Policing The Legal Profession Like a Urinal Cake

Ed. note: This is a guest post by Jeff Curl

The premise is basic: Lawyers suffer high rates of depression and substance abuse, and we as a profession should address this. Pretty vanilla with a side of Captain Obvious. Yet it is a persistent problem that will not go away. (See e.g., a paper by the South Carolina Bar HELP Task Force that collects several studies regarding depression, suicide and substance abuse in our profession)

Lawyers, bar associations and many related to the practice of law seek ways to address these problems. My wife and law partner, Jeena Cho, is a huge proponent of mindfulness after experiencing its benefits. As a lawyer herself, it seems like a natural step for her to introduce it to the lawyer community. Mindfulness continues to gain momentum, making the cover of magazines like Time recently, and just the other day it earned a frontpage spot on the Wall Street Journal.

Some lawyers react badly to the suggestion that mindfulness may help with the misery many experience with practicing law. When my wife first told me about mindfulness some years ago, I initially dismissed it as some woo woo crystal-rubbing thing. I attended a mindfulness class in large part to humor her. Part of me was curious on some level about meditation, but I assumed this class was the one room where all the loony folks from Stanford gathered each week to light some sage and hold a seance. I was wrong and loved it.

A few observations about some of the doubts expressed and the way they are stated:

  • There is no inverse relationship between soft skills and hard skills

Some lawyers assume that developing a “soft skill” like meditating for twenty minutes a day somehow means your deposition, oral argument, briefing and other client advocacy hard skills must suffer. Why? When I swim laps I am maintaining my body. Meditation is essentially swimming mental paths to train the brain for optimal performance. Of course, you still need real-life practice and repetitions in law to improve. My client and deposition skills are better than they were several years ago, and will continue to improve with more repetitions and critiques along the way.

Soft skills like mindfulness only enhance my practice and service to my clients. It does not give me superhuman powers, nor does give me an immunity card from making mistakes. It’s simply a calming and focusing technique – essential skills for lawyers.

Some lawyers are dismissive because they view mindfulness as an abstract, trendy piece of fluff. I actually sympathize with that. The solution: Don’t meditate, and don’t read about it if you have determined it’s a waste or just not for you. There are numerous ways you can engage in some form of self-care (or not). And mindfulness may not even work for you. Or it may work, but maybe it’s not worth the time and effort in comparison to other pursuits. Great, have a party. Move on.

  • Preexisting generational narrative

Just remember, there’s a right way and a wrong way to do everything and the wrong way is to keep trying to make everybody else do it the right way. Colonel Potter, (M*A*S*H, Season 7, Episode 17, original air date January 8, 1979).

Is there any generation ever that did not view the next generations as weaker, less capable and all about “me?” Even as a 3L in law school, those of us on the Honors Moot Court Board thought the 2Ls at tryouts were wimps. I’m sure the previous board felt the same way about us as 2Ls. I’m not exactly sure why this perception persists, but the generational narrative is a perennial weed that returns without fail.

I’ve had numerous conversations with older attorneys that are baby boomers and older (I am a Gen Xer) about the state of practicing law. Not all, but many complain vociferously that younger attorneys are lazy, incapable, coddled and not tough enough. Maybe I too will say this in twenty years myself after I am consumed by the dark side of the force.

I can’t count how many times I’ve been told how back in the day law school was tough, or when the dean told everyone to look to the right then the left because one of you would not graduate. Or my favorite is a recently shared story of the partner that threw staplers and other objects at the young attorney as if this was a growing experience for the young attorney on how to “get it right.” News flash, you can teach lawyers to be outstanding advocates without fear mongering. If that was your experience, sorry to hear it. But the way you were taught is not the be-all end-all.

Tough love certainly has it benefits. But I also see many of the top-flight attorneys that I admire (and some mentored me) taking younger attorneys under their wing with great care, without the intimidation and toxic mentoring that I sometimes witness.

In my wife’s podcast with Dan Lear, they talked about the Briggs Meyer personality test. Mr. Lear loves the test. I’m a little more neutral about it. But one of the things Mr. Lear said that resonated with me was when taking the test, it not only revealed to him his personality type, but opened his eyes to the many other types; it helped him to see that people genuinely encounter the world differently. I know, people having different perspectives is hardly earth shattering. But we are naturally myopic. Somebody raised you, in a certain country, state and city, speaking certain languages, educated you, teaching you certain values, and on and on. As we grow, we create our social networks and tribes in life that admittedly also give us blinders as well.

The same thing happens in our legal training. From the type of law school, professors, internships, mentors and practice areas we funnel through, we are both conditioned and self-selecting about who we are going to be as lawyers. Those that had a brutal introduction to law school and terse mentors just cannot imagine that someone who was not beaten with a stick is battle ready and can deliver worthy client advocacy.

Colonel Potter’s statement about the “right way” is a criticism about this type of narcissism. In the episode, Hawkeye is upset by a visiting foreign female surgeon that introduces a new technique in an otherwise ordinary surgery. Hawkeye treated a good thing like an intrusion, and Colonel Potter called him out.

Some in our profession still think that being beaten with the stick by the dean, professors, mentors and bosses is a requirement to be a good lawyer, and that the new generations of lawyers’ rejection of this is the “wrong way.” This reminds of the holdout Japanese soldier hiding on an island fighting a war that was over decades earlier.

  • Pot committed to misery

In poker there is the term “pot committed.” It means you’re so heavily invested into a hand that when someone raises you or makes a bet, folding your hand becomes a mathematically incorrect play. You’re just too vested at that point and must play despite that sinking feeling in your stomach that the odds are stacked against you. When the firm offers you the junior partnership after seven arduous years, and then equity, and on and on, it’s often hard to walk away even if you hate it to your core.

That is the attitude of many practitioners, and unfortunately, several friends and colleagues. They made a lot of sacrifices to go to law school. Now they are working 6-7 days a week, burning through marriages like disposable diapers, nannies raising the kids, and buying more cars and homes to keep up with the Joneses (with no time to enjoy them of course). They are trapped, emotionally, mentally and financially.

To be fair, a few practitioners I know find the stress and pressures fulfilling. But most do not. Some of my colleagues and friends that overcommitted themselves to the misery acknowledge how much they hate it. Some say it’s fine, but anyone with a scintilla of objectivity can tell it’s what they say just to get themselves through the day. And I do not begrudge them for doing this.

The most insidious of this group embrace and defend the misery as a superior and more noble form of client advocacy and practice. In colloquial terms, they need to justify being an asshole lawyer. From the inside, they view themselves as hardened warriors thinning the legal herd of weak members. From the outside – and many from the inside – you look bitter and sad.

As social media and the interwebs shine a light on the real world experience of practicing law, it’s not that lawyers entering the profession aren’t tough enough or committed.

It’s that they don’t want to end up like some of our colleagues that exist in a calcified state of anger and hostility.

  • Policing the profession like a urinal cake

Yes, urinal cakes. You know, those dumb things that some ballparks, restaurants and other businesses place at the bottom of the men’s urinal. For those that do not know, each time someone relieves themselves upon the little puck thingy, it is supposed to deodorize and clean the urinal simultaneously. That is great in theory, except anyone with functioning nostrils know they can smell worse than the offending fluid, and often just stain the porcelain. Fun fact: for the longest time, the “cakes” were comprised in part of benzenes and other chemicals that are carcinogenic.

The humble little urinal cake fails to deliver on its intended purpose, and, is in fact superfluous. Hyper critical know-it-alls that get their ya-yas by dedicating inordinate amounts of time attacking other attorneys are the urinal cakes of our profession. Your stated intention of weeding out the baddies in our profession is not well-served. It’s a shame that the knowledge and wisdom that many of these attorneys possess is overshadowed by the narcissistic need to craft another clever swipe at the target of the day.

The proudly self-styled curmudgeon lawyers that spend their time mob-criticizing other lawyers online need to own it for what it is. You are not helping the profession, nor is that the intention. You’re not even a modern urinal cake; you’re the old cakes that inject carcinogens into the profession. You are engaged in dopamine-induced social media high fives with your self-congratulatory cliques when you attack. Embrace your inner true urinal cake nature and stop pretending to advance the profession.

Embrace it like California’s medical marijuana law. Perhaps 10% of the people who get a marijuana prescription use it for medicinal purposes (yes, I am just making a guess based on anecdotal evidence). Most are getting their weed to get high for the sake of getting high. Medicinal marijuana is merely a pretext for doing what people really want – a little mind alteration. California is likely poised to legalize marijuana in 2016 and drop the facade of “medicinal only.” How about you do the same? Just admit that the snarky tweets and bitchy blogs release a refreshing little squirt of dopamine that delivers your preferred method of mind alteration.

So how about you come out of the closet and just say it? Spending your days attacking other attorneys as a self-deputized sheriff guarding your pretend lawyer insane asylum is your form of mental masturbation. I like card games, you like to wordsmith (yeah, I know I just made a noun into verb) other lawyers into the ground; we each have our addictions. Let’s agree to drop the pretext, shall we?

Wear your emperor’s clothes proudly.