Ruminations on Lawyering

Practicing law, especially litigation, had many rewards.

It was challenging. Tactics and strategy had to be developed and implemented. You had to know or quickly learn many different areas of the law. You had to learn about new business practices and industries. You had to become skilled at investigating factual issues through the formal litigation discovery processes and otherwise. This includes the skill of asking questions, especially on cross-examination.

You had to pull all the factual and legal pieces together into an effective and persuasive story and argument. You had to be able to present these arguments, in writing and orally, to your adversaries and the courts. You had to be able to persuade others–judges, juries, other lawyers, clients, witnesses and opponents. You had to be able to think on your feet. You had to organize and manage a team working on the case.

In all of this you needed to develop and maintain the trust and confidence of your clients as you guided them through the very stressful litigation process. It was like a multi-dimensional chess game.

Nor can I forget that this work was financially remunerative.

Such legal practice, however, has its negative side.

In order to be an effective advocate, you needed to understand and empathize with your client and have some emotional identification with the client. At the same time, you needed to have emotional separation from the client so that you could be the analytical professional counselor who could point out weaknesses in the case to your client and develop an overall assessment of the case. This balancing act is not easy and is very stressful.

There was always the fear at least in the back of your mind:  did I forget or overlook something important or just get it wrong? (If you did, you can be sure your opponent or the court will point it out.)

When a case has not settled and the time for trial approaches, you shift into a higher gear where preparation for trial becomes nearly an all-consuming endeavor. When the trial actually starts, you shift into an even higher gear. During a full day in the courtroom, you are an actor in a drama that you also are co-directing: you are asking questions, making objections and arguing issues with opposing counsel to the judge while in the back of your mind you are trying to digest what has been happening  and thinking about what is coming next. When the day in court is over, you retreat to your office or hotel room to start preparing for the next day: doing additional preparation of witnesses, supplementing your own preparation and revising tactics and strategy for the rest of the trial in light of what happened at trial that day. Early the next morning before going to court, you continue this preparation, often over new ideas that kept you from sleeping during the night. Somehow you also try to sleep and eat enough food to keep going. Need I say, this is stressful.

Most cases settle, and when they settle while you are in the trial preparation or actual trial mode, there is both relief and disappointment. Relief that you do not have to go through the remaining agony of a trial. Disappointment that you are not able to use all of the work that you have done to get ready for trial and to test yourself in the crucible of the trial.

Moreover, increasingly over my years of practice, some opposing lawyers in cases were exceptionally difficult people. Some, I thought, developed a modus operandi of trying to get under their opponents’ skin and thereby distract them from the case at hand and to intimidate them. Some were dishonest. Moreover, you could not get away from this other person; by the necessities of the case, you had to have continuous dealings with the person. In one case, I had dreams (nightmares?) of pushing an opposing lawyer off a cliff.

Judges could also be thorns in your side, especially when setting deadlines or dates for hearings or trials that interfered with your previously arranged personal plans.

I came to understand that the U.S. litigation process usually drives the opposing parties further apart, rather than produce reconciliation. In addition, when a case was finally over, even when you had obtained a favorable result for your client, you understood that the client was at least privately thinking that he or she hoped they would never have to see you again because if they did that would mean they were involved in another stressful and expensive lawsuit. Who needs or wants a headache?

In reaction to these negatives of the litigation process, I became interested in alternative dispute resolution. I studied ADR and became a mediator and arbitrator. I also served as an officer of the ADR Section of the Minnesota State Bar Association. I wrote articles about ADR, especially its ethical issues. Eventually, however, I concluded that it was too easy to become an ADR “true believer” focused on the processes of resolving disputes and that did not provide personal satisfaction.

After 20 years of practicing law, by happenstance or the will of God, I was presented with a case for the American Lutheran Church that opened the door for me to international human rights law. That case and my further work in this area of the law will be subjects of future posts.

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As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

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