Toughening Up

I sometimes wonder whether I ought to toughen up a little bit and make my reactions to things that are said or happen in my personal life resemble my reactions to things that are said or happen in my professional life.

The professional part is so much easier for me. I don't think too many people would disagree that an insult, however obnoxious, can be easily shaken off, particularly when your job largely involves working with lawyers who are expected to zealously advocate for a client. As most trial lawyers would probably tell you, they have been insulted, threatened (not with violence for the most part), belittled, laughed at and otherwise treated uncivilly by opponents, judges, arbitrators, employers and clients. Most learn very early that it is an occupational hazard and is ordinarily not necessarily personal. My favorite insult (if one can have a favorite insult) was lobbed at a friend of mine during a hearing when her opponent suggested that she consult a psychiatrist to get past what he considered to be some character defect on her part. In some ways, trial practice has become a sport where substance often takes a back seat to style and where an advocate cannot necessarily depend on a judge or arbitrator to admonish a particularly obnoxious lawyer who behaves as if the case is about him and the other lawyer - not the clients. When I was an advocate, I was repeatedly told that personalizing a case and making it about the lawyers was the worst thing you could do for your client and among the worst things you could do for your professional reputation.

After a couple of decades of advocacy, mostly as an attorney and mostly before neutral arbitrators, I have not seen a great deal of evidence that personalizing cases or hurling invectives at opponents makes any real difference in the reputation of the lawyers who engage in that kind of behavior. In fact, some lawyers are bold enough to go after the judge or the arbitrator (my very unscientific survey suggests to me that it happens to arbitrators much more than it does to judges). I admit to having made some snide remarks to my opponents, mostly when I was provoked and mostly when I thought my opponent was late to hearings or in some other way was wasting everyone's time and dragging out the process for no reason other than to bill the client for more time than was necessary to try the case. Ideology (or presumed differences in ideology) is sometimes to blame. Being overworked can contribute to it as well.

I think the first thing I learned was that the louder and more personal my opponents sometimes were, the more obvious it was to me that they did not have much of a case and knew it. There is the old adage that when the law is on your side, pound on the law; when the facts are on your side, pound on the facts; if neither the law nor the facts were on your side, pound on the table. The last bit of strategy happens more frequently than we like to admit. Early in my career I recall telling my boss that I wasn't sure I had the temperment to try cases because I have no natural inclination to yell or engage in name-calling. He told me that I did not need to change my personality to do my job and if I tried, no one would believe it was authentic, anyway. I don't know whether that was the best advice I ever received but it's pretty close. The more my opponents yelled and "pounded on the table", the quieter my own voice became. Whether it is universally true or not, the arbitrators before whom I appeared would actually lean in to listen to my arguments and attempt to tune out the yelling. I didn't always win but I am certain I was heard. The many times I was personally attacked, I said absolutely nothing and just smiled (or, sometimes, let's face it, smirked) back at him or her. Ironically, that usually infuriated my opponents more than if I had "given as good as I got." A former colleague of mine was defending a case before an arbitrator and while her opponent wasn't listening, she told the arbitrator in the presence of all parties that she acknowledged that her client was wrong from a contractual perspective and that she would grant the relief sought by her opponent without the necessity of an arbitrator's decision. Her opponent then continued the earlier argument until the arbitrator told him that my colleague had rendered the case moot because she was willing to grant the remedy sought. Rule? Listening is a good skill.

When I stopped advocating cases and became an independent arbitrator - something I had long wanted to do - I had at least a dozen examples to follow given the number of arbitrators before whom I appeared over the years. Arbitrators have their own personal styles of conducting hearings, come from different backgrounds and often disagree amongst themselves about the 'right way' to behave as a neutral. As soon as I was present at a hearing as an arbitrator, a few things became very clear to me. I cannot copy anyone I had appeared before whether I want to or not. I am not predisposed to asking lots of questions of witnesses and instead rely on the advocates to put on their cases the way they choose, rule on objections and limit my questions to clearing up any confusion I might have had relating to their testimony. I may change as I mature but if want to be happy with my work, I have to remain true to myself, subject of course, to contractual and legal constraints to which every arbitrator must adhere. There is a lot of room for many different approaches, one of the best parts of choosing this as a profession.

As I indicated earlier, the separation of one's personal life from one's professional life presents its own challenges. Busy arbitrators are used to a certain amount of deference and have much more control over events than they may have at home. Spouses, families and friends can say very personal, sometimes hurtful things to each other and even if I object, I don't get to write a final and binding decision at the end telling them that I am right. Life doesn't work that way. It shouldn't. I am lucky that I am not subjected to very much criticism when I am at home. When I am, it is sometimes more than a little unnerving but is often understandable and is usually out of love. I have discovered that I am not a particularly good advocate for myself and rather than argue, my typical reaction is to remain silent or apologize. I'm not sure if I need to work on that but I get hurt like everyone else, especially when I feel powerless to defend myself. I suppose the answer to my own question - whether to toughen up a bit more or not - depends on being less sensitive or even ignoring what I believe to be unfair criticism and to develop a better sense of humor. I think it also has to include a deeper understanding of the people I love, especially their own frustrations with me or something else. That's the hardest part which means it's probably the most important part.