by Robert H. Henderson
Stress. My life has been haunted by stress (I shamelessly borrow Norman MacLean’s last line from A River Runs Through It). I’m the King of Stress. You are thinking, “no way reading this piece can benefit me.” You are wrong – I can help you. Suspend disbelief for 5 minutes while I briefly qualify myself.
In the early 60’s, we were hysterically afraid of the communists, much as we are now of the terrorists. President 35 asked me to go to a service academy. You know, part of that “ask what you can do for your country” bit. You have to admit, he had a certain charm, and I was a sap. My beloved U.S. of A. had just been through the Bay of Pigs and the Cuban Missile Crisis. So, at 17, I found myself at the United States Military Academy at West Point, New York. Huge mistake. I couldn’t quit without my father’s permission. My father had flown bombing missions in the South Pacific during World War II, and he was not in a permitting mood. I am now a fervent believer than no human being should commit to anything beyond the next day or so before their age starts with a 3. Anyway, at the end of my second year, I was 12th from the bottom of my class in “military aptitude,” in a class of 800 or so. They kicked out 10 of the 11 below me. The “cutoff man” had been my roommate. Two years later, I graduated, with relief. The Latin phrase is “summa cum difficultate.” To me, those 4 years seemed to last as long as the 40 since. I was a total failure as a cadet. This was a very stressful time for me.
There was a war going on. President 36 foretold of dire consequences if we didn’t “win” in Viet Nam, much as President 43 now predicts if we don’t “win” in Iraq. It was left to President 37 to get us out 4 long years later. It turned out 37’s 1968 secret plan to end the war coincided with his 1972 reelection. Vintage Tricky Dick. I won’t even get into where Presidents 42 and 43 were at this time; we know 43’s Veep “had other priorities at the time.” Being a West Pointer, I was sent to jump school and ranger school. I was discharged from jump school in disgrace – I have a dreadful fear of heights. I vividly recall an ancient Jump Master, perhaps he had jumped with the Wright brothers, literally picking me up and throwing me out of the tower you jump out of before doing the supremely unnatural human act of actually jumping out of an airplane. I failed Ranger school. I have an incredibly bad sense of direction on flat land, especially swamps. Being a West Pointer, I was required to choose a combat arm. I chose the most non-combat of the combat arms, and weaseled the least dangerous assignments. No “one for all” in this musketeer. Like Ali, I had “no quarrel with them Viet Cong.” Besides Ali, my other hero was George Aiken, the Senator from Vermont who said “Let’s just say we won and go home,” which is what we finally did do, and what I suggest we now do in Iraq. I wept when Jeremiah Denton, 7 and 1/2 years a POW, the first man off that C-141, got down on his hands and knees and kissed the ground at Clark Field. I digress. In sum, I was a total failure as a junior officer. This was a very stressful time for me.
As soon as allowed, I transferred from the combat arms to the Judge Advocate General’s Corps. Lo! I graduated first in my class at the “U,” then graduated first in my class from my Judge Advocate class. Had I found my niche? It was not to be. I tried criminal cases, lots of criminal cases, several a month, every month. One time I was in trial for 11 out of 12 days, with only the intervening Sunday off. JAG career-wise, however, I was going nowhere. I wasn’t in the highest traditions of the Corps, a maverick by nature, that sort of thing. Also, I hated being a leader. All I wanted to do was try cases. After a few years, I gracefully resigned before they kicked me out. I should have been so quick from my firm. After 16 years, my severance package was $0.00. I was a failure as a JAG officer. Not a total failure, but a failure, nonetheless. This was a very stressful time for me.
Meanwhile, my only brother was in the 101st, who oft goes first, and sat on the tarmac at Ft. Campbell for several days while President 39 agonized over what to do about Iran. 39 did nothing about Iran. My brother left the tarmac. President 40 was soon to be elected. This was a very stressful time for me.
At age 34, with 2 beautiful babies, 1 great, wonderful wife, 1 old car, a negative net worth, and a mortgage payment north of $1000 per month, every month, I started with a firm at $26,000 a year. I took the bus the first 2 years. At the end of the first year, I settled a plaintiff personal injury case for $215,000. This was good money 27 years ago, and the guy really wasn’t hurt that bad. My wife and I had just settled into a celebratory meal at home that evening when my leader called and accused me of malpractice for not pinning things down. I immediately got up from the table, went down to the office, and pinned things down. I enjoy all of Sir John Mortimer’s Rumpole stories, but I especially enjoy “The Penge Bungalow” episode, where a young Rumpole, “alone, and without a leader,” successfully defends a murder case. As an associate, I, of course, got none of that fee, but I did get a $3000 bonus that Christmas. This was a very stressful time for me.
I then spent quite a few years trying lawsuits, lots of lawsuits, mostly personal injury defense. I had some horrific results. One year, in back to back trials, I had the 2 largest personal injury adverse judgments in the State of Utah that year, and 2 of the 10 largest in the history of the State, including the largest adverse judgment in the history of the State. I set a record that endured for 17 years, a long time in this business. After the one in excess of $10,600,000, I offered to resign from the firm. Decades later, I can quote my conversation with my leader verbatim. It went like this:
Me: You want me to resign?
Me: Maybe they [the client] will sue me.
Him: They are not going to sue you.
Me: Why not?
Him (ever the confidence builder): They don’t want to admit to the world how stupid they were to hire you.
This was a very stressful time for me.
I could go on, I haven’t even mentioned the sordid stuff, but you get my drift. Most of my life, I didn’t like what I was doing, and I didn’t feel good about what I was doing. Most of my life was a very stressful time for me. Bottom line, I think I am reasonably well-qualified to help you reduce your stress. That being said,
Get your heart and your head together.
In Annie Hall, Woody Allen tells how he got kicked out of his metaphysics exam because he “looked within the soul of the boy sitting next to him.” I’m just asking you to look within your own. No crime there. Scary, but no crime. “It’s very hard to get your heart and head together in life. In my case they’re not even friendly.” – Woody Allen, Crimes and Misdemeanors.
My unscientific, non-Daubert qualifying opinion is that one reason many lawyers are so stressed is that their hearts and heads are not together on what they want to get out of being a lawyer. By way of contra-example, all of the judges I know seem disgustingly happy. This, from a job that doesn’t pay very well, and involves arraigning bulk quantities of dirt bags, much reading of meaningless memoranda, and listening to idiots argue summary judgment case law on a motion to dismiss. Why, other, of course, than the unending ass kissing, are they possibly so happy? I submit it’s because their hearts and heads are together on exactly what they want to get out of being lawyers. They knew what the pay was when they took the job, and every day they believe in what they do, and they feel good about what they do.
In the 70’s I read a piece by Solzhenitsyn that has stuck with me over the years. His point was that morality will always be higher than law, that, at best, law can only approach morality. He gave as an example that all the people in the Gulag had been duly “tried” and sentenced under “law.” One of my all-time favorite flicks, one worth seeing, if you haven’t, and worth seeing again, if you have, is “Judgment at Nurenberg.” It makes the same point. After World War II, a German judge, magnificently played by Burt Lancaster, was on trial for, ironically, having enforced the so-called Nurenberg Laws, which had, inter alia, criminalized any fraternizing with Jews. Today, 43’s Gitmo “proceedings,” kangaroo courts if there ever were, shame and dishonor us. A few years ago, I wrote a piece wherein I recalled Sir Thomas Moore’s quote “First, men will disclaim their hearts, and presently, they will have no hearts.”
Most of us start law school with pure hearts about our chosen vocation. Indeed, we choose to pursue law school because we want to be part of an honorable profession, do good things, make the world a better place, and help people. Why, then, do we become stressed out, more alcoholics and other addicts than even the rest of society, not to mention disabling mental health issues? Years ago, maybe 20, there was a clever poster: “Stress is the confusion you feel when your mind tells your body not to beat the **** out of some ******* who desperately deserves it.” (expletives deleted).
Although I can’t prove it, I suspect a major cause of our stress is the dissonance in our souls between our pure hearts and what we have to do to be “successful” attorneys. To be successful, above all else, we have to bill, bill, bill. We also have to take, and sell, strained positions that even we can see are unfair. “The lawyers know too much, Bob. The lawyers know too much.” – Carl Sandberg.
We work for clients who want us to screw people. We don’t feel good about it, but we do it so long and so often that on the surface we are numb to it, and even worse, we do it for the money. The defense firm celebrates a meager award in a case of clear liability; the plaintiff’s firm celebrates a jackpot verdict beyond all reason. True confession: I personally have celebrated sending an octogenarian home to eat dog food. Deep inside, however, the dissonance festers and rumbles because, despite everything, most of us are still good people. “I still believe, in spite of everything, that people are truly good at heart” – Anne Frank, Diary of Anne Frank. We are torn. We are conflicted. It’s a tough business, a tough way to make a living.
Where am I going with this? I didn’t think of this, Socrates did, according to Plato’s Republic. Suppose, if you will, a universe wherein your just soul is in complete harmony, reason, emotion, and appetite in balance, a universe wherein your appetite does not dominate, a universe wherein virtue is its own reward. What if our souls NEED to feel we do just things, what if doing things we believe are unjust is a corruption of our souls and harms us, even if we are successful at them? Look around, Dear Reader. We lawyers may not lead the league in drunks, addicts, and nuts, but we are at least in the final four, if not the semis.
If you aren’t happy working for insurance companies, or other holders of huge accumulations of capital who hire and pay you to help them keep it, find something else. If you aren’t happy listening to whining grifters, who hire and pay you to “get some,” find something else. If you aren’t happy representing sociopaths, whom you are paid by the government to defend, find something else. If you aren’t happy doing what you are doing, change it. Don’t work for people who make you do things you don’t feel good about. Don’t work for people who don’t value you.
Of course, this will probably require you to abandon the quest for the gated community. The good news is that this is not only entirely doable; you will be much happier living within your means doing work you feel good about. Discover the virtues of public transportation and living in neighborhoods that include single dwellings to multiplexes to apartment houses, including subsidized housing. Neighborhoods develop. You’ll meet real people. People of all economic strata learn how to live together. It’s sort of, well, “American.” This is nothing I thought of. It has been written on extensively by, inter alia, James Howard Kunstler in The Geography of Nowhere, Return from Nowhere, and The City in Mind.
We aren’t very nice to each other. It is obvious we lawyers don’t like each other very much. “It’s worse than dog eat dog. It’s dog doesn’t answer other dog’s phone calls.” – Woody Allen, Crimes and Misdemeanors. We are not willingly civil – we are grudgingly civil. Now, when I serve as a mediator, I often tell counsel “You need to know who your friends are – opposing counsel may be the only friend you have in this case.” Think of it this way: who on your case has been trained in logic, reason, evidence, procedure, etc.? Try my rule: I let everybody screw me, once. As those who once loved me know, there is plenty of time for a retaliatory, global, thermonuclear strike. The Sicilians have a saying, “Revenge is a dish best served cold.” Meanwhile, give the other guy a break – the happiest man I ever knew was my grandpa, and this was his rule. Somehow, in some inexplicable way, at least to me, in return people gave him their best.
Choose your battles.
Balance, balance, balance. Realize that you can’t and don’t need to champion every right and slight, real or imagined. You don’t have to take every case. (Unless you are paid by the government to defend sociopaths.) Peter Singer once wrote a piece setting forth the moral dichotomy of helping a small child who is drowning in a small pond versus helping the Bengal Relief Fund in its fundraising for needy people overseas. Helping the drowning child is an easy choice, but Colin McGinn, a Rutgers philosopher, has called the second part of the dichotomy “positively bad, morally speaking, it encourages a way of life in which many important values [his examples were what we would have lost had Newton, Darwin, Leonardo and Socrates spent their time on The Bengal Relief Fund] are sacrificed to generalized altruism.” For example, I challenge my Bar’s “Justice and the Poor” campaign. I choose not to endorse it, as I don’t think having “free” lawyers involved in bringing another 80,000 cases a year, every year, for “poor” people will make the world a better place, but if you feel good about it, go for it. Free will here, East of Eden.
Don’t take cases you can’t make any money on.
You will hate those cases, you won’t want to work on them, and you will get in trouble. Unless, of course, you know you can’t make money on it, and want to do it anyway.
Don’t take silly cases for relatives or friends.
You will hate those cases, you won’t want to work on them, and you will get in trouble.
Always be straight, but learn to say no.
No explanation necessary if giving one is a problem; just say no. Interestingly, the concepts being straight and saying no compliment and facilitate each other.
Get in the game.
When I was a coach, I’d get any kid I thought I might need in the second half into the game in the first half, even if only to run the kid up and down a few times and get a couple of touches. You can’t ask a kid who has been sitting out the whole game to go in at crunch time. He will screw up. It’s unfair to the kid, and it’s unfair to the team. But trust me, if the same kid is used to being in the game, he won’t be so tense when he goes back in. I know “trial lawyers” who have never tried a case, never, and others who try one every 5-10 years. How good can they feel about themselves? They are pretenders. A generation before Nike, my old man used to tell me, frequently, “If you are going to do it, do it.” Too bad he had no intellectual property rights. Get in the game. It’s not that tough. Like I used to tell people awed by running 100 milers, “How tough can it be? A couple of hundred people do it every year.” Actually being in the game, not pretending, will decrease your stress, not increase it.
Learn to lose.
The first 15 minutes after taking verdicts will, over time, define you, both to yourself and to your legal community. Come on, what do you want to be, a “Whiner,” or a “Warrior?” You can’t and won’t win every time. Learning to lose will relieve a lot of your stress, and in a strange way, will actually make you less likely to lose. In I, Claudius, as good a first person historical fiction ever written, Robert Graves has a wonderful passage about a book Claudius (the reluctant, accidental 5th Caesar, the nephew of Tiberius, the 3rd Caesar, the uncle of Caligula, the 4th Caesar, and the grandson of Mark Antony and Octavia and Livia, before she married Augustus, the 2nd Caesar) wrote, of all things, a piece entitled How to Win at Dice. Claudius concluded that the Gods “unless they had a grudge against him on another score, always let the man win who cared least about winning.”
Look for positives.
No matter what, here we are, Americans, living in Utah, well-educated, well-nourished, with a clean water supply and shelter, able to walk the street without checking ahead for inter-locking fields of fire. How bad can life be?
Laugh, every day.
I once saw an interview of Jane Pauley wherein she explained her love for Garry Trudeau: “He makes me laugh, every day.” Woody Allen’s brilliant “Hannah and her Sisters” has a scene where a suicidal Allen ducks into a theater just to get off the streets of New York City. A Marx Brother’s movie happens to be playing. Before long, Allen is laughing – “Life’s not all a drag,” he says to himself. Laugh at yourself, too. My friend Ron Yengich and I have both survived by being able to laugh at ourselves, just how ridiculous we really are.
Stay physically fit.
Running shoes and a gym membership trump psychotherapy, and are a lot cheaper. ACTION! Movement is life. Carpe diem, or that waiting room IS going to be “As Good as it Gets.”
Keep your old, pre-law friends, and make new ones outside the legal profession.
Lawyers drink too much of their own wine. The best people in my life I either knew before I was a lawyer, or know them from running or playing ball. A few happen to be lawyers, but we rarely talk “law.” I greatly value these people. According to a man who devoted much of his life to this subject, Jefferson, T. once observed that lawyers get moral problems right 2, maybe 3 times out of 10, and that farmers get them right 9 times out of 10. I’ve never been able to pin this quote down, but it sounds good, and it comports with my experience. The worst people in my life I met through being a lawyer.
One other thing:
In one of his last pieces Kurt Vonnegut, an American POW survivor of the Allies’ firebombing of Dresden, a vastly underrated writer, a thinker on the futility of war, and other subjects, and a funny guy that I admired greatly, cautioned against relationships with people who are careless with your heart. Also avoid those with the “lean and hungry look” of Cassius, not to mention the Brutuses of your world, especially on the Ides of March.
I hope these suggestions help reduce your stress. Meanwhile, I’ll keep hoping for a new knee, widespread prosperity, global peace, universal liberty, dolphins, whales, no more unnecessary wars, the end to banal pledges, and The Runnin’ Utes.