer, it is vital to recognise that most problems are better solved without litigation. Yet when disputes require judicial resolution because the parties simply cannot agree to settle, then it is a privilege to be entitled to represent them before the judicial arm of government. It provides a great sense of achievement.

The second is flexibility in work hours. At the Bar, it is possible to set aside time when you will not take on briefs, and though you don’t get paid for the time you don’t spend working, the upside is that you have control over your working life and you can allocate time to your family, friends or other pursuits.

Last, but certainly not least, are one’s intelligent and innovative colleagues, who have a great sense of humour. It is inspiring to spend the working day amongst some bright sparks. It would be hard to spend the lengthy amount of time intensely negotiating or appearing in court with my colleagues if I also didn’t enjoy their company.

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

Tot mala iocos Quid faciemus?*

*Translates roughly as: ‘Why are we the butt of so many bad jokes?’

Randall Kune is a Barrister at the Victorian Bar, a Nationally Accredited Mediator, and a Senior Fellow at Monash University Law School. He has been in practice for nearly 20 years, and regularly trains and assesses law students, lawyers and new barristers in advocacy, evidence and procedure.

Avoiding the double sting: Letters of Demand

by Pamela Taylor-Barnett

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It probably goes without saying that when your conduct as a lawyer is poor, you can be subject to discipline from the Legal Services Commissioner. But what if your actions meant a ‘double sting’?

The ACCC and ASIC also have powers where a lawyer’s conduct breaches the Competition and Consumer Act (CCA), for instance. In October 2011 the Federal Court found a Victorian lawyer guilty of misleading and deceptive conduct under s.18 of the CCA. So, she faced the sting of the ACCC and the sting of the LSC.

The lawyer, Ms. Sampson, had sent several letters of demand claiming that if legal proceedings were commenced the debtors would incur ‘significant legal costs’. She also had made statements about being entitled to recover costs and being able to use warrants, when such matters are a discretion of the court only.

The ACCC brought an action for misleading and deceptive conduct. The Federal Court issued a five year injunction on Ms. Sampson practising in a bulk debt collecting practice, imposed a $30,000 costs order and ordered she take corrective advertising (that cost her $14,000). Her own counsel’s fees were over $75,000.

Taking into account these already severe penalties, the LSC reprimanded Ms. Sampson on the charges of professional misconduct. She was required to obtain two additional CPD points in Ethics and Professional Responsibility for two years and to pay the half of the LSC’s party party costs.

So what’s the message?

  • Don’t exaggerate in a letter of demand. Read your letters carefully, could they be misleading?
  • Don’t say something is a definite consequence when it’s only a possibility.
  • Don’t say you are entitled to something unless you are certain you do.
  • The Law Institute of Victoria wrote us some guidelines – read them.
  • Take the time to know your Conduct Rules.
  • ASIC have Debt Collection Guidelines for collectors and creditors – read them too.
  • Err on the side of caution when you’re unsure and use precedents like the ones in the LIV guidelines.

Who do lawyers work for?

by Mike Wells

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

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

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

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

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

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

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

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

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

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

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

*Updated on 2/6/2014

Samantha Marks QC

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

I wasn’t one of those who dreamed of the law from an early age. In fact my childhood dreams included being a nun (I had loved Audrey Hepburn in the movie A Nun’s Story (the fact I wasn’t Catholic was a slight problem), having lots of children to run through fields of grass with (pretty much Julie Andrews in The Sound of Music) or being a doctor. I was heading towards medicine when I realised at the end of year 11 that I did not much like the sight of blood and might need to rethink this choice. Then in year 12 I saw that there was a public speaking competition at my school. The first prize was books. I was an avid reader and no one else had entered from my school so I put down my name hoping to get the books. I won the books (as the only entrant at my school)! I then went on to win the regional competition, and finally represented Victoria in the national finals of the Australia Britain Society public speaking competition, held at the Sydney Opera House. It was heady stuff for a sixteen year old who at that stage had very little idea what she wanted to do. At that point I started to think that a career where I was paid to communicate well might be wonderful. I also wanted what I did to mean something, and to be able to help people, and law seemed to fit the bill.

What attracts you most to the profession of law?

It is always interesting. It involves people and the fascinating conundrums that develop every day in their lives – both business and personal. People come to see you when they are facing problems and you have the opportunity to make a very real difference to them by the way you handle their cases. The fact gathering and legal analysis and research you bring to the task can make all the difference to winning or losing, and it is very stimulating. The law itself keeps evolving, and there is always more to read, analyse and learn. I love the logic of the law, the problem solving involved in trying to find a way to best present a client’s case, the satisfaction of seeing the client relax a little as they realise you know what you are doing and are across the detail of their case, and the pleasure of trying to get the best result possible for them, whether by negotiating a settlement they are happy with or by fighting a case to the end. From the first time a case lands on your desk, to the conferences where you find out as much as possible about it, to the legal research and drafting, the negotiations, and the advocacy in court: it is all challenging and interesting. And you don’t need to watch daytime TV to see the range of human behaviour and interaction!

What are your passions outside of the law?

My family (including three children aged 12 to 19) and friends, writing, reading (all sorts of genres), history, drama, yoga, and finding out more about how people tick. I didn’t study psychology at school or university but have read and learnt a lot about it since. Understanding people and their motivations can make a big difference to outcomes in litigation -as well as life generally.

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

I would come to the Victorian Bar at the age of twenty-four all over again. I recently realised that I have been a barrister more than half my life. I have loved it.

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

Work as hard as you can on each case you take on because there is no substitute for good preparation – your client depends on you and you never know where that ‘killer’ winning point is lurking in all the detail – but along the way, keep making time for the other people and things that matter in your life. Is that two pieces of advice or one? The two are so intermingled I am going to treat them as one. You can’t work hard if you are continually exhausted; you can’t bring the intensity and interest you need to bring to your cases if you are not happy; and what is the point of having a great career if the rest of your life is awful? In the end you only have one life and you are in the driving seat – why not decide to do what it takes to enjoy that life, and to make your life (and career) work for you? It takes stopping to think about the balance every now and then, and sometimes ramping up work, and at other times adjusting what work you take on so you also have time for family, exercise, a coffee with friends, a break, and for doing things you love to do.

What would you say are the hazards of this profession?

First, the fact that you are dealing constantly with people who are in strife of one sort or another, and at times that can give you a skewed view of the world. Secondly, the pressures and need for long hours at times. When a trial needs preparing, and deadlines are looming, the work has to be done – and done well – whether you are tired or busy on other matters or not. Sleep can suffer for a while at least.

Is the reality of being a lawyer anything like how you imagined it?

I grew up watching LA Law, Rumpole and Ally McBeal (all of which dates me enormously now). Some of what I thought the law would be like from watching shows about lawyers still holds true though – the tactics, the drama of court, the great cross-examination questions, the chance to make all the difference to someone’s case. What the TV and movie dramas never showed – and still can’t or no-one would watch them – is the hours, days and even months of work that goes into those few exciting moments in court. There is much more time spent preparing for cases, drafting submissions and pleadings, and planning how to run them, than I appreciated. As a commercial lawyer a large percentage of cases never make it to court and the best result you can get for a client is often a great settlement negotiated outside of court. The satisfaction of being a lawyer, though, is much higher than I ever dreamed.

How do you balance life and work?

I stop every now and then and take stock, to make sure my life includes all the different parts that matter to me and that it doesn’t get out of whack for long periods of time. Whatever work I take on I do to the best of my ability, but I make sure that I don’t continually take on so much that I don’t have time for the people and other things that matter to me. (An easy test is that I usually feel a thrill of pleasure as each new matter comes in, I unwrap the pink ribbon around it, open the brief and start thinking about how to approach it. When I feel exhausted, that thrill isn’t there: it is yet another thing to add to an already too long ‘to do’ list. At that stage I know I need to schedule some time out – even if it is for after a busy patch, it gives me something to look forward to. I like the saying “When you say Yes to something, what are you saying No to?” Sometimes saying yes to too much work at once means saying no to all the other things and people that matter (including sleep, exercise and good health). That price is too high to maintain long term. In a practical sense, when necessary I schedule time away from work, time for exercise and coffees and time with friends and family in my electronic calendar as carefully as I schedule work commitments. Things get rescheduled, but having them recorded makes them more likely to be kept. For me, ‘balance’ doesn’t mean each day is balanced neatly between work, family, friends and time to myself – but that looked at over the course of days, weeks or even months the different aspects I want to have in my life are happening. And if they aren’t, I do something about it.

Samantha Marks QC has been a barrister at the Victorian Bar for twenty-five years. She took silk in 2010. She principally practices in commercial law, probate and TFM matters, in the Supreme and Federal Courts. She is also an accredited mediator, a member of the Victorian Bar Council and a past Convenor of the Women Barristers’ Association. Her legal blog ‘SamanthaMarksQC’ is at http://www.samanthamarkssc.com.

Movie Review: Changing Lanes

by Finchley Atticus

Changing lanes
Changing Lanes
 (2002, 99 minutes)
Finchley’s Rating: 9/10
Director: Roger Michell
Lead actors: Ben Afflek, Samuel L Jackson, Toni Collette, Richard Jenkins
Genre: Drama/Thriller
**Minor spoiler warning**

 
One hallmark of most of the American Bar Association’s 25 Greatest Legal Movies is the “climactic court scene”.  Cue Jack Nicholson’s unforgettable “You can’t handle the truth!!” in A Few Good Men.  We have Al Pacino’s impassioned retort to the judge “You’re out of order!!”.  Who couldn’t be moved by Santa’s sack of mail delivered to the incredulous judge in Miracle on 34th Street, the key evidence ensuring Christmas would endure forever despite finicky prosecutors who should be chasing the real criminals deserving of the electric chair?

One movie that should be on the ABA’s list is Changing Lanes (2002).  Yet it’s a movie with no climactic court scene.  In fact, the court scenes feature early on in the movie for about only five minutes.  It’s a thoughtful and sober movie that the distributors strangely marketed aimlessly towards the high octane Fast and Furious crowd expecting to cheer at the rage and vengeance on the road between two protagonists arising from a fender bender.  Yet the protagonists are on New York City’s roads for maybe five minutes, with much of the anger and retribution really percolating in a Manhattan law firm and fine dining establishments.  You will probably see more action in a Power Rangers movie than in Changing Lanes.  Significantly though, for any lawyer in any area of legal practice, it’s an intelligent movie that focuses on raising realistic legal ethical issues that make us reflect upon our professionalism, our role as advocates and, fundamentally, our approach to legal ethics in practice.

Ben Affleck – who a decade later earned his directing stripes helming the acclaimed Argo – is Gavin Banek, a rising partner in a New York law firm.  At the urging of his superiors, he rushes off to probate court to file documents relating to a multi-million dollar foundation for a recently deceased client.  On his way to court, he has a fender bender with Doyle Gipson, a recovering alcoholic insurance salesman, played with intensity by Samuel L Jackson.  Coincidentally, Doyle is on his way to court seeking joint custody of his two sons.  Fortunately, neither Gavin nor Doyle are injured, but both are in a hurry to reach their court appointment on time, with much at stake professionally and personally.  For Gavin, the filing of the documents will ensure control of the foundation remains the hands of his superiors at his law firm.  For Doyle, it means a brighter future with his kids and possibly his estranged wife.  Initially the protagonists are polite on the road (sorry, no swinging of punches or rude hand gestures here) and Doyle wants to “do the right thing” and exchange insurance details with Gavin.  It’s here that Gavin does the wrong thing by hastily giving Doyle a blank cheque, which Doyle refuses.  Gavin does not care and speeds off to court leaving Doyle in the lurch.

It’s only when Gavin reaches court on time that he realises he accidentally left the all-important power of appointment (which the judge wryly describes as having “great magical power”) with Doyle following the fender bender kerfuffle.  Whoops.  A lawyer’s worst nightmare and something we hope never happens.  The judge gives Gavin until 5pm to find the power of appointment.  To make matters worse, Doyle turns up late to the joint custody hearing, resulting in the judge granting sole custody of the children to Doyle’s wife.  Double whoops.

Gavin’s attempts to be contrite and remorseful towards Doyle is the start of the escalating vengeance between the two – as Gavin really needs that power of appointment.  It’s from this point that Changing Lanes goes to the next level by raising a spectrum of legal ethics issues in a nuanced and subtle manner.  One realistic aspect is that Gavin and his colleagues wrestle with these legal ethical issues in the confines of a law firm rather than in the court room (really, it doesn’t often happen that your client will whisper to you in court “I’M REALLY GUILTY!”); no formal conferences with agendas to discuss ethical rules. Rather Gavin raises these ethical issues impromptu in the offices of his superiors (played by Sydney Pollack and Richard Jenkins) or his associate colleague Michelle (Toni Collette) who still maintains affections for Gavin, as they once had a brief affair.  Gavin wrestles with the fact that he may have induced the elderly and now deceased Simon Dunn to sign the power of appointment for the foundation, at a time when Simon’s mental capacity was diminished and was incapable of making an informed decision.  Gavin is especially affronted by his superiors’ proposal to forge Simon’s power of appointment, as they argue that’s what it means to be a partner, with one of them dismissing Gavin’s moral concerns “to hell what you think about your high school ethics class!”  Actually, ethics is taught at law school level, but you get the point.  To make matters more complex, one of the superiors happens to be Gavin’s father-in-law, raising the “is blood thicker than ethics?” issue.

It’s only when you analyse a movie script that you realise that most characters will spout usually one sentence at a time.  Watch Changing Lanes for its powerful (and even frighteningly persuasive) mini-speeches on legal ethics and the human character.  The mini-speech by Gavin’s wife Cynthia at lunch, where she understands she married a Wall Street lawyer, and is in no doubt she expects Gavin to find ways to cheat as a “Wall Street lawyer”.  Savour the speech by Sydney Pollack’s Stephen Delano who can live with himself because he does “more good than harm – what other standard is there to judge by?”  Well of course we have our professional conduct rules for one thing.  Stephen presses the point to Gavin when he discloses that the multi-million dollar foundation was established by Simon as a tax break, and profited from people working in high pollution chemical plants in Mexico.  This raises a key issue for any legal ethics class.  Being an ethical lawyer does not necessarily mean we have ethical clients, and one can’t help wonder whether unethical clients unduly influence a lawyer’s ethical framework.

Changing Lanes was directed with much skill and sensitivity by Roger Michell, who earlier made a name for himself by directing Hugh Grant and Julia Roberts in Notting Hill.  Maybe it’s because of the director’s British background that rainfall regularly features in the movie (there’s even rain, well sort of, featured in a key scene at Gavin’s law firm!).  Yet the rainfall adds an appropriate sombre atmosphere to this highly recommended movie.  Changing Lanes is a movie that deserves a place in the canon of must-see legal movies, and certainly warrants watching and debate in any legal ethics class.

Changing Lanes image from IMDb

Country Practice

by Joel Orenstein

Whilst at a recent event at the Law Institute a fellow practitioner introduced himself and we struck up a conversation. When I told him that I was now back practicing in the city after working in regional Victoria over the last 7 years, he began to reflect on the time he had spent practicing law in the bush some 20 years previous.

He noted with a sense of nostalgia how congenial, civil and generally good-natured practitioners were with each other in the country, even when on opposing sides of hotly contested matters. He further lamented how his experience in legal practice in the city was so rarely like this – that oftentimes interactions with other lawyers were replete with posturing, obstruction, rudeness and aggression. He wondered whether it was a city/country thing of whether it was just in his area of law that was like this.

I shared with him that this had also been my experience of legal practice since returning to the city – that the default mode when engaging with another practitioner seemed to be aggression and opposition, as opposed to shared experience and problem solving. I went on to explain that I felt there was a real sense of heaviness in city practice that simply was not present during my time in the country

After our interaction, I began to ask myself what is it about legal practice in the country that makes practitioners seem to treat each other so much better? Is it that in the city the game is played that much harder that there is no room for softness? Is it this same hardness that seems to lead to such poor mental health outcomes amongst the profession?

What makes country practice kinder and more gentle? After all, the law is the same in the city and the country, as are the prerequisites of practice. Apart from the specific details of legal matters, the casework is also largely the same. It appears to be practiced by human beings in both city and country. Yet it also appears one default approach is congeniality and the other is opposition and defiance.

Although my observations of country practice are purely anecdotal, and no doubt largely subjective, I wonder if my conclusions about how law is practiced in the bush are reflective of a culture of practice that leads to generally higher levels of contentment amongst practitioners there.

In terms of a successful and fulfilling legal career, the city has many attractions – but the culture of practice in the city is certainly not one of them. I’m not suggesting that we should all up and move to the country – but I do believe we can all do something to improve the way law is practiced here. We actually have a choice about how we treat each other and what type of environment we want to work in. That choice can be practiced in each and every interaction, be that with fellow practitioners, our kids, our neighbours, our husbands and wives, or those who serve us our morning coffee. We can also exercise that choice regardless of how we ourselves are treated. We can refuse to engage on a level of aggression and emotional reactivity no matter what the apparent provocation or justification.

Some may suggest that treating others with kindness is pie in the sky – that really what I’m advocating is that we all become pushovers and that the only way to meet aggression is with aggression. That there is a reason that we practice law like this in the city and that those that don’t like it just need to harden up. What this view fails to recognize is that we have been unsuccessfully attempting to deal with conflict through aggression since year dot.

The reality is that the country has a lot to teach the city, and not the other way around. Treating someone with dignity and respect, and in doing so acknowledging our shared humanity, is not a sign of weakness. It is quite the opposite. It demonstrates a level of emotional maturity and wisdom, which has real positive power for change. This not only makes us happier but extremely effective advocates.

Image courtesy of Clare Snow – flickr