It should have been among the first courses you took. It’s far more important than civil procedure or property. It’s about what was already buried deep within you when you decided to go to law school.
As a stranger to the profession and to what you were expected to learn, this critical discipline was never addressed, and you never knew it needed to be. Law school is not divinity school, and a discussion about the importance of kindness, generosity, and morality in the profession must seem alien to you as a soon-to-be lawyer. After all, you’re all geared up to win, win, win.
But hold on. Our sole task isn’t simply to win, win, win.
We’re guardians of the judicial system, a system that dates back at least to the 282 edicts contained in the Code of Hammurabi, the first written law of ancient Mesopotamia, reaching back in history to 1754 BC. What an awesome legacy we’re charged with protecting.
But aside from all of the causes of action and elements, from the jurisdictional issues and the arcane parables contained in required cases like Hadley v. Baxendale or Palsgraf v. Long Island Railroad Co., how was it possible that something so vital to the success of a lawyer was omitted from your legal education?
Something so simple, so basic to the meaningful practice of law, indeed to the advancement of the human condition, was deemed just not quite important enough to be taught.
But you need to learn it, or more likely relearn it, on your own. That discipline is the full understanding of simply getting along in good faith, with generosity and kindness, with all of the peers with whom you’ll interact.
Sounds silly? I promise you it is not.
What goes around…
Princess Diana once said: “Carry out a random act of kindness, with no expectation of reward, safe in the knowledge that one day someone might do the same for you.”
In the world of the law, failing to understand this simple concept leads to the reverse of what Princess Diana was trying to convey—the ugly, way-too-often-relied-upon tool to which most of us default: payback. Payback is toxic and doesn’t advance your clients’ interests, which should be your sole focus as a lawyer. It’s really the only reason we exist.
Recently, I saw a blog post by an attorney whose intention was, I think, to very gently but firmly chastise another attorney who’d, apparently with purposeful intention, unilaterally scheduled a nonessential hearing at a time when the other attorney planned to be on vacation.
Unless there was a legitimate emergency, which there rarely is, this seemed like sharp and uncivil practice by the offending attorney and was worthy of gentle remonstration.
And the blog did just that—except for the last seventeen words. I won’t repeat the lengthy blog, but it passionately and thoughtfully hit all the right buttons in a siren call for civility. It was a spot-on lament on the absence of civility and positive interactions between lawyers and a discussion calling for a higher level of consideration.
Had the blogger ended on the uplifting and positive note that was eloquently expressed throughout the multi-paragraph discussion, there couldn’t have been a more powerful expression of the need for thoughtfulness and kindness in dealing with our peers. But he didn’t stop. He couldn’t because of his “toxic stew.” So he was compelled to conclude his otherwise-thoughtful message on the need for civility, generosity, and kindness with the following troubling seventeen words:
And to that opposing counsel who ruined my vacation, I remind you that the world is round . . . (emphasis added).
Payback! In the practice of law, perhaps the most difficult thing to do is to turn the other cheek when we hold in our hands the fortunes, monetary and otherwise, of our clients. But payback is never about our clients’ legitimate interests.
It’s almost always about our own ego, hubris, and heightened sensibilities about being a lawyer.
Clients don’t expect you to be acting out upon your personal slights, large or small, especially on their dime, while juggling their important interests at the same time. They expect you to be helping them to solve their problems. And the remarkable thing is, virtually all of your clients’ problems can be solved through creative thinking, self-determination, and respect and generosity for your adversaries, devoid of the toxic residue of your prior engagements with them.
How did kindness get lost?
This is simple to state, yet difficult for most to accept. And the unwillingness or failure to accept the truth I’m about to reveal for you will redound to the detriment of your clients, to your probable ostracization within the legal community you choose to practice in, and to a generalized unhappiness with the profession you’ve worked so hard on to attain entrance.
Walk by a mirror and gaze into the image looking back at you. Seriously. We’re going to take a personal moral inventory.
This may be painful. You may scoff at it. But if you don’t take this seriously, civility, generosity, and kindness— perhaps the most critical tools of a lawyer—will be out of your reach, and society will be left to deal with one more self-absorbed lawyer whose priorities may be out of sync with the needs of our culture and the obligations of the profession. That shouldn’t, and needn’t, be you.
We’re talking about the “toxic moral stew” that’s in each of us, simmering just below the surface, waiting for the perfect time to infiltrate our behavior.
You have it. I have it. Judges have it. Clients have it. Your adversaries have it. And it’s different for each of us. The problem comes when there’s a clash, an open conflict between your toxic moral stew and that of the various people with whom you interact in this profession.
Its genesis dates back to your first sentient days, when you initially became aware of the world around you and began observing phenomena.
You listened to your parents and grandparents, older siblings, and their friends. Later, your worldview was shaped by your experiences in school, on sport teams, in clubs, in universities and through the absorption of the teaching biases of your instructors, and in the media you chose to accept and the politics you chose to adopt to the exclusion of all others. All of these things and much more formed the ingredients in your toxic moral stew.
This isn’t a criticism; it’s a human reality, and we all carry this millstone around with us in our human interactions.
You believe what you believe because that’s what you’ve always believed. And your beliefs have been steadfastly reinforced by those around you who looked at the world in a similar way. This is called confirmation bias.
Perhaps your worldview is correct, or perhaps it’s not. But this is what you bring to the game as your “sword and shield” as you approach the battle of the law. And, not surprisingly, no one else has the exact same toxic moral stew. Theirs is also uniquely their own.
So what’s the problem? If our egos rule our behavior, there’s an inevitable clash with our adversaries that has nothing to do with our clients. Your toxic moral stew and that of your adversary are irrelevant once you become a lawyer. The only thing that matters is the interests of your clients (who parenthetically, and just to complicate things for you a bit more, have their own toxic moral stew).
Nothing about what you think to be true has any material value once you take on client matters. It’s solely about them and getting the best result in the most ethical and economical way.
So as you take your personal moral inventory in front of that mirror, understand that what you see, if it’s honestly observed, must be locked away, far removed from your work as a lawyer.
Taking a better approach The Dalai Lama said: “This is my simple religion. There is no need for temples; no need for complicated philosophy. Our own brain, our own heart is our temple; the philosophy is kindness.”
What does this have to do with the practice of law? Just this: Good lawyers understand that, while they should be fully prepared with all the weapons the law endorses, as a first instinct, scorched-earth practices rarely result in satisfaction for anyone but the lawyer who employs them—and that satisfaction is fleeting.
The client’s case is tainted, and the client is likely overcharged. The opposing client is demoralized. The adversary attorney is thinking about payback. And, critically, within your community of law, you’re marked as someone who, at best, is difficult to deal with. The win-lose philosophy of law is anachronistic, and its use is effective, if at all, only in the most dire and unique situations.
In the modern era, it’s far more productive to move away from the “black-letter” outcomes and begin to apply critical thinking and client self-determination in legal problem solving. Because that’s what you are—a problem solver. That’s why your clients retained you—to help them solve vexing, often debilitating, problems. And the worst possible place to solve those problems is submitting their outcome to a win-lose authority, such as a judge, jury, or arbitral panel, all of whom have no stake in the outcome and couldn’t care less about your clients’ very real problems.
This isn’t to say that some disputes by necessity must be submitted to third-party decision makers, because such disputes exist. But they’re miniscule in number compared to the issues resolved (and are resolvable) by the parties themselves with the gentle guidance of their counsel or by the creative problem-solving prowess of the lawyers themselves.
This type of dispute resolution or negotiation is undertaken without threats, without the fear of sanctions and other fee awards, and without the threat of scorched-earth litigation. It’s undertaken with the “shields and swords” placed in the closet, with everyone aware of their existence, but without reliance on them in the context of the issue being resolved. It’s called kindness.
It used to be called civility
When words or concepts are overused, they tend to lose any sense of real meaning. I think this is the case of the word civility. Our profession has been hopelessly chasing the concept for decades, and its wonderous benefit has been wholly elusive, despite the best efforts of many.
So I’m reverting to a more simple, understandable basic human concept: kindness.
How difficult is it to be kind and generous in your dealings with others? It’s not.
You must first jettison the fallacy that you’ve become anointed as something special simply because you’re becoming a lawyer. You’re no more special than an accountant, a plumber, or an electrician. What’s different is the level of responsibility that you’ll have assumed to help your clients solve their often life-altering problems.
And while it’s easy to get caught up in the popular “gotcha” culture of lawyers that we see on television and elsewhere, you’ll find that taking the effort to understand yourself—who you are, where you came from, and how that patina fits into the jigsaw puzzle of your life and practice— and how you’ll affect other people is worth the effort and discomfort.
It’s an important inquiry, and I’m sure to a moral certainty that if you eschew the sharp practices needed for a win-lose, zero-sum game practice and adopt a win-win philosophy in all your undertakings, your practice will be pleasant, your interactions with colleagues and clients will be enjoyable, and the entirety of the system will be elevated.
And this can and must be done one lawyer at a time. Will you be the first?
The professional rewards you’ll reap will be manifold, as will be the peace and harmony you’ll experience in your personal and family life. And it all starts with human kindness.
Coupled with generosity and empathy in your dealings with others, you’ll find that extraordinary results— outcomes you couldn’t even imagine—are possible.
This isn’t preachy. It’s reality, and it’s your ethical obligation once you take on the title of lawyer. Good luck on your journey.