May 13, 2020 Feature

Surviving Family Law: A Thinking Lawyer’s Guide to Tranquility, Fearlessness, and Freedom

Steven N. Peskind

Introduction

Trial lawyers operate in a world of turmoil. By design, the adversarial process is a competition between parties with divergent interests. While mediation and other forms of alternative dispute resolution (ADR) look to resolve legal disputes harmoniously, some degree of legal conflict is the rule rather than the exception. While a legal conflict can range from mild to scorched-earth, litigants’ interests are rarely in perfect alignment. Particularly in family law cases, lawyers must manage conflicts for people who are often terrified, anxious, and suffering. Managing those personalities and their expectations can take a toll on a lawyer’s health and well-being.

In family law, the emotions accompanying the rearrangement of a family are often intense. The mirror of great love is not typically apathy or mild dislike; it more often reflects the intense hatred of bitter disappointment. Litigants in family court shared their bed, fears, tears, and dreams—intimacy rarely known by other court adversaries. Managing family law clients’ emotions requires a steadying hand by a lawyer. Urging temperance and common sense to people in crises will drain the resources of even the most stout-hearted practitioner.

This Article will examine the emotional challenges confronting family law lawyers in their day-to-day practices. Working amid toxic emotions can become debilitating and discouraging. Metaphorically, family lawyers stand very close to people wrestling in a mud puddle and rarely avoid getting splattered. Relying on ancient wisdom, the author will recommend strategies on how to avoid the mental pitfalls that confront family lawyers daily. The Article will offer, as a palliative, the use of Stoic and Eastern philosophy to both survive and thrive in a modern family law practice.

I. The Trials of the Modern Legal Advocate

Lawyers serve multiple roles: advisor, counselor, negotiator, and court advocate. Solving clients’ legal problems is at the core of their professional responsibilities. Often family law issues can be resolved amicably and painlessly; other times not. While many clients are grateful for lawyers’ efforts regardless of a particular outcome, other times clients are unhappy with lawyers’ efforts unless a certain result is achieved. Studies reflect that clients generally accept unsatisfactory results if the overall professional experience was satisfactory.1 But cultural and technological developments make maintaining a positive experience more difficult to achieve. Google provides people answers to unlimited questions instantaneously, and clients have been acculturated to expect their lawyers to do so as well. And with the ubiquity of text messaging and other forms of instant communication, the notion of immediate contact is the rule rather than the exception. The practice has always been difficult, but the client expectation of real-time contact adds a layer of pressure to an already-challenging occupation.

The author commenced practicing law in 1985. After a court appearance, a letter would be dictated, typed, proofed, and mailed to the client describing the outcome and next actions. The client would receive this information approximately one week after the event. As time and technology evolved, an email describing the outcome within a day or two became the usual protocol. Now, clients have come to expect immediate information by text message, often before the lawyer leaves the courthouse. This is not a senior lawyer’s lament about the “good old days”; rather, it is a reflection of a professional dynamic all lawyers must contend with.

And with this dynamic, the act of “leaving the office” becomes near impossible for all but the most disciplined. Lawyers, probably more than most, need leisure and recreation to recharge depleted emotional reserves. As the Dalai Lama wisely observed, “In dealing with those who are undergoing great suffering, if you feel ‘burnout’ setting in, if you feel demoralized and exhausted, it is best for the sake of everyone to withdraw and restore yourself. The point is to have a long-term perspective.” But when clients with anxiety reach out after hours, lawyers often sacrifice private time for the sake of clients’ welfare. This sacrifice leads to anxiety, depression, and ultimately burnout.2 The author is personally aware of lawyers who spend hours during family vacations managing client emails, text messages, and phone calls. This dynamic lends itself to an impairment of a lawyer’s well-being, but to many, this duty is perceived as unavoidable.

Clients demand good service and few tolerate poor communication. Lawyers are rewarded for providing responsive client service. The best marketing is concluding a case with a satisfied client. Word of mouth referrals are the building blocks of practice development. But maintaining a happy client becomes more daunting with increased client expectations. Also, competition for clients is increasingly fierce as a result of more lawyers competing for a shrinking pool of business. Today, lawyers compete for clients with low-cost legal providers and paralegal services.3 Concern about keeping every client happy, and worry about losing a limited client base, drives many lawyers to the edge of exhaustion.

And as noted above, competition from low-cost competitors requires lawyers to adjust their billing practices. These economic pressures require consideration of alternatives, ranging from flat fee billing to limited scope representation.4 While demands for lower-cost services ensue, complexity of many issues increase, along with professional liability for an omission or oversight. These competing pressures create sleepless nights for lawyers managing their own firm.

As expectations continue to increase, consequences of poor performance become more punitive. Aggrieved clients, and others, can now express their displeasure with their lawyer through social media and negative online reviews. And generally they can do so with impunity, whether the criticism is fair or warranted.5 Legal malpractice claims continue to cast a shadow over the practice of law, with family law being one of the top five areas of claims.6 The practice today is unforgiving, and errors are rarely without consequences. Threats and metaphorical monsters lurk around every corner.

Another stress-enhancing trend includes the breakdown in lawyer civility and professionalism. “According to a 2007 ABA study, 69 percent of lawyer respondents saw ‘declining civility’ in their profession . . . .”7 As our political dialogue erodes and cultural civility broadly deteriorates, there is no reason to believe that lawyer incivility has lessened. Increased incivility is also due in part to the prodigious production of new lawyers by law schools. In a report done by AccessLex Institute, a nonprofit that focuses on improving access to legal education, 26 percent of post-recession new law graduates took at least one year to find employment after graduation.8 Lawyers without jobs often hang shingles and practice in the family law arena because of access to clients. Without mentoring and guidance (and often silently terrified by their inexperience), they model the courthouse bombers by overzealously advocating, believing that one needs to be incorrigible to be effective. As Nancy Levit and Douglas O. Lindner have observed:

The adversarial system and the ethical obligation of zealous representation have spawned some mutant offspring. Some lawyers perceive their playing hardball brings a strategic advantage; others think litigation is a form of warfare. They may launch personal attacks and engage in insults, name-calling, threats of bar complaints, rudeness and hostility. The unprofessional behavior extends from lawyer-to-lawyer contacts to depositions and into the courtroom.9

Of course there are cantankerous senior lawyers as well, but the infusion of unmentored recent graduates undoubtedly contributes to the erosion of legal professionalism.

Lawyers, like other professionals, are driven to succeed. While success is defined differently by different lawyers, for most, it contemplates a successful result for a client. But with this drive, the inverse often manifests: worry and fear of failure. Lawyers are trained to be negative, to anticipate problems and look for sinkholes on the road to success. This negativity bias, along with the various challenges discussed above, is common to all lawyers. But the area of family law poses unique challenges to lawyer well-being.

II. Family Law Pressures

Family lawyers dwell in the land of crises. Addressing client emergencies, both real and perceived, is integral to the practice. The necessity of responding to these emergencies adds a layer of pressure not often seen in other areas of law. The amount of energy required to address client fears is substantial and exhausting. And when one has a busy practice without necessary support staff, the pressures mount. Time-sensitive issues must be addressed immediately, and a family lawyer must contend with the gravity of client concerns. Attempts to keep up can be dizzying.

Unlike other areas of law, family law presents situations where a couple must confront each other early in the proceeding while emotions are still raw and volatile. Claims of domestic violence or interim support and custody can’t wait and must be addressed early in a case, often before a family law litigant can process what is going on in his or her life. People should take advantage of counseling to help process their confusion, but counseling does not work overnight. It takes time, and that is what these unfortunate litigants rarely have. Pitting emotionally fragile people as direct adversaries early in a divorce proceeding often makes them deteriorate, requiring the lawyer to help them maintain perspective and balance. Client management is another challenge in a family law practice.

Working with people in emotional crises places demands on a lawyers’ entire nervous system. Many clients will look to their lawyers to be their saviors, their legal “knights in shining armor.” But if the lawyer assumes that role, the lawyer reduces his or her objectivity, making reasoned decision making more difficult. Lawyers like to help people; that’s why most went to law school. Becoming a client’s emotional crutch during a turbulent time is endemic and natural, but such conduct risks an unhealthy personalization of the client’s problems. Clients often feel like they are in a sinking ship and urge their lawyer to get in with them. But if the lawyer joins the client in the sinking boat, both will drown.

The author once visited his personal doctor complaining of stomach problems. The wise physician probed: “What do you do for a living?” he asked. I responded that I was a divorce lawyer, suggesting a high level of stress. He followed by asking me whether I was getting a divorce. I politely corrected him, “No, I said I was a divorce lawyer, not that I was getting a divorce.” “Exactly,” he responded. This insight hit like a thunderbolt. It is not our lives in the balance. Lawyers must develop filters, or they risk unhealthy absorption of client trauma.

Family lawyers often work with people with personality disorders, which further complicates the practice.10 Effective problem solving becomes impossible with these damaged personalities. Gamesmanship and dishonesty permeate the case, leading to multiple remedial court appearances. While the majority of cases present two mentally healthy people who are situationally upset about the divorce, the presence of deeply troubled souls in family court is undeniable and unavoidable. The added burdens placed on the family lawyer to manage them requires fortitude, self-discipline, and patience.

Unreasonably litigious personalities are also common in family court. The author’s divorce lawyer father described these people as suffering from “litigation neurosis.” When emotion governs reason, chaos is the result. Advising clients against a course of action is often more taxing than acting upon their request, no matter how wayward or unreasonable. Some otherwise good lawyers, due to burnout or cynicism, take unreasonable positions to mollify an angry client. And while these litigious personalities place pressure on the opposing party and his or her counsel, the hardball tactics rarely pay dividends in the final equation. Their goal often is to frighten or wear out the opponent and to force an otherwise inadequate settlement by attrition. Responding to these types of personalities is yet another element of pressure that family lawyers regularly confront.

III. Monsters Under the Bed

Long-term exposure to stress causes physical and mental ailments impacting a lawyer’s ability to professionally function. While some effectively adapt and develop healthy responses to the demands of the profession, others fail to respond to do so. Harold Stanton, a family lawyer, in his article Zen Techniques for the Family Lawyer, created a list of questions to help practitioners identify many of the ailments confronting overstressed family lawyers:

  • Waking up in the middle of the night worrying about a case and having difficulty falling back to sleep?
  • Suddenly panicking at the thought that you’ve made a horrendous mistake, only to find out it wasn’t true?
  • Losing self-confidence because you cannot intellectually figure out what to do in a difficult situation?
  • Getting caught up in your client’s emotional turmoil and losing your objectivity?
  • Being thrown off track by overreacting to a hostile comment or tactic of opposing counsel?
  • Being worried about your ability to perform in court because you have butterflies in your stomach?
  • Failing to recognize what was really going on in a situation because you were so preoccupied with your own thoughts?
  • Forgetting to say something in oral argument that you had previously put on your detailed list of important points?
  • Becoming anxious and worried that something negative will happen, for no apparent reason?
  • Self-medicating for the purpose of calming down after a stressful day?11

And with these “monsters under the bed,” lawyers risk becoming dysfunctional. Deadlines are missed or important matters are overlooked. But it is within our control to slay those monsters. More often than not, it is our own minds and our inability to think clearly that create our own suffering and anguish. But there is a way out.

IV. Mind: The Heart of the Matter

The purpose of this Article is not to lament the difficulties of practicing law in the modern world, but rather to explore methods to work and live well in this turbulent profession. While technology and economics present unique challenges, stressful times are nothing new. In fact, in most ways we fare much better than our ancestors. In modern times there are mostly “virtual” lions looking to eat us rather than real ones. When stressed, we perceive our problem as real threats even though they are more accurately described as the creations of an overtaxed brain.

Despite the persistent negativity of many political and cultural commentators, the long view suggests we are actually living in a positive historical period.12 While there is no question that maintaining a successful family law practice is arduous and challenging, it is not impossible to do so if one keeps perspective, maintains a healthy lifestyle, and engages in clear thinking. But in order to avoid burnout, checkout, and the inevitable fallout, a lawyer must consciously employ strategies for functioning in a high-stress environment. A multitiered approach to lawyer wellness must be employed.

This Article does not speak to the obvious importance of exercise, diet, sleep, and all of the other components of good health. Many other resources address those building blocks of wellness. Rather, this Article introduces lawyers to thinking through obstacles that actually derive from false thinking. Not unlike the character of John Nash using his intellect to work his way through his schizophrenic illusions in the film A Beautiful Mind,13 lawyers must use their considerable intellects to think their way out of the stress and anxiety that are inherent in the practice of law.

V. What Can We Control?

The author was introduced to Stoic thought by author Ryan Holiday in his book The Obstacle Is the Way.14 Holiday applies philosophic principles to illustrate how historical figures have turned their trials into triumphs.15 Relying primarily on the writings of Marcus Aurelius, Holiday introduces the reader to Stoic philosophy as a means to confront real-life problems.16

The Stoic school was founded by Zeno of Citium in 300 BCE in Athens. Its name derives from the school’s meeting place, the Stoa Poikile, “the painted porch” in central Athens. The Stoics competed with other philosophical schools including the Cynics, Epicureans, Plato’s Academy, and Aristotle’s Lyceum.17 While most of the writings of the early Greek Stoics have been lost to time, modern Stoic thought derives from the Roman Stoics of the early Common Era. The most prominent of the Roman Stoic writers include Epictetus, Seneca, and Marcus Aurelius. According to Antonia Macaro in her book More Than Happiness: Buddhist and Stoic Wisdom for a Sceptical Age, “[b]y the beginning of the third century CE the Stoic school was declining, but the Roman Stoics continued to influence philosophers and psychologists with almost unbroken popularity until today.”18

Roman Stoics were not a cult of outsiders or dreamers. They faced real-world adversity and used philosophy to understand and respond to it. The life of Marcus Aurelius was one such example. He was considered the last of the Five Good Emperors of Rome. Despite being the most powerful man in the world and the head of the Roman Empire, he did not have an easy life. He spent much of his term as emperor defending barbarian invasions at the Roman borders and court intrigue in Rome. He confronted a horrible plague, marital infidelity, a coup, and a wayward son and heir. And you think you have problems! He embraced this adversity to strengthen himself rather than lament his circumstances.

Stoic philosophy is a practical guide for those working in a world of conflict. Like some “escapists” including the philosopher Epicurus, the Stoics did not advocate avoidance to obtain happiness. Rather, they recognized their responsibilities as citizens and their obligation to live and work in the world. Instead of hiding in a cave, they accepted life as it was, adapting to circumstances as they actually existed (rather than how they wanted them to exist). Lawyers have much to learn from these guides.

Another prominent Stoic from an earlier century than Aurelius was Lucius Annaeus Seneca, who was a writer and philosopher. He was also the tutor to Emperor Nero and later his speech writer. In large part due to his relationship with Nero, he was one of the richest men in Rome during his life. Like Aurelius, despite his wealth and connections, Seneca did not live a trouble-free life. Prior to becoming Nero’s tutor, he was banished by Emperor Claudius to Corsica. Later, living under the paranoid and tyrannical Nero, Seneca needed to be constantly on guard. Intrigue was a regular aspect of his life. Ultimately, Nero forced Seneca to commit suicide, accusing Seneca of conspiring against him.19

There are many modern-day adherents to Stoicism. One notable devotee is Vietnam prisoner of war and war hero James Stockdale. In a paper for the Naval Academy about Stoicism, Stockdale wrote that Stoicism helped him survive seven years as a Vietnamese POW. Stockdale recounts when he was first shot down over Vietnam on September 9, 1965, he muttered to himself, “Five Years down there at least. I’m leaving behind the world of technology and entering the world of Epictetus.”20 When asked about the benefits of Stoicism, Stockdale cited Epictetus, “Somebody asked Epictetus: ‘What is the fruit of these doctrines?’ He answered with three sharp words: ‘Tranquility, Fearlessness, and Freedom.’”21

Others have also expressed admiration for Stoic philosophy. Bill Clinton has described Marcus Aurelius’s Meditations as one of his favorite books, rereading it every year.22 Wen Jiabao, the former prime minister of China, claims to travel with Meditations, having read it over 100 times.23 Two of our founding fathers, Washington and Jefferson, both were students of Stoicism.24 Author, investor, and podcast host Tim Ferris describes Stoicism as “the optimal operating system for thriving in high stress environments.”25

Ryan Holiday describes Stoicism as a method to view events. “The philosophy asserts that virtue (such as wisdom) is happiness and judgment should be based on behavior, rather than words. That we don’t control and cannot rely on external events, only ourselves and our responses.”26 One of the key tenets of Stoicism was stated succinctly by the Roman philosopher Epictetus, who survived a tortured life as a slave to become one of the principle teachers of this school:

Work, therefore to be able to say to every harsh appearance, “You are but an appearance, and not absolutely the thing you appear to be.” And then examine it by those rules which you have and first, and chiefly, by this: whether it concerns the things which are in our control, or those which are not; and if it concerns anything not in our control, be prepared to say it is nothing to you.27

What can one really control in his or her life? The answer is little but the attitude used to perceive the event. This is a profound insight instructive to a modern lawyer. Practice of this principle leads to a deep paradigm shift in daily thinking. Much of the turmoil we experience is beyond our control. It is how we choose to observe it that will affect our mental and emotional wellness.

This notion is universal. The Buddha used the parable of the second arrow to teach this principle. He described two arrows as metaphors. The first is the arrow that initially injures one. The second arrow is self-inflicted: It is an injury caused to oneself by one’s mindless reaction to the first arrow. Accepting injury is often unavoidable; how one reacts to the injury, however, is within one’s control. Psychiatrist and concentration camp survivor Viktor Frankel, centuries later, expanded on this thought, “Between stimulus and response there is a space. In that space is our power to choose our response. In our response lies our growth and our freedom.” Controlling one’s reactivity to events is the first step to equanimity despite the swirl of external events.

Law professor and Stoic scholar Ward Farnsworth observes, “We get attached to things we can control and that if managed better, would bring us peace. Stoicism tries to make us conscious of this pattern and reverse it.”28 While Stoics want to succeed as much as anyone, they are not attached to a particular outcome because it is usually not within their control. Attachment leads to worry and fear—futile emotions over events beyond one’s control. The Stoics would advocate for one to let go of anything one cannot control: This is the path to tranquility and happiness.

Often trial lawyers in their attachment to victory and success lose sight of the fact that they do not control the outcome of a particular matter. Lawyers’ roles are not to guarantee a result. Consider the clear-eyed observation of the great contemporary trial lawyer David Boies: “[W]hy should I worry? Because I might lose? That’s the worst thing that could happen to me?”29 A true Stoic observation.

While all lawyers want to win a motion or a trial, too many variables affect the outcome. Lawyers can only control the following: their level of preparation, development of a response to opponents’ theories and arguments, communication of proper expectations to the client, and emotional readiness at the time of the event. Lawyers cannot control the conduct of the opposing attorney, legal authorities, the judge’s perception of the case or client, or the ultimate ruling. Reacting to these variables is useless and a waste of mental energy. According to Stoic thought, lawyers should pay no heed to variables outside of their control.

One should consider a court argument as a baton that is passed between the advocate and the judge. The lawyer’s job is to argue the matter, not to guarantee a result. The judge’s job is to determine the outcome. At the point that the advocate passes the figurative baton of the argument to the judge, the lawyer has done his or her job. Now it is up to the judge to rule, and the lawyer can be at peace. While this heuristic is easier said than done, reframing court contests in this fashion relieves pressure on the advocate and allows a sense of equanimity regardless of the result.

Lawyers sometimes create unnecessary problems for themselves by failing to communicate appropriate expectations for clients. While client expectations may ultimately be out of a lawyer’s control, what is within the lawyer’s control is providing a clear description of possible outcomes. When a lawyer creates a false expectation or optimistically paints a rosier picture than appropriate, lawyers create client expectations that often can’t be met. And certainly, a failure to create expectations will result in false expectations. False expectations lead to client disappointment and even anger when results don’t meet expectations. If proper expectations are communicated in advance and results are not as one hopes, the pressure on the lawyer is less than for one who promised the moon and delivered the cheese.

VI. Managing Conflict

One experience common to all family lawyers is exposure to adversity. One’s relationship with one’s opponents, judges, and, on occasion, one’s own client is sometimes adversarial. While most lawyers (and emotionally healthy people) prefer peaceful coexistence, conflict is a necessary element of the profession. Wise people endure strife as necessary but don’t choose it as optimal. Nevertheless, the Stoics recognized it as endemic to life and nothing to bemoan. According to the Stoics, and perhaps counterintuitively, avoiding conflict is antithetical to one’s equanimity. Instead one should embrace conflict as a challenge and opportunity. Marcus Aurelius looked to adversity as a means of achieving excellence:

The impediment to action advances the action.

What stands in the way becomes the way.30

According to Farnsworth, “Stoicism offers a series of strategies for turning adversity to good.”31 Farnsworth further observes how Stoics observe adversity or setbacks: “Stoics interpret it as constructively as possible—as a chance to prove oneself, or to learn, or to build anew and the value of any of these responses may be greater than the cost of the adversity.”32 Stoicism incorporates the notion of “Amor Fati,” loving one’s fate. This concept derives from Epictetus, who wrote, “Don’t demand that things happen as you wish, but wish that they happen as they do happen, and you will go well.”33 One is thus instructed to not just accept an unfavorable result, but to love it as though it was desired regardless of its impact. When one is confronted by a challenge, instead of self-pity or scorn, the negative attitude should be converted into one of gratitude for an opportunity to explore creative solutions or different avenues of exploration. This concept sounds like “don’t worry, be happy” naiveté, but its roots rest in a cosmological trust of fate and will of the natural order.34

VII. Eastern Wisdom for Lawyers

The Stoics did not have a monopoly on strategies for confronting difficult emotions. Eastern philosophy incorporates many of the principles relied on by the western Stoics to manage life’s challenges. Much guidance can be found in Buddhist and Taoist teaching. Similar to the Stoics’ notion of reframing adversity into a positive is the concept of acceptance. Also known as surrender, acceptance urges one to accept events rather than resisting them; this is the key to peace and freedom. As Buddhist teacher and psychologist Tara Brach observed, “The way out of our cage begins with accepting absolutely everything about ourselves and our lives, by embracing with wakefulness and care our moment to moment experience.”35 Like the Stoics’s notion of discernment of events beyond one’s control, Buddhists suggest acceptance as a path to equanimity.

Using meditation as a form of mental training, one can learn to observe his or her feelings, thoughts, emotions, and physical sensations. Meditation is not designed as a vehicle to escape unpleasant feelings, but rather to become aware of them and to learn from them. Learning to identify what one is feeling or thinking at any given moment helps quell strong or negative emotions. As writer and teacher Eckhart Tolle observes, “Forgive yourself for not being at peace. The moment you completely accept your non-peace, your non-peace becomes transmuted into peace. Anything you accept fully will get you there, will take you into peace. This is the miracle of surrender.”36

All people engage in self-talk and maintain a running internal dialogue judging everything that happens as good or bad. The Buddhists refer to this as the “monkey mind,” the incessant internal chatter judging or coloring reality.37 One must become aware of that involuntary chatter to manage it. Many of the stories people tell themselves are fiction. Meditation is a means of quieting the monkey and observing things as they truly are. Once one does so, one can appropriately respond.

Mindfulness is an overused expression, but it essentially involves living life intentionally and not existing in a trance. One doesn’t realize how frequently irrational thoughts bombard one’s psyche. Becoming aware of one’s thoughts and triggers is a helpful method to avoid reactivity and upset. And once one becomes aware of his or her triggers, one can appropriately plan for an unpleasant encounter or consciously abstain from acting inappropriately.

Buddhist teacher and psychoanalyst Tara Brach suggests a method to address strong emotions she calls R.A.I.N. When one is bothered or upset by a thought or emotion, the first step is to recognize the upset. People often bottle up anxiety or anger unconsciously. Awareness or recognition is the first step to freedom. The next step in the Brach analysis is to allow the emotion, rather than suppressing or fighting it. Allowing it into one’s consciousness carries with it the acceptance necessary to address it. Next Brach suggests investigating the emotion in one’s body and exploring its source. Brach has lectured as to the importance of being conscious of sensations in one’s body as a means to presence.38 When one becomes disembodied and lives in the fictions and stories in one’s head, problems become worse. The fourth step in the R.A.I.N. analysis is to nurture oneself, to remain compassionate toward oneself rather than criticizing or judging oneself as weak or damaged.

A practicing lawyer can rely on the R.A.I.N. method to maintain composure rather than reacting to unwanted events. When confronting something unexpected or disappointing, instead of suppressing the unwanted emotion (fear or anger) allow it, embrace it, and investigate it. While there are practical limitations to this exercise during the heat of battle, pausing to take a few deep breaths allows one to acknowledge his or her mental or emotional state. By doing so, one can avoid regrettable reactions to incitement or other negative behavior. One of the best lessons a trial lawyer can learn is how to stay composed and calm regardless of the provocation.

VIII. Internalize Judgment

Like others, lawyers are not beyond concerns about what others think of them—perhaps even more so due to lawyers’ strong egos and competitive temperaments—but the Stoics would caution against this. The Stoics resist the need for praise as unnecessary. According to Farnsworth, “Stoicism tries to substitute a greater respect for one’s own opinions, and urges one to practice at valuing things for what they are rather than for what anyone else thinks about them.”39 The inverse of praise, of course, is insult or criticism. When the ego is bruised by criticism, it is normal to react with disdain. But the Stoics would see the insult as meaningless, except as it is interpreted by the recipient. Upset is within one’s control, unlike what comes out of the mouth of someone else. Disregard the insult as unworthy and move on.

The Stoics would have responded to unfair criticism either by rationalizing it (consider the source), gratitude (to help redirect), or even compassion (the unjust critic knows no better). Seneca advocated depreciating the source of the criticism:

It is the mark of a great mind to disregard injuries; it’s the most insulting way to take revenge if the man from whom one seeks vengeance doesn’t even seem worth the trouble. Many have raised small slights to a higher level by avenging them. By contrast, he is a great and noble person who, like a huge wild animal, listens without concern as the little hunting dogs yap.40

In other words, let insults go. Consider the insult as background noise, like a dog barking or loud traffic. Criticisms by others more often reflect their mental state and insecurity rather than an objective and discerning analysis. Biased and self-interested observations of you by others are not worth getting worked up over. Internalize the quality (or lack thereof) of your conduct or your work.

Marcus Aurelius observed in Meditations, “The tranquility that comes when you stop caring what they say. Or think, or do. Only what you do. (Is this fair? Is this the right thing to do?) . . . not to be distracted by their darkness. To run straight for the finish line, unswerving.”41 According to Emperor Aurelius, we should internalize our actions and know for ourselves when they are proper and appropriate and when one veers from the proper course. The opinion of others does not matter. Stay true to one’s self.

Aurelius wrote his Meditations not as a book to publish, but as a form of therapy. The meditations themselves are frequently written in the second person, as though he was writing reminders to himself or giving himself pep talks to prepare for the day. For example, his first comment in Book 2 is Aurelius bracing himself for a challenging day ahead:

When you wake up in the morning, tell yourself: The people I deal with today will be meddling, ungrateful, arrogant, dishonest, jealous and surly. They are like this because they can’t tell good from evil. But I have seen the beauty of good, and the ugliness of evil, and have recognized that the wrongdoer has a nature related to my own—not of the same blood or birth, but the same mind and possessing a share of the divine. And so none of them can hurt me. . . .42

Lawyers deal with difficult people daily. When Aurelius would get stuck dealing with an unpleasant person, he’d simply say to himself, “‘There has to be shameless people in the world. This is one of them.’ By remembering that there was an entire class of difficult personalities allowed him to be less upset with the individual in front of him.”43 Note that he thought his way through the challenges of dealing with difficult people and circumstances rather than fuming or fretting. This is the essence of Stoic thought.

Lawyers often face criticism from their own clients. While all lawyers want a happy client, sometimes that is not possible. Client criticism should not be taken to heart (unless, of course, those criticisms are warranted). And if so, one should learn from them to improve in the future. One must evaluate for one’s self if the job done was satisfactory, exemplary, or substandard. But allowing others who lack adequate knowledge of the totality of the circumstances to influence one’s self-worth is antithetical to the Stoic ideal and detrimental to one’s well-being.

In general, Stoics believed that events themselves are insignificant, and that it is our judgment about the event that affects us. As Farnsworth observes, “Pains and pleasures are made bigger or smaller by the way we talk to ourselves about them, or by the judgments that are too deep to articulate but are nevertheless our own. We underrate the power of these judgments because we barely notice them.”44 How we interpret events guides our reaction. Epictetus observed, “Men are disturbed not by the things that happen but by their opinions about those things. . . . So when we are impeded or upset or aggrieved, let us never blame others, but ourselves—that is our opinion.”45

IX. Fear-Based Thinking

Many lawyers suffer from what the author refers to as “Sunday night disease.” This condition can be described as the dread or nausea felt in anticipation of the many battles to ensue in the coming week. But it’s all an illusion. Nobody can properly anticipate the future, considering all of the variables at play, and it is nonsensical to worry about things that may never happen. The author once had a professional coach46 who reminded him that the word fear can be an acronym for what it typically is: “False Evidence Appearing Real.” Fear-based thinking can paralyze lawyers into making poor choices, settling cases that should be tried, and generally acting in a way that does not serve a client’s interests. Conquering one’s fear and addressing adversity in a clear-eyed manner are critical to a lawyer’s success.

Cicero, the great Roman lawyer, describes the thought process of another Stoic hero, Cato the Younger, in his dialogue De Finibus. Writer and behavioral psychotherapist Donald Robertson uses this anecdote to explain how Marcus Aurelius conquered his fear:

Cato of Utica uses the memorable image of an archer or spearman to explain this subtle concept. The Stoic-minded archer’s true goal should be to fire his bow skillfully, insofar as doing so is within his power. Paradoxically though he’s indifferent to whether or not his arrow actually hits the target. He controls his aim but not the arrow’s flight. So he does the best he can and accepts whatever happens next.47

As illustrated by this parable, fear-based thinking often comes from a failure to recognize that outcomes usually cannot be controlled. When one’s focus moves from something one can control (level of preparation) to a paralyzing fear of a negative result, poor results may follow.

Fear of failure can become a self-fulfilling prophecy. As professor and martial artist Danielle Bolleli observes:

I don’t think too many human beings are naturally above caring about victory and defeat. It’s imprinted in us to care about the outcome of our actions. While this may be natural and normal, the problem is that we can never fully control the outcome. Usually, in life there are too many variables at play. So, no matter how mightily we strive or how intense our effort, odds are that at least some of the time we will come up short of our goals. And what makes things even more complicated is that the more attached you are to the outcome, the more tension and fear you will experience at the thought of possibly facing a crushing defeat—which reduces our effectiveness, since part of our energy is trapped in the jaws of fear.48

To conquer performance anxiety or a fear of failure, one must think clearly and constantly question one’s assumptions. As Farnsworth observes, “We torment ourselves with fear of things that are more easily endured than worried about. We constantly overlook the present moment because we are preoccupied with future states that will in turn be overlooked when they arrive.”49 Ironically, it is in the present moment when we can most influence the future by applying our energy to things within our control (our level of preparation for example).

The Stoics considered courage as a high ideal.50 One must forge ahead despite one’s doubts and uncertainty. Courage was considered one of the four Stoic ideals. Prudence is the science of what ought and ought not to be done; courage is the science of what ought and ought not to be tolerated; temperance is the science of what ought and ought not to be chosen; and justice is the science of what ought and ought not to be distributed.51

Developing the insight to “know when to hold them and know when to fold them”52 is a critical skill a lawyer must develop. Undoubtedly, one develops this skill through intuition honed by experience (and a few metaphorical bloody noses). But additionally, it is enhanced by a thought process unfettered by fear and the “what ifs?” of the imagination. Weigh options objectively, look at the consequences of a course of action clearly and unemotionally, and decide on a proper response rather than acting with undue caution birthed by fear.

Challenges are opportunities to grow or test one’s self. Instead of dreading a particular matter, the lawyer should consider it a test: a test of one’s skill, patience, composure, or self-control. And self-talk needs to be tempered as well. “I have to . . .” is different than “I get to. . . .” While it is easy to dismiss looking at challenges as opportunities as a simplistic platitude, it has worked for many of the great leaders and thinkers of history.

Look at all events or occurrences as part of a greater whole. One cannot judge whether an occurrence will ultimately be a good or a bad thing. One must humbly accept that he or she lacks sufficient insight into how a particular event will ultimately play out. The philosopher Alan Watts uses a Zen parable to illustrate this notion:

Once upon a time there was a Chinese farmer whose horse ran away. That evening, all of his neighbors came around to commiserate. They said, “We are so sorry to hear your horse has run away. This is most unfortunate.” The farmer said, “Maybe.” The next day the horse came back bringing seven wild horses with it, and in the evening everybody came back and said, “Oh, isn’t that lucky. What a great turn of events. You now have eight horses!” The farmer again said, “Maybe.”

The following day his son tried to break one of the horses, and while riding it, he was thrown and broke his leg. The neighbors then said, “Oh dear, that’s too bad,” and the farmer responded, “Maybe.” The next day the conscription officers came around to conscript people into the army, and they rejected his son because he had a broken leg. Again all the neighbors came around and said, “Isn’t that great!” Again, he said, “Maybe.”

The whole process of nature is an integrated process of immense complexity, and it’s really impossible to tell whether anything that happens in it is good or bad—because you never know what will be the consequence of the misfortune; or, you never know what will be the consequences of good fortune.53

This story is applicable to the events of lawyers’ professional lives. One is often quick to judge a particular occurrence on a case as devastating. Such a thought is toxic to a lawyer’s well-being. It is critical to maintain a long-term perspective.

Fear-based fictions tend to conquer reason and common sense. For example, a settlement that falls through at the last moment is thought of as devastating. Or an important motion is denied. Or at trial the client’s testimony is lackluster. Conversely, the lawyer becomes ecstatic when an expert report is beneficial. Can these developments be judged in a vacuum? Maybe. But the author would argue that by attempting to do so, a lawyer is causing himself or herself undue anxiety and suffering. One must let things unfold as they will. Premature judgment is futile.

X. Surviving Family Law

Farnsworth describes Stoicism as a “regimen for training of the mind.”54 The concepts described in this article require practice and discipline, much like the development of any skill. Here are some of the techniques used by the Stoics and others to improve the quality of their thinking and thus the quality of their lives:

A. Daily Reflection

Stoics recognized how arduous it was to maintain clear thinking. This is why regular reflection is integral to maintaining one’s self control and perspective. Seneca would take quiet time at the end of each day and reflect on his entire day, his personal victories and where he fell short. Working on one’s character was done daily by the Stoics and one would be wise to follow their lead. Consider the following when reflecting on the preceding day:

  1. Did I maintain myself in a patient and dignified manner today?
  2. Was I respectful to myself, my opponents, the court, and my clients?
  3. Did I maintain my composure or become irritated today?”
  4. Was I cheerful or otherwise?
  5. Did I grumble or complain or maintain a positive mental attitude today?
  6. Did I engage in any negative self-talk?
  7. Did I act out of anger at any point?
  8. Did I manage my time wisely or fritter it away mindlessly?
  9. Did I consider obstacles as opportunities?
  10. Awareness leads to growth and improvement, which ultimately lead to peace and contentment.

B. Negative Visualization

One not only benefits from reflections on what has already occurred but should anticipate upcoming events. By doing so one can contemplate things that one expects to be bothersome. A common Stoic exercise is negative visualization. Seneca believed that if one contemplates bad outcomes, it lessens their impact if and when they happen. “He robs present ills of their power who has perceived their coming beforehand.”55 What’s the worst thing that can happen to me? Generally, when one stops and thinks, one realizes that virtually all consequences are survivable if not surmountable. It’s not so bad. That being said, one shouldn’t obsess over worst-case scenarios. Balance negative outcomes against reality. Staying present and realistic are the keys to maintaining proper perspective.

C. Gratitude

Practicing gratitude has well-documented psychological benefits.56 Particularly when feeling pessimistic or overwhelmed, one benefits by considering one’s blessings. When one focuses attention on what one has rather than lacks, a new, more positive perspective follows. Instead of starting one’s day dreading an upcoming event, list all of the things one is grateful for. This exercise will have profound mental benefits throughout the day (and one’s life!).

D. Memento Mori.

Memento mori is a Latin expression roughly translated as to remember one’s mortality.57 Not unlike the negative visualization, the result of this somewhat morbid practice is not depression but tranquility. Other wisdom traditions incorporate this concept as well. One’s time is not infinite, and thus getting upset over trifles is stupid and a waste of one’s precious moments. Few things really matter in the larger picture of things. A lawyer friend of the author once advised him that he returned early from a trip to Rome because of his anxiety over a pending legal matter. He then asked me if I knew who that important client was. I responded, of course not. He replied, “me neither.” His point was that what seemed life or death to him at the time was in the big picture unmemorable and certainly not worth the anxiety (or the shortened trip for that matter).

One appreciates one’s life more when one recognizes that time is limited. Seneca observed, “Let us prepare our minds as if we’d come to the very end of life. Let us postpone nothing. Let us balance life’s books each day. . . . The one who puts the finishing touches on their life each day is never short of time.” The author recently tried a highly contentious case. The opposing counsel was very difficult and unpleasant to deal with. Instead of lamenting the difficulty, the author reflected that “this could be my last trial so I should enjoy every moment of it.” As a result, the pricks and slights became much more manageable. This exercise probably is more effective for a senior lawyer than a thirty-year-old, but the principle holds true regardless. Our time is limited, and by keeping this perspective, one can enjoy the whole catastrophe of life58 rather than pushing it away.

E. Journaling

By taking time to reflect daily, one can take stock and help keep perspective. The author has emulated Marcus Aurelius and maintains a daily morning journal reflecting on daily events. The act of journaling has recognized psychological benefits including stress management, reduced anxiety, and general well-being.59 Writing down one’s feelings helps one manage those feelings better and allows one to purge negative feelings on paper rather than in public. One can work through seemingly unsurmountable obstacles with quiet time, a notebook, and a pen.

Journaling also allows one to visualize future events. For example, one can anticipate an upcoming experience in one’s head and write the narrative to help anticipate the actual event. In essence, this act helps one prepare for the actual event by rehearsing it first in one’s head and then on paper. The author has actually fictionally scripted whole trials to prepare for the actual event.

F. Use of Role Models

Seneca advised, “Choose someone whose way of life as well as words, and whose very face as mirroring the character that lies behind it, have won your approval. Be always pointing him out to yourself either as your guardian or as your model. There is a need, in my view, for someone as a standard against which our characters can measure themselves. Without a ruler to do it against you won’t make crooked straight.”60 The author has started many mornings asking himself, “How would Lincoln handle this?” There is great comfort consulting with historical or contemporary role models to help guide one through difficult times. By choosing someone one admires as one’s shadow for the day, one can emulate the admirable characteristics of that person. On days requiring courage, the author looks to U.S. Grant; on days requiring patience, Gandhi; on others requiring dignity and fortitude, Lincoln. Choose models based upon the needs of the day.

G. Expanding One’s Resources

Read deeply from great books. Study biographies, history, philosophy, literature, and other classics. Reading about others who have confronted adversity helps one maintain perspective. Study how historical figures have contended with their own problems. Using these references provides valuable wisdom to access during turbulent times. Spending the evening with Cicero will do more for one’s emotional health than the next Survivor episode.

XI. “Tranquility, Fearlessness, and Freedom”

Lawyers are privileged to make a difference in people’s lives. The challenges of practicing family law are taxing, and the lifestyle can be awful, but at the end of the day, the benefits outweigh the grief. The author has practiced law for thirty-five years and practices the Stoic principles outlined in this article daily. Adherence to this way of thinking requires determination, commitment, and strength. But the rewards are worth the price. As Epictetus observed, the goal of Stoic philosophy is to achieve “Tranquility, Fearlessness and Freedom.” Thinking one’s way though the trials and tribulations of a family law practice allows one not only to survive but to be happy. Make friends with the demons, and by doing so they are conquered. All have bad days, but bad days don’t make bad lives. Days come and go, some better than others. But in the end, remember the wisdom of Emperor Aurelius: “[E]xternal things are not the problem. It’s your assessment of them. Which you can erase right now.”61

Endnotes

1. Clark D. Cunningham, What Do Clients Want from Their Lawyers, 2013 J. Disp. Resol. 143 (2013).

2. Eric Sigurdson, The Legal Culture: Chronic Stress, Mental Illness and Addiction—Law Firms, Legal Departments, and Eight Organizational Strategies to Reduce Burnout and Promote Engagement, Sigurdson Post (Nov. 19, 2017), http://www.sigurdsonpost.com/2017/11/19/the-legal-culture-chronic-stress-mental-illness-and-addiction-law-firms-legal-departments-and-eight-organizational-strategies-to-reduce-burnout-and-promote-engagement/.

3. Christopher Grengs, Competition, Innovation, and Legal Services, Fed. Trade Comm’n: Competition Matters (June 15, 2016), https://www.ftc.gov/news-events/blogs/competition-matters/2016/06/competition-innovation-legal-services.

4. Rachel M. Zahorsky, Facing the Alternative: How Does a Flat Fee Billing System Actually Work?, A.B.A.: In Depth Reporting (Mar. 1, 2012), http://www.abajournal.com/magazine/article/facing_the_alternative_how_does_a_flat_fee_system_really_work.

5. Debra Cassens Weiss, Lawyer’s Response to Client’s Bad Avvo Review Leads to Disciplinary Complaint, A.B.A.: Daily News (Sept. 12, 2013), http://www.abajournal.com/news/article/lawyers_alleged_response_to_bad_avvo_review_leads_to_disciplinary_complaint/.

6. Lorelei Laird, ABA Study Suggests Legal Malpractice Insurers Are Settling Sooner, A.B.A.: Daily News (Oct. 17, 2016), http://www.abajournal.com/news/article/aba_study_suggests_legal_malpractice_insurers_are_settling_sooner.

7. Nancy Levit & Douglas O. Linder, The Happy Lawyer 53 (Oxford Univ.y Press 2010).

8. Stephanie Francis Ward, Less Than Half of Recent Law Grads Had “Good Jobs” Waiting After Graduation, Report Says, A.B.A.: Daily News (Jan. 16, 2018), http://www.abajournal.com/news/article/less_than_half_of_recent_law_grads_had_good_jobs_waiting_for_them.

9. Levit & Douglas, supra note 7, at 59.

10. K.L. Disney, Y. Weinstein & T.F. Oltmanns, Personality Disorder Symptoms Are Differentially Related to Divorce Frequency, 26 J. Fam. Psychol. 959 (2012).

11. Harold J. Stanton, Zen Meditation for the Family Lawyer: Part I, Fam. Law. Mag. (Sept. 3, 2014), https://familylawyermagazine.com/articles/zen-techniques-one/.

12. See, e.g., Hans Rosling, Ola Rosling & Anna Rosling Ronnlund, Factfulness: Ten Reasons We’re Wrong About the World—and Why Things Are Better Than You Think (Flatiron Books 2018).

13. A Beautiful Mind (Universal Pictures et al. 2001).

14. Ryan Holiday, The Obstacle Is the Way (Portfolio/Penguin 2014).

15. Id.

16. Id.

17. Antonia Macaro, More Than Happiness: Buddhist and Stoic Wisdom for a Sceptical Age 5 (Icon Books Ltd. 2018).

18. Id.

19. Emily Wilson, The Greatest Empire: A Life of Seneca (Oxford Univ. Press 2014).

20. Nancy Sherman, Stoic Warriors: The Ancient Philosophy Behind the Military Mind 1 (Oxford Univ. Press 2005).

21. James B. Stockdale, Stockdale on Stoicism I: The Stoic Warriors Triad, U.S. Naval Acad., https://www.usna.edu/Ethics/_files/documents/stoicism1.pdf; see also James B. Stockdale, Stockdale on Stoicism II: Master of My Fate, U.S. Naval Acad., https://www.usna.edu/Ethics/_files/documents/Stoicism2.pdf.

22. Holiday, supra note 14.

23. Id.

24. Id.

25. Richard Feloni, The 4-Hour Workweek Author Tim Ferris Shares the 5 Books That Have Influenced Him Most, Bus. Insider (Dec. 8, 2016), https://www.businessinsider.com/tim-ferriss-favorite-books-2016-12#moral-letters-to-lucilius-by-seneca-the-younger-1.

26. What Is Stoicism and 9 Stoic Exercises to Get You Started, Daily Stoic (2019), https://dailystoic.com/what-is-stoicism-a-definition-3-stoic-exercises-to-get-you-started/.

27. Epictetus, Enchiridion 1 (The Big Nest 2016).

28. Ward Farnsworth, The Practicing Stoic: A Philosophical User’s Manual XXVII (2018).

29. Timothy Harper, Boies v. Bush v. Gore, Super Law.: Articles (Sept. 2008), https://www.superlawyers.com/new-york-metro/article/boies-v-bush-v-gore/37a36d0f-02cc-4efd-b2f4-b37908a4a95c.html.

30. Marcus Aurelius, Meditations 60 n. 5:20(Gregory Hays trans., Modern Library paperback ed. 2003).

31. See Farnsworth, supra note 28.

32. Id.

33. See Epictetus, supra note 27, at 8.

34. Pierre Hadot, The Inner Citadel 143 (Michael Chase trans., Harvard Univ. Press 1998).

35. Tara Brach, Radical Acceptance: Embracing Your Life with the Heart of a Buddha 25 (Bantam Books, reprt. 2004).

36. Eckhart Tolle, The Power of Now: A Guide to Spiritual Enlightenment New World (Library Novato Cal. & Namaste Pub’g Vancouver Can. 1999).

37. Diana Raab, Calming the Monkey Mind, Psychol. Today: The Empowerment Diary (Sept. 13, 2017), https://www.psychologytoday.com/us/blog/the-empowerment-diary/201709/calming-the-monkey-mind.

38. Tara Brach, Resources for RAIN Partners, Tara Brach: Resources, https://www.tarabrach.com/rain/.

39. See Farnsworth, supra note 28, at 120.

40. Seneca, How to Keep Your Cool 83–85 (James Romm trans., Princeton Univ. Press 2019).

41. See Aurelius, supra note 30, at 4:18.

42. Id. at 2:1.

43. What to Do When You Meet a Jerk, Daily Stoic, https://dailystoic.com/what-to-do​-when-you-meet-a-jerk/.

44. See Farnsworth, supra note 28, at 5.

45. See Epictetus, supra note 27, at 5.

46. Cindy Rold, Coaching, Cindy Rold, http://cindyrold.com/coaching/.

47. Donald Robertson, How to Think Like a Roman Emperor: The Stoic Philosophy of Marcus Aurelius 194 (St. Martin’s Press, 1st ed. 2019).

48. Philosophy, Fighting and Martial Arts Mythology: An Interview with Daniele Bolelli, Daily Stoic, https://dailystoic.com/daniele-bolelli-interview/.

49. See Farnsworth, supra note 28, at XXIX.

50. See Hadot, supra note 34, at 233.

51. Id.

52. Kenny Rogers, The Gambler (United Artists Records, 1979).

53. Wells Baum, Alan Watts: The Story of the Chinese Farmer, Wells Baum Blog (Jan. 27, 2018), https://wellsbaum.blog/alan-watts-story-of-the-chinese-farmer.

54. See Farnsworth, supra note 28, at 223.

55. William B. Irvine, A Guide to the Good Life 65 (Oxford Univ. Press, 1st ed. 2009).

56. Nils Salzgeber, 29 Scientifically Proven Benefits of Gratitude You Don’t Want to Miss, NJ Life Hacks Blog, https://www.njlifehacks.com/gratitude-benefits/.

57. “Memento Mori”: The Reminder We All Desperately Need, Daily Stoic Blog, https://dailystoic.com/memento-mori/.

58. Jon Kabat-Zinn, Full Catastrophe Living (Bantam Books, 1st ed. 1990).

59. Journaling for Mental Health, Univ. of Rochester Med. Ctr.: Health Encyclopedia, https://www.urmc.rochester.edu/encyclopedia/content.aspx?ContentID=4552&ContentTypeID=1.

60. Your Best Day Yet: Three Stoic Reminders to Start Your Day With, Daily Stoic Blog, https://dailystoic.com/your-best-day-yet-three-stoic-reminders-to-start-your-morning-with/.

61. See Aurelius, supra note 30, at 110.

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Steven N. Peskind

Steven N. Peskind, of the Peskind Law Firm P.C. in St. Charles, Illinois, writes frequently on family law topics. He most recently authored the USA–Illinois chapter for Family Law 2020, A Practical Cross-Border Insight into Family Law (Int’l Comparative Legal Guides 2020).