I’ve played piano and violin since I was a baby. I write a fair bit of music. I’m pretty into musical theater, I’ve been the musical director for three shows and also done a lot choir. My three shows are Rent, Spring Awakening and the last one I actually wrote and arranged the music for it, so that was pretty cool.
I have been coaching new lawyers for many years now, either in group workshops, or privately as an individual, and the one conversation that I can always count on having is the conversation about judicial bullying. Whilst not every new lawyer has experienced judicial bullying, most have, and the ones that have not experienced it directly have seen it happen to colleagues and live in fear of it happening to them.
Alarmingly, those that report having been bullied by judicial officers, describe their experience in terms that are almost identical to how victims of verbal and psychological violence in a domestic setting describe their experience. For instance, they talk of being frozen in the moment, unable to respond for fear of exacerbating the bullying, being unable to flee (as a practitioner cannot leave the Bar table without permission) and feeling sick to their stomach, distressed, and sometimes unspeakably angry, but at the same time feeling completely unable to defend themselves adequately due to the power imbalance between them and the judicial officer. They speak of being so thoroughly humiliated that they have sometimes resorted to taking days off after the event. They speak of having a sleepless night or two where they mentally run through everything they have done – should I have said this? Maybe I shouldn’t have said that. They think if they can identify what it is they have done to deserve the bullying, they can make sure they don’t do it again and they will therefore not be bullied in the future. Usually they then speak to me of plans they have come up with to try and stave off the next bullying attack. Finally, they ask me hopefully if I have any tips for them. I never enjoy the look of fear and disappointment that crosses their faces when I advise that actually there is nothing they can do to stave off the next attack. Absolutely nothing.
Relying on the lived experience of new lawyers that confide in me, judicial bullying often includes (but is not limited to):
– Shouting at them;
– Deliberately saying things to embarrass or humiliate them;
– Asking them to justify themselves in circumstances that are unfair;
– Calling them names;
– Calling into question their professionalism in circumstances that are unfair;
– Accusing them of incompetence in circumstances that are unfair;
– Using various facial expressions to demean or intimidate them;
– Setting unrealistic time frames;
– Making them work through lunch breaks;
– Refusing to give them time to formulate an argument or response in circumstances where it is unfair to do so.
Apart from being obviously degrading and damaging to lawyers, judicial bullying can be disruptive to the court process itself (it can sometimes take an awful long time to pontificate), and it can also be damaging to lawyer/client relations. The client is unlikely to be able to objectively assess the judicial officer’s words or looks and can sometimes take their words, for instance, as statements of fact from a higher authority. The client then leaves court feeling that the lawyer has not done their job properly or has otherwise failed them and that, therefore, they have not had a fair hearing. Likewise, other lay people sitting in the body of the court would be forgiven for watching a judicial bully in full flight and wondering whether it is even possible for justice to be done in such a chaotic courtroom.
Of course, we are not talking here about justifiable complaints made by judicial officers. I have never had a new lawyer complain about a justifiable complaint made with grace and tact. I have received many complaints about judicial officers using the inexperience of a new lawyer as an excuse to vent some of their own inner stresses.
And this is where it gets interesting. I think we can all agree that psychologically healthy people do not bully others. The same goes for judicial officers. Psychologically healthy judicial officers do not bully others. If they do feel that the advocate has not performed to their expectations, they may say so tactfully and gracefully. Healthy judicial officers do not resort to name-calling, shouting, or facial expressions designed to humiliate or intimidate the advocate. Judicial bullying, seen in this context, stems from a mental health crisis in the judiciary which impacts, in turn, on the wider profession and the community as a whole.
So what is to be done? How do we make judges healthy so we can work in a healthy workplace?
Happily, this question has already been asked and answered in part by the Judicial College of Victoria who recently launched Australia’s first online wellness resource for judicial officers aimed at assisting “judicial officers to respond optimally to stress in themselves and others.” http://www.judicialcollege.vic.edu.au/judicial-wellbeing. Naturally, the idea behind the resource is to promote wellness among judicial officers who are renowned for suffering from stress, anxiety and even vicarious trauma associated with their unrelenting work schedules and the nature of the proceedings that play out before them.
At the same time, the government is also taking steps to bring about some much needed accountability. In 2015 the Andrews Labor Government announced that they would establish a new commission to investigate complaints into the conduct of judicial officers in Victoria. The commission will not only be able to investigate complaints, it will also have a process for especially serious cases whereby it can refer judicial officers to a special panel with coercive powers. In some circumstances the panel could recommend removal from office. The Judicial Commission of Victoria Act 2016 comes into operation 1 July 2017. Under s5 and s6 of this Act an individual or, a professional body on the individual’s behalf can make a complaint into the conduct or capacity of a judicial officer or a non-judicial member of VCAT. This is important, as many individuals may be reluctant to report poor judicial behaviour if it may mean jeopardising their career. The Heads of Jurisdiction, the AG and the IBAC can also make referrals. The Act provides the commission with coercive powers. Judicial officers can be made to produce documents, appear at hearings, undergo a medical procedure and the Commission even has the power to issue search warrants.
Unfortunately, the legislation does not identify what type of conduct is reportable. Likewise, it does not refer specifically to judicial bullying and it does not provide a definition of it. For a long time conversations about judicial bullying have been complicated by the lack of any universally accepted definition of what judicial bullying is. We do, however, currently have two definitions of ‘workplace bullying’ within the legal profession that we can draw from. For instance, under Rule 123(c) of the Legal Profession Uniform Conduct (Barristers) Rules 2015 – a barrister must not in the course of practice, engage in conduct which constitutes workplace bullying defined as: “unreasonable behaviour that could reasonably be expected to intimidate, degrade, humiliate, isolate, alienate, or cause serious offence to a person working in a workplace”. The Legal Profession Uniform Law Australian Solicitor’s Conduct Rules 2015 has a similar provision but its definition of workplace bullying is, arguably, broader. It defines bullying, as “bullying that is unlawful under the applicable state or territory anti discrimination or human rights legislation If no legislative definition exists, it is conduct within the definition relied upon by the Australian Human Rights Commission to mean workplace bullying. In general terms in includes the repeated less favourable treatment of a person by another or others in the workplace, which may be considered unreasonable and inappropriate workplace practice. It includes behaviour that could be expected to intimated, offend, degrade or humiliate.”
Putting definitions aside, the twin approach of assisting judicial officers to be psychologically healthy as well as making them potentially accountable for their stress-related behaviours has to be a recipe for success.
While we are patiently waiting for the effects of these latest innovations in the legal landscape to trickle down here are some tips to assist the new lawyer to manage their experience of judicial bullying.
• Place the behaviour in context. It helps to understand judicial bullying as a reflection of the psychological status of the judicial officer, rather than being attributable to something you have done or haven’t done.
• Don’t show fear. Be firm with the judicial officer, particular if they are resorting to name-calling, shouting, or accusations of unprofessional conduct. You are entitled to defend yourself. You might say for example: “Your Honour’s accusations are unfair. They are unfair because…”. It is not a sign of impertinence to defend yourself against unfair statements.
• If you have made a mistake and the judicial officer has taken delight into causing you to feel even more humiliation about it than you already do, please go easy on yourself. The judicial officer is suffering from what the writer calls SSMS, or, Sudden Short Memory Syndrome, where they suddenly cannot recall any of their early career mistakes and hold all lawyers to the same standard whether the lawyer has been admitted to practice for one week or twenty years. You don’t have to allow their SSMS to bring you down.
• De-brief with colleagues. It always helps to talk about the experience and your colleagues will no doubt have stories of their own to share.
• Do not go over and over the incident in your mind and wonder what you could have done to change it. You are never responsible for the behaviour of a judicial officer. Never!
• If it is a very serious case of judicial bullying, report the matter to the LIV or Vic Bar (whichever is your professional association) – they are able to take the matter on your behalf to the Heads of Jurisdiction.
• After work, go home and be extra kind to yourself. You have just been through an ordeal. Don’t just sweep it under the carpet. Process it by talking, writing or meditating but at the same time tell yourself quite explicitly that you are going to look after yourself now as you have been treated poorly and you deserve better.
As lawyers – or in my case, aspiring lawyers – we are all too aware of the pressures and mental health risks we face. Ours is a stressful profession, and the need to be mindful of our wellbeing and proactive in maintaining a work/life balance is paramount. Each individual has their own approach to this challenge, and for the creatively inclined among us, it can be an even greater challenge.
Music was one of the first casualties of my decision to study law. Throughout my childhood and undergraduate studies, I had discovered and nurtured a love of classical music performance – although I will readily admit I was not destined for the Melbourne Symphony Orchestra. I fell in love with orchestral music the first time I experienced the ecstasy of performance. There is a moment, not always attained, when the music works. When the orchestra becomes greater than the sum of its parts and explodes in perfect harmony. The feeling as a musician is indescribable. Your chest swells, the hairs stand up on the back of your neck and you achieve simultaneous clarity and euphoria. It is thrilling, addictive and so much more.
The move across to law school and the loss of my music was a terrible wrench. Although I was shortly consumed by the demanding law curriculum, I was also half-heartedly googling community orchestras, wondering whether I could ever again find a place in my life for music. In between the mountains of assigned reading and the copious hours of study I felt obliged to put in every day, the law had established a monopoly on my time. It wasn’t making for a particularly joyful first semester.
The light returned with the golden glint of a treble clef worn around the neck of a classmate. This kindred spirit told me about Lawchestra and gave me the nudge I needed to drag my viola back out of the cupboard. In Lawchestra, I have discovered many a like-minded lawyer-musician. Together we take time out from the pressures of work and study to meet and make glorious, uplifting music.
Lawchestra are looking forward to our first performance of the year, Terminus which will be our greatest performance yet.
Terminus brings together Lawchestra, Habeas Chorus (the choir of Melbourne’s legal industry) and Monash University Choral Society for two epic works, Mozart’s sublime Requiem and the Melbourne premiere of Australian composer Dan Walker’s Last Verses which is based on the final works of some of history’s greatest poets. The performance celebrates life and rallies against death, showcasing the final step of the journey. It promises to be a spectacular event.
One cannot always pick when the moment of perfection will come. When everything clicks and the music begins to soar. It is transcendent, euphoric and amidst the majesty of St Paul’s, I cannot begin to imagine its power. Come and join us, for it shall be incomparable.
As part of Law Week, BottledSnail Productions presents Terminus at St Paul’s Cathedral on Saturday 21 May 2016 (3pm and 7pm) see http://www.bottledsnail.com/terminus for tickets and more information.
BottledSnail Productions is an organisation that seeks to promote mental wellbeing in Melbourne’s legal industry through supporting and producing creative and performing art projects. It has staged musicals, comedy shows, theatre productions and runs many musical ensembles throughout the year.
Terminus is supported by a Law Week grant from Victoria Law Foundation and sponsored by Your Law Firm.
Katharine Kilroy is a third year Juris Doctor student at the University of Melbourne and plays viola in the Melbourne Lawyer’s Orchestra.
By Bernadette Healy
Do you want to learn a strategy to help you take charge during moments of stress?
As you are no doubt aware, people differ in the extent to which they are in tune with their bodies. Some are routinely able to take good physical care of themselves and are practised in attending to, and understanding the information that the body can provide about being in the world. This includes recognising the particular physical discomfort that they experience when facing a challenging situation at work or at home.
For others, however, the body is a forgotten vessel – known mostly in a secondary sort of way as that which carries around the parts of themselves of which they are more aware – such as their rational, thinking selves or their feeling selves. (NB. This does not necessarily equate to living unhealthily). During a stressful time many in this group may still think about their stress and try and work it out rationally, or they may be aware of feeling stressed, such as feeling more easily angered, or emotional, or more intolerant than usual. They are less likely to stop and focus on their physical sensations.
Even when very aware of being stressed, it is common to automatically engage in reactionary avoidance behaviours rather than stopping and paying attention to the body. This is often due to a fear that focusing on the physical experience of stress will make things worse. (Individuals may or may not be aware of this fear).
Learning how to pay attention to the information held in the body is a very important part of working through stressful times, including breaking patterns of avoidance behaviours. Common avoidance behaviours include – but are not limited to: outbursts of anger, blaming others, withdrawal from people, drinking alcohol or using illicit substances, over-eating and fleeing.
So how can you begin to pay more attention to your body in a way that will assist you to cope with stressful situations while reducing the likelihood of engaging in the behaviours listed above?
Start with a few minutes of focusing on your breath.
Then still with eyes closed, focus on the sensations in your body, pay attention to whichever area of the body is calling out for your attention. Try and take your awareness to that part of the body and observe the sensations. (Imagine that you are describing the sensations to someone without any knowledge of human anatomy and its terms – instead seeking to describe the sensations in a fresh, non-technical way). It may help to ask yourself questions about the sensations such as:
- Is the sensation hot or cold?
- Is the sensation in one distinct area or spread out?
- Is the sensation heavy or light?
- Is it coming and going or staying the same?
Once you have noticed and described the sensation, move on to the next sensation that you notice or if you feel that is enough, open your eyes.
Sit for a while and ask yourself how long that sensation has been around?
If it makes sense for you, try describing the sensation visually, for example: a ball in the chest, a large rubber band around the head, a metal weight on the back, a bobbing cork in the throat etc. (You might even like to try making a primary-school level drawing of this and then just look at your picture and notice any thoughts that occur to you about the picture)
Make a point of trying to notice the coming and going of the sensations in the future, and see if you notice any patterns about when it is strongest and weakest.
Pay attention to how you are feeling now. It is highly likely that the simple exercise of focusing on physical sensations of discomfort has resulted in a lessening of them. Of course they may well return, but you will know from direct experience that they can also diminish, and that you now have a strategy to assist in this process.
 In cases of severe anxiety there is a need for professional help in sorting out when to focus on physical discomfort and when to actively choose other strategies at least until the anxiety has moved out of the severe zone
If at any point you feel too uncomfortable (say an 8 or above on a scale of 1 to 10 where 1 is little discomfort and 10 is maximum discomfort), discontinue and engage in a healthy distracting behaviour such as a brisk walk, watching a loved movie, looking up information about a favourite topic, reading a novel etc and consider seeking professional help if you would like to understand about your discomfort and learn some appropriate techniques.
 Sit with back and neck straight.
- Close eyes gently.
- Become aware of your breath.
- Don’t try and change your breath, just observe it as it comes and goes.
- Try and let go of any thoughts as they arise
- Remind yourself that they are just thoughts, choose to let them go as if the thoughts are on a train which you see whizzing past but do not get on.
- As thoughts arise, don’t blame yourself for becoming distracted but instead bring your attention back to the breath as soon as you are able without judgement or criticism.
- Observe the breath coming and going.
- Don’t count the breaths or think about the process of breathing, but just experience the sensations of breathing and observe the breath in the moment of breathing.
- Notice whatever there is to be noticed
- g. the temperature of the breath as it enters and leaves the nostrils; the feeling of air on the skin just under the nose or at the tip of the nose; a feeling of movement within the chest etc.
- Continue for 3-5 mins.
 For more information see Cayoun, B. A. (2011). Mindfulness-integrated CGT: Principles and practice. West Sussex, UK.: John Wiley and Sons.
This time last year a big New York-based law firm told employees it was instituting a new policy eliminating work emails during night and weekend hours… and then revealed the whole thing was a joke.
Now there are some things bosses really shouldn’t joke about.
To see what happened next – the whole story is here: http://time.com/money/3768766/april-fools-joke-work-emails-law-firm/
By Joel Orenstein
Buddhist imagery refers to compassion as being like one wing of a bird. She needs the other wing of wisdom in order to fly.
When I first decided to study an undergraduate law degree, I had made a very conscious decision, at the age of 26, to use law to strive to work for the benefit of others. At that time I had been working in refugee advocacy, and was in the fortunate position to be able to dedicate my energies to the study of a discipline that could be of assistance, on a very practical level, to those most in need.
After finishing my studies, whilst I saw others go down the traditional pathway in the law to the big firms, I never had any interest in such work. Instead I actively sort work in “poverty law” – entering the Community Legal Centre world by undertaking my articles year at Fitzroy legal Service before moving across to Victorian Aboriginal Legal Services and working in indigenous advocacy.
This was a time in my life defined by a very clear delineation in my mind between those worthy of fighting for, and the dominant power structures that needed fighting against. This dichotomy between good and evil was at the forefront of my world, and was also the backdrop of my values-based approach to lawyering that in some ways has stayed with me throughout.
During this time I sort to define myself by the type of work I did and the clients I worked for. I called myself an “activist lawyer” to distinguish myself from the self-serving and money-motivated lawyers that dominated popular culture. I identified myself with my peers working in the community sector and Legal Aid – underpaid, overworked, but righteous and proud, working for good.
You would think that working with the motivation to be of benefit to others would sustain a healthy and long career in the law. Unfortunately in my experience this is not the case, as I have witnessed many of my colleagues who have either dropped out, are miserable in their work or live with a high degree of conflict or dysfunction.
Why is it that so many of us, motivated to assist others, as not travelling so well? I know from my own case I nearly did not make it. Although perhaps outwardly my actions could have seemed compassionate and caring to others, inwardly I was terribly conflicted by righteous indignation, anger, burnout and an inflated sense of self. I would invest so much of myself in positive outcomes for clients and would suffer terribly with each tragedy or injustice that presented before me. The suffering seemed so cruel and unjustified, caused by fear and greed. I became angry with the world and those who did not share my view of it, and despairing of my inability to change it.
A decade on, and although I continue working for the same client groups dealing with much the same issues, coming up against the same power structures, somehow I have come to find peace in myself and in my work. Don’t get me wrong, I certainly have my off days, but generally I am able to find equanimity and joy in what I do. And I seem to be doing good work.
So what has changed? Over the years, with a developing wisdom, I have changed emphasis in the way that I work. Now I practice law consciously in a therapeutic way. Although I still have a certain legal outcome that I am working towards, there is an awareness of focus on the moment-to-moment process of working with clients and others within the judicial system. This involves an emphasis on mindful communication and presence, and at the same time recognising and acknowledging my own suffering and reactivity as they arise.
The result for me has been that I now work with greater balance. My prejudices have softened, relationships improved and I have much greater understanding of a positive way to facilitate change. I do not avoid conflict, and am much better able to judge when to stand strong or when to be conciliatory. Emotional awareness means that I recognise when I am heightened, angry, anxious or upset, and my emotional state does not have the same heaviness to direct my experience.
Generally therapeutic jurisprudence has looked at changing legal systems to facilitate therapeutic outcomes, as opposed to the looking at the way to work as a therapeutic lawyer within the system. My experience, however, has been that unless legal practitioners practice consciously in a therapeutic way, the prospect of therapeutic outcomes is greatly lessened.
Practicing law with motivation to work for others and instigate change without wisdom is like trying to fly with one wing. We must develop and practice insight and wisdom in the way we work, as otherwise we are bound to crash and burn.
This is moment to moment, and with practice, inevitably impacts in a positive way not only the outcomes of legal problems, but is also the source of great healing, both for others and oneself.
By Stephen Tang
With the late arrival of streaming video services to Australia (legally, at least), we never got to use the phrase “Netflix and chill” in its plain and ordinary meaning. The success of its transformation into a slightly creepy euphemism probably depended on its original innocence: the joy of passive entertainment and the joy of switching off by switching on.
For a time, “Netflix and chill” succinctly gave fresh expression to a certain kind of pleasure which I fear is on the verge of extinction: doing nothing. Well, not quite nothing, but a restorative retreat to a comfy state of rest.
We’re of course all different in what this looks like. It may be watching an entire season of a show (it’ll take 1 day and 22 hours if you want to catch up on all of Breaking Bad), re-reading a trashy novel, cooking up some comfort food, or planting tomatoes in the spring. It’s not necessarily about alone time either, although as an introvert that’s where I find myself most often.
Idle restoration could also be found in the familiar rhythm of a regular catch-up with old friends, or unrushed and agenda-less time with your partner. Those with higher baseline levels of activity might find their default rhythm in a familiar run or gym routine.
What’s in common is that returning to this state is something that comes so naturally, so effortlessly and so mindlessly. There’s nothing particularly novel, demanding or even memorable about the activity. Indeed, what can be an effortful act of choosing what to do vanishes altogether through habit and familiarity, or by having choices made for you. Time passes with languid ease, and we feel refreshed afterwards. Continue reading
by Bernadette Healy
Being a professional new to their career – exciting and nerve-wracking!
Congratulations on being a practitioner in your new career (or if you are a law student on getting as far as you have to date!). You have probably been so busy getting to this point that you may not have given thought to the question: how do I want to be in this career?
That is, what kind of lawyer do you want to be, not just in terms of executing your professional obligations as a lawyer but what sort of professional do you want to be?
It may be helpful to think of your new career as a marathon you are about to start rather than a sprint. For some of you sprinting will be a particular strength and this is definitely the kind of skill required for some of your work.
However treating this career in general as a sprint or a series of sprints may inadvertently lead you to experience burnout.
Although it is common, particularly when a new professional, to view your new career in terms of discrete projects, from a long-term well-being perspective, it will help to keep stepping back and asking yourself about how you are going in terms of an ongoing professional journey.
This means regularly setting aside time to yourself, relaxing and reflecting – asking yourself questions about how you are compared with how you want to be. This will help to avoid your putting too much emphasis on any one outcome – a protective practice in terms of stress and helpful if you tend towards frequent feelings of anxiety and / or tending towards being overly responsible.
Anxiety and responsibility are two of the most common issues that young lawyers face as they are finding their way in their new profession.
Anxiety is a non-specific kind of feeling which is associated with symptoms such as excessive worrying, negative thoughts often including concerns about failure and approval of others and feelings of agitation.
Troubling feelings related to responsibility generally oscillate between taking on too much responsibility and taking on too little with associated feelings of shame and self-criticism
Are these feelings relevant to you or perhaps to a colleague?
It may be a little challenging to be asked to reflect on your feelings when you are most likely highly rational people about to begin your career within a profession where rationality is so greatly prized. However, feelings are a great source of information – about how we are going relative to our deeply held sense of ourselves – ignore them at your own peril down the track!
You need to be careful not to prematurely judge your own performance as a lawyer (in worse case, deciding to leave when the issue is just the natural one of being new to a professional role).
Perhaps for a very small number it may not turn out to be your career – if so remember that it is not possible to find that out without putting yourself in a position to try; hopefully if this turns out to be the case, you can avoid self-recrimination and any urge to inaccurately conclude that you are a failure when actually you have merely done a necessary bit of career self-correction.
Judging everything in terms of achievement, winning and needing to avoid making mistakes is very common within the legal profession. The use of judgement and judging while a necessary skill can also be very limiting if it means you are not as engaged in your life as you could be due to a fear of failure. That is, people who focus only on success tend to avoid putting themselves in the position of being a beginner. This leads to their ending up with a much reduced repertoire of skills and abilities and experiences than those who are less concerned with trying out something for fear of looking like an idiot or not getting it right the first time. Ongoing self-criticism and judgement is predictive of both stress and even, poor performance, particularly in terms of a rigidity in problem-solving.
Staying true to yourself
Try and keep a gentle and warm interest in yourself and who you are; your values and priorities and feelings and how to remain true to that while in your professional role.
Put some rituals in place to ensure that you make a point of separating out work from non-work, for example:
- Listing questions arising from current work day and leaving them at work ready to be re-visited at the beginning of the next work day.
- Cycling home.
- Getting off the tram or train one stop early and walking.
- Sitting in a park for 5 mins before going home.
- Doing a 3 min breathing practice on the train home.
- Asking your partner and family to leave you alone for the first 10-15 mins after you get home.
Do some regular self-reflection. You could start with the identification of your personal triggers – this could be people, situations or events which cause you to react in a manner which is out of proportion with the situation.
For example you may find yourself being very annoyed with the approach of a colleague and find yourself ruminating on them, their approach, your reaction, the situations you have shared etc. What may actually be happening is that your colleague has triggered a potential threat to a core belief such as that you must be liked and approved of; that you must be in control; or that you must be included. If you are not aware of these potential triggers, you are likely to automatically and unthinkingly respond to the situation in an inappropriate and reactionary manner and to attribute to the other that which is really to do with you.
Learning to identify and control personal triggers is vital to ensuring that you know where you and your ‘stuff’ ends and that of others around you begins. It doesn’t change the situations you face but it will give you a sense of security that you will be ok.
Self-reflective practice can guard against the kind of existential desert that is commonly experienced by those who have been so busy doing, fixing, controlling and generally just getting on with things that they have omitted to build in regular time for being, reflecting and asking themselves some non-task-focused questions.
Focusing in on your inner life can help to modify the down side of your skill set. That is, just as it is necessary to know your strengths and build on them and maximize their use, it is also necessary to understand the likely down sides of these strengths. E.g. the strong individualistic drive and focus that can motivate someone to become a skilled practitioner may also be associated with low tolerance for others’ weaknesses and perhaps even make them a poor team player. A person with great organizational ability and project management ability may also be associated with an inability to see the role of lateral thinking in problem-solving or perhaps even a reluctance to give time to the use of non-standard problem-solving methods.
So think about the kind of professional you want to be, make a bit of effort to allow yourself space for your own feelings and ideas to bubble up, watch out for your personal triggers and the other side of your strengths and most importantly, do all this with a sense of fun, curiosity and kindness.
by Arna Delle-Vergini
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’s ‘Thirteen 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.