A variety of events over the past several years have renewed my conversations with some reliable old friends. And I mean very old. I refer here to the Stoic philosophers, most of whom did their thinking and writing around the turn of the Common Era.
The Stoics took their name from the central square of Athens, the Stoa Poikile, where Zeno is generally credited with founding the school in the early part of the third century BCE. Various philosophers over the next five centuries identified themselves as Stoics, so the label takes in lots of personalities and lots of territory. But I’m particularly fond of the later Stoic philosophers: Seneca, Epictetus, and Marcus Aurelius.
I discovered the later Stoics in the 1980s during my brief and inglorious career as a philosophy graduate student. Since then, they have helped me traverse many of life’s trickiest terrains. But it was only during my most recent encounter with their thought that I realized how much good advice they have for litigators who struggle to find happiness in their profession.
And struggle we may. Let’s be honest: Whatever its virtues, our work can sometimes wear on us. It is, by nature and design, adversarial, argumentative, and arduous. And it has more than its fair share of stress, anxiety, frustration, and, well, knuckleheads.
It might seem surprising that a collection of ancient philosophers would have useful things to say to modern trial lawyers. But the later Stoics were practical thinkers who were engaged with the world around them, and they spent a great deal of time and energy trying to answer the same question that vexes us: How do we enjoy meaningful, fulfilled, and contented lives in a context that includes so much conflict, pressure, and grueling effort?
The later Stoics were well acquainted with trouble; indeed, their problems make most of ours look trifling. Seneca (1 BCE–65 CE) spent his career caught up in the intrigues of Roman politics—that is, until Nero ordered him to commit suicide. Epictetus (55 CE–135 CE) went through life with a badly lame leg, perhaps from disease, perhaps from a beating. Things looked up for Epictetus, an enslaved person, after he received his emancipation—that is, until Domitian banished him and all other philosophers from his midst.
We might think that Marcus Aurelius (121 CE–180 CE), a Roman emperor who occupied a seat of power and privilege, had an easier time of it. But Marcus was no stranger to misfortune: He lost his father at an early age; eight of his children did not survive into adulthood; he was the target of an unsuccessful coup attempt by one of his most trusted generals; and he ruled during the Antonine Plague—a global pandemic that claimed at least five million lives over 15 years. He also suffered from lifelong health problems, as did Seneca and Epictetus.
Although the best-known ancient Stoics were men, women’s voices have played a critical role in the articulation and refinement of this philosophy. Contemporary female philosophers whom the Stoics have influenced include Martha Nussbaum, a professor at the University of Chicago, and Nancy Sherman, who teaches at Georgetown University. Confirming the practical utility of Stoicism, Professor Sherman has designed programs to introduce military service academy students and officers to this school of thought.
So what are some of the obstacles we litigators face in finding happiness in our work? And how might these Stoic philosophers help us deal productively with those challenges?
Our work takes place within an adversary system. We represent the interests of our clients in contentious, sometimes even bitterly antagonistic, circumstances. In short, we fight for a living. Little wonder cynics describe us (and we sometimes only half-jokingly describe ourselves) as “hired guns.”
Furthermore, our clients don’t want us to bring a knife to the gunfight. They think they’re at war and they expect us to come appropriately armed. The story goes that the great wit Robert Benchley, emerging from a New York nightclub after a few drinks, once tapped a uniformed gentleman on the shoulder and asked him to call a cab. The stranger furiously informed Benchley that he was not a doorman but an admiral in the Navy. “OK,” Benchley replied, “then get me a battleship.” That’s what our clients want in us: their own personal aircraft carrier.
Having mentored law school students and new lawyers for more than 35 years, I have noticed some general patterns among those who find litigation attractive. They enjoy a good argument. They warm to competition. Many of my students who aspire to a career in litigation have years of experience playing a sport at a high level or participating in a nationally recognized debate team. Full disclosure: As a third-degree black belt in Tae Kwon Do with a lifelong fondness for verbal jousting, I fulfill my own stereotype.
People who fit this description don’t shy away from a feud. To the contrary, they get a kick out of what Edward Bennett Williams called “contest living.” The rush of adrenaline makes them happy. So, they reason, why not choose a career where they get paid to pump some?
An important difference exists, however, between contending with other people occasionally and doing so constantly. The day-in, day-out sparring that goes with litigation can wear on even the hardiest of combatants. And someone who enthusiastically embarked on a career as a trial lawyer may, after a few years, wonder why he or she didn’t pursue a less contentious line of work, like professional cage fighting or alligator wrestling.
The Stoics understood how adversarial and difficult existence can be, but they thought that struggle inhered in the human enterprise. “Every life is a warfare,” Epictetus declared, “and that long and various.” Epictetus, The Golden Sayings, in The Harvard Classics: Plato, Epictetus, Marcus Aurelius 163 (Hastings Crossley trans., 1909). Discussing her experience in introducing military academy students to the Stoics, Professor Sherman observed: “When we arrived at Epictetus, many [of them] felt they had come home.” Nancy Sherman, Stoic Warriors: The Ancient Philosophy Behind the Military Mind 2 (2005). Little wonder, given Epictetus’s view that we all spend our lives on a battlefield.
Marcus Aurelius later echoed the sentiment. “Life is warfare,” he said, “and a visit in a strange land.” Marcus Aurelius, Meditations 21 (Diskin Clay trans., 2014). He argued that, to prepare ourselves for the challenges we’ll face in the combat that lies ahead, we should study those who engage in battle for a living. The boxer. The wrestler. Today, he might have added the litigator.
In the National Roman Museum, there is a famous Hellenistic sculpture commonly called the Boxer at Rest. It depicts a pugilist seated and trying to recover from a hard fight: His right eye is swollen, his nose appears to be broken, he breathes through his mouth. He has clearly had a tough time of it, but the sculpture magnificently conveys his fortitude and resolve. His muscles remain tense and he looks poised to rise and take on the next comer. That, the Stoics suggest, is a life well lived.
Stoic philosophy invites us to see the contentious nature of our profession in a positive light. Life is a dogfight, the Stoics said, and unavoidably so. The more time we spend wrangling, the better prepared we are for whatever new and unexpected battles the years bring us. In one of his most gloriously over-the-top poems, Robert Service declared that the only explorers who survive the Yukon are those “steeled in the furnace heat.” Litigation toughens us up, even when we’d just as soon take a pass on the lesson, and the added steeliness can come in handy in life’s warfare.
Many of us who have litigated for a long time have personal stories to share on this front. We have anecdotes about how the discipline, focus, and intestinal strength that we acquired as litigators helped us deal with the loss of a loved one, a significant personal or career setback, or a cancer diagnosis. When life tossed us into the ring, we were ready to start swinging and go the rounds. That’s what our work trains us for. That’s what we do.
We may nevertheless struggle to find happiness in our work because litigation isn’t just about fighting; it’s about winning. A haunting vignette in the 1982 film The Verdict gets at the point quite brilliantly. In that scene, the senior and formidable trial attorney Ed Concannon, played by James Mason, is talking to Laura, a young woman lawyer in his employ, played by Charlotte Rampling. He says: “I’m going to tell you something that I learned when I was your age. I’d prepared a case and [the head of the firm] said to me, ‘How did you do?’ And I said, ‘I did my best.’ And he said, ‘You’re not paid to do your best. You’re paid to win.’”
Concannon continues by observing that winning pays for their offices, for the firm’s pro bono work, and for the type of law that Laura wants to practice. He cynically notes that winning “pays for the leisure we have to sit back and discuss philosophy as we’re doing tonight.” He takes a long draw on his whiskey and concludes: “We’re paid to win the case.”
Agreed: Winning matters. Indeed, over the years I’ve advised many of my students that if they don’t have enough competitive fire to care about winning, then they shouldn’t become litigators. But the relentless imperative to emerge victorious can limit our personal happiness and professional satisfaction for an exquisitely simple reason: Sometimes we lose. A lot of our work consists of bearing that in mind and trying anxiously to avoid it.
The Stoics have some good advice on this front as well. Perhaps most importantly, they remind us that we have control over some things but not others and that we need to focus on the former rather than the latter. This is useful instruction to litigators because we often lose cases on account of circumstances that we did not create and that we cannot change.
The “bad facts” that make us roll our eyes have a stubborn resilience exactly because they are, at the end of the day, facts. We may have some room to spin them, contextualize them, or soften their abrasive edges. But we’re stuck with them.
I recall many years ago when a senior colleague and I were struggling mightily to defend a flagrantly irresponsible client in a piece of high-stakes civil litigation. At one point during our strategy discussions, I started venting anxiously and volubly over the likelihood—by which I meant the inevitability—that we would lose. He smiled and calmly said to me: “Relax, Len. You didn’t make the bad decisions. And you can’t unmake them, either.”
The same holds true with adverse legal doctrine. Much of the time we can’t avoid it and can’t change it. And—as an ethical matter—we can’t fail to disclose it. ABA Model Rule 3.3(a)(2), which requires us to disclose adverse controlling legal authority, does not just leave us with a problem; it mandates that we tell the court and the other side just how bad our problem is. We can’t control these things, so wringing our hands and losing sleep over them, the Stoics advise, just wastes our time and energy.
But the Stoics went further: They maintained that the things we can’t control—and the difficulties we encounter as a result—are a source of potential happiness. Why? Because they give us a chance to show what we’re made of.
In this spirit, Marcus Aurelius wrote: “The ruling power within us takes a flexible approach to circumstances, always adapting itself easily to both practicality and the given event. [It turns] any obstacle into material for its own use.” Marcus Aurelius, supra, at 33. He added that in this sense, there is no misfortune, “but to bear it true to yourself is good fortune.” Id. at 48.
Nancy Sherman summarized the idea in these terms: “[W]e do best if we fight the good fight and try to recover an attitude that puts us back in charge. Our job is to find and refind our agency, however vulnerable and constrained it is.” Sherman, supra, at 10. This perspective entails an important move: It relocates us from the “object” of events to their “subject.”
This is an immensely powerful idea. Indeed, litigators can put it to use not only in advancing their own happiness but in helping those they represent. Many of our clients come to us weighed down with the sense that they’re being acted upon, that they’ve become the nail to someone else’s hammer, that they’ve lost their agency. One of our most important jobs is to help our clients retake the role of “subject” in their lives, to resume whatever control they can, to refind their agency—“however vulnerable and constrained” it may be.
Dr. George Sheehan, the philosopher of running and a latter-day Stoic of sorts, wrote that when we race, “we testify to who we are.” The same holds true when we litigators contend with bad facts and bad law. And the greater the challenge, the greater the potential show of strength, endurance, and imperturbable calm. The more powerful the pressure, the more impressive the demonstration of grace under it.
These adversities give us another opportunity as well: The chance to laugh about it later. Indeed, the sharing of war stories makes for one of the greatest pleasures of a litigator’s work. And—again—the worse, the better: the client who couldn’t keep a story straight—especially when under oath; the witness who dramatically changed testimony on the fly—multiple times; the irascible judge who threatened contempt, the sleepy juror who snored audibly, the horrible document that everyone swore didn’t exist but that materialized at trial. I have an anecdote about how, at the beginning of my career, I conducted the Worst Cross-Examination in the History of American Law, a yarn that over time has grown to the length of a Homeric epic.
I suspect that all litigators who have found themselves frantically dog-paddling in boiling water have turned to a colleague and said: “Somewhere down the line, this will make a good story.” I know I have. Again, the Stoics understood. Seneca wrote: “When a [person] is in the grip of difficulties [the person] should say ‘There may be pleasure in the memory of even these events one day.’” Seneca, Letters from a Stoic 135 (Robin Campbell trans., 1969). And it sometimes helps to recall that no trial lawyer has ever shared an entertaining reminiscence about how effortlessly things went during a case.
Our compulsion to win can also lead us to feel frustrated when a client decides to settle, depriving us of our chance to do battle. I recall sitting in the office of a mentor of mine, a wizened litigator who had served as a marine at Guadalcanal and who was no stranger to combat. A cocky young lawyer burst into his office, expressing outrage over a client’s choice to “back down” and resolve a risky dispute on the eve of trial. The senior lawyer growled: “Oh, shut up, tough guy. It doesn’t take any guts to gamble with somebody else’s money.” Again, in litigation, we encounter many things we can’t control, and one of those things is the client’s tolerance for risk.
Alas, the pressure to win leads some litigators to compromise their ethical standards—a source of professional unhappiness of the bitterest taste. Ed Concannon from The Verdict offers an excellent example. To “win the case,” he engages in numerous and outrageous violations of the rules of professional responsibility; indeed, in my Legal Ethics course, I have sometimes used the film as an issue-spotting exercise. Ironically, Concannon loses his lawsuit, all his misdeeds and machinations notwithstanding.
Concannon probably didn’t start his career in so corrupted a state. Most likely, he became morally bankrupt the same way people become financially bankrupt: in Hemingway’s memorable phrase, “gradually, then suddenly.” In any event, by the time we meet him in the film, he has lost sight of the fact that winning by cheating isn’t really winning at all.
At one point in The Verdict, the down-on-his-luck lawyer Frank Galvin (played by Paul Newman) is reminded by his friend Mickey (played by Jack Warden) that their opposing counsel is Ed Concannon. “He’s a good man,” Frank responds. “He’s a good man?” Mickey replies, astonished. “He’s the Prince of Fucking Darkness!”
Few of us deal with an opposing counsel as cheerfully diabolical as Concannon, but any litigator who sticks around in the profession long enough will get to know some of the domain’s lesser demons: the lawyer who won’t afford common courtesies; the lawyer who stays up late writing nasty emails; the lawyer who drowns you in discovery; the lawyer who objects to everything, all the time, just to make things difficult; the lawyer who has only an episodic and hostile relationship with the truth; the lawyer for whom civility is a strange and foreign land. As is true of all malignant spirits, their principal activity is temptation—specifically, tempting you to jump down from your perch and litigate at their level.
The Stoics had a lot to say about these challenges, too. They counseled us not to be surprised when someone acts in a manner consistent with that person’s character. As Marcus Aurelius observed: “It would be absurd to be surprised at a fig tree bearing figs.” Marcus Aurelius, supra, at 103. So we shouldn’t be astonished when a fallen soul hurls a little brimstone.
The Stoics further encouraged us not to let the misconduct of our adversaries get to us. “We have people who are our opponents in the game,” Marcus Aurelius noted, “and we should overlook much of what they do.” Id. at 71. Most importantly, though, the Stoics stressed that we must remain true to our own standards—that’s how we “win,” regardless of the outcome of the case. Marcus Aurelius put it succinctly: “The best revenge is not to be like your enemy.” Id. at 66.
The Stoics thought that this goal was achieved by having a clear sense of right and wrong and then adhering to it unflinchingly. Epictetus told the story of one Florus, who was debating whether he should attend the scandalously brutal performances sponsored by Nero in the Colosseum. When he raised the issue with Agrippinus, a Stoic, he was told: “Appear, by all means.” Surprised by the response, Florus asked: “But why do you not appear?” Agrippinus responded: “Because I do not even consider the question.” Epictetus, supra, at 119. The Stoics recognized that we avoid lots of bad decisions by simply refusing to entertain them as possibilities.
Of course, the players and circumstances we encounter in our work have the potential to make us grind our teeth. But the Stoics believed that emotions like anger, frustration, and exasperation are a matter of choice. Nancy Sherman wrote: “A central Stoic view . . . is that emotions are, by and large, ‘things within our control.’” Sherman, supra, at 2.
The Stoics saw such feelings as a sign of weakness and, more significantly, as a loss of perspective. On this theme, Marcus Aurelius wrote: “When you are high in indignation and perhaps losing patience, remember that human life is a mere fragment of time and shortly we are all in our graves.” Marcus Aurelius, supra, at 155. He was on to something: Nothing moves the mind up toward the big picture like pondering one’s own mortality and extinction.
Throughout his Meditations, Marcus Aurelius repeatedly encourages us to keep the brevity of our lives in our thoughts. Not just because it keeps us from obsessing over trivia. But because it assists us in figuring out how we want to spend the short time we have been given.
This is a critical insight for our profession because even litigators who relish the combat, who know how to distinguish the things they can control from the things they can’t, who stay morally grounded, and who don’t expend their energies on anger and other corrosive emotions, can still struggle with unhappiness in their work because there’s just too much of it. The culture of litigation—which treats chronic overwork as a badge of honor—exacerbates the problem. We’ve somehow persuaded ourselves that we’re only at the top of our game if we’re careening down the fast lane toward mental exhaustion, physical deterioration, and spiritual desolation.
The Stoics, who believed in strenuous effort as much as they believed in anything, saw this mind-set as the worst kind of folly. Their reasoning followed a simple formula. First, life is short. “Every life without exceptions is a short one,” wrote Seneca. Seneca, supra, at 130. Second, we accordingly need to make the best decisions we can—and we need to make them now. “You do not have a thousand years to live,” Marcus Aurelius warned. “Urgency is on you.” Marcus Aurelius, supra, at 38. Third, we should therefore live as if each day were “the last of our life.” Id. at 15. Marcus Aurelius declared: “Perfection of character is this: to live each day as if it were your last, without frenzy, without apathy, without pretense.” Id. at 97 And, finally, we need to acknowledge that this goal necessarily entails taking breaks to recover, relax, and reload. “The mind has to be given some time off,” Seneca declared. Seneca, supra, at 61. He added: “With me no day is ever wasted while away at ease.”
In pursuing these goals, the Stoics recognized the importance of mentors and role models. “Associate with people who are likely to improve you,” Seneca wrote. Id. at 43. In the same spirit, Marcus Aurelius began his Meditations with an extended reflection on the various things he learned from the people who influenced his life. This makes perfect sense: If we live on a battlefield, then our best chance at getting by resides in having worthy leaders directing us, worthy allies watching our flanks, and worthy companions sharing our foxholes.
I recall years ago reading a story about a major litigation firm founded by a charismatic trial lawyer. After he passed away, the leaders of the firm—all of whom he’d mentored—often found themselves looking to the head of the table where he used to sit when they confronted a tough issue. The Stoics would have approved. “We need,” Seneca wrote, “to set our affections on some good [person] and to keep [that person] constantly before our eyes, so that we may live as if [that person] were watching us and do everything as if [that person] saw what we were doing.” Id. at 56.
Like all philosophies, Stoicism has its imperfections. Martha Nussbaum has criticized its view of human emotion as oversimplified and incomplete. And it can be argued that Stoicism may encourage people who are struggling with serious mental health issues to think they’re supposed to ignore their feelings, “suck it up,” and keep going. A dissenter might object that Stoicism reinforces the tendency among litigators to put aside their psychological well-being, gird their loins, and continue punching.
In my view, however, this criticism presents a false dichotomy. We can make use of the central insights of the Stoics while recognizing that sometimes they will not provide all the help we need. There is no inconsistency in taking the Stoics seriously while simultaneously acknowledging that we’ve had a couple millennia to think about how best to preserve our mental health since they offered their advice.
The Stoics provide a useful, if not comprehensive, prescription for happiness in our work: Separate the things we can control from the things we can’t and focus on the former. Use adversity as an opportunity to develop and demonstrate our character. Don’t let our anger get the better of us. Stay on the high road even when our opponents tempt us toward the low one. Find good mentors and role models, hold on to what they teach us, and keep them present in our minds.
And, above all else, remember that life is short and every day could be our last. Maintaining this thought in our consciousness can bring tremendous clarity about how we want to live, how we want to do our work, how we want to make our mark, and how we want to be remembered. Marcus Aurelius summed it up this way: “Keep yourself simple, good, pure, serious, unpretentious, a friend of justice, god-fearing, kind, full of affection, strong for your proper work. Strive hard to remain the same [person] that philosophy wished to make you.” Marcus Aurelius, supra, at 73.
A litigator in search of a professional catechism could do a lot worse.
