Passing the bar

The height of stress one suffers from lawyering involves a three-fold process. The simple task of laying down that line causes me to question the statement, the number of processes and my ability to successfully undertake this explanation. However, I suppose that it is the nature of writing that allows me to continue, despite the possibility of errors in the action.

1. Mastery of the law and facts. The first aspect of the practice of law which causes practitioners stress requires a knowledge of the laws which might apply in the case as they are applied to the facts of the case. I understand that though he was extremely untutored in contrast with a lot of other lawyers of his day, Abraham Lincoln was considered a good lawyer in his time, which contrasts with the rustic portrait we acquired as school children. Our simplified portrait of Lincoln consists of log cabins, rail-splitting, candles and writing out his lessons on a coal scuttle with a piece of coal. The picture of Lincoln does not include matriculation at a university or college. As a matter of fact, his only schooling involved some time spent in a one room school house on the flatlands of Indiana.

However, Lincoln was considered a good enough lawyer that he found his way into the listes with some of the best educated lawyers of his day. In studying Lincoln as a lawyer, I have found that his foremost gift as a lawyer was the ability to read the facts of the case. In a book I read as a law student, I read about a case in which Lincoln appeared as counsel for a railroad in Indiana. A train track had been laid across a railroad bridge over a river somewhere in Indiana. A boatsman attempted to navigate the currents passing under the railroad bridge. Apparently, the boatsman lost control of the boat and crashed against the bridge. The boatsman sued the railroad for damages and Lincoln found himself defending the railroad in the suit.

Prior to trial, Lincoln apparently travelled to the scene of the accident and studied the river and its currents as they travelled under the bridge. He even had a young boy sail paper boats downriver into the currents surrounding the bridge. After several hours spent watching the paper boats floating under the bridge, Lincoln knew enough about the facts of the currents and the affect of the bridge on those currents that he was able to argue to the judge and jury about the facts of the case in such a way that he exemplified a far better handle on the facts than opposing counsel and their experts. His ability to determine the factual basis for the lawsuit overcame his lack of formal education in the law.

In any given suit, whether civil or criminal, any number of statutory and common laws may apply to the facts of the case. One requirement of being a lawyer requires one to acknowledge which of the multiplicity of the laws do apply to the case and bear on the issues at hand. In law school, this talent in 'seeing' the issues and applying the laws which apply to those issues is called "thinking like a lawyer." The bottom line concept involves being creative in acknowledging the issues and the laws and being inductive in separating what does or doesn't apply in the case.

The practice of law is one of the more practical of pursuits. Ultimately, the end result is the most important part of the vocation. Unlike in football, it is not how one plays the game but who wins which is paramount. So much goes into the mix of representing a client in a law case. So much of this endeavor is outside the control of the lawyer. However, quite often, the result of the case, the ruling, or verdict is what everybody sees in the end. Since there are so many factors which can affect the end result, the lawyer is required to confidently posit the law and facts and somehow blame the other side when things don't go the way of his client. In this way, the practice of the law is more of an art than a science. The beauty of the art is that one might still win even if the law and the facts are not necessarily on one's side.

2. Adversarial Struggle. The second factor which gives us pause in the practice of the law involves the fact that most law suits involve a struggle between two or more contending sides, both of which are represented by lawyers who are attempting to posit a case to a judge or jury. In this regard, the practice of law is more of a game or sport. In some respects, the practice might even take on some of the pageantry of the knights in the listes. Of course, some might argue that the practice of law is less like the battles of those romantic knights of old, and more like a shouting match in which the team with the loudest shouters is the victor. In many cases, the trial of a law case becomes a trial by ordeal as the sides battle each other, expending time and money in order to win the case.

However, there are not many other adult pursuits which involve a situation in which in order to earn a living one must attempt to establish one's trade while the competitors attempt to undo what you do. I suppose it is arguable that all trades are like this, but few are so direct. Perhaps the vocation of a military man or an athlete are a few trades which are more directly adversarial than a lawyer.

Of course, I have heard it said that on the frontier, the first lawyer starved until the second lawyer arrived in town. There is a certain amount of truth in this, and a local bar which is supportive and mentoring of its members is a wonderful example of one of those odd instances in lawyering which tends to drive most non-lawyers crazy. What could be more frustrating for a client to be embroiled in a law suit with another citizen, battling tooth and nail, only to find his or her lawyer outside the courthouse, socializing heartily with the lawyer who represents the other side. To the good lawyer, there is nothing more heartwarming than the relationship with his or her brothers and sisters in the bar. To the client this is imperceivable.

Once we cross the bar and enter the arena of the courtroom, however, we are called on to battle like true combatants, and take advantage of every fact, law and slip of the tongue on the part of the other side, its advocates and witnesses. There is always a struggle to represent one's clients with vigor and enthusiasm, even despite the fact that the other lawyer is your brother or sister. It creates quite a emotional problem for the lawyer and just a little more stress when preparing for court.

3. Representing one's clients. The third problem presented by acting as an advocate for another involves the fact that we do, indeed, act for others, who will suffer at our failure or profit by our success. I heard a story one time about a lawyer in North Georgia who had ably represented his client in a drug case in the local Superior Court, only to listen as the jury found him guilty in the case. After the jury came back into the courtroom to find his client guilty, the lawyer listened as the judge sentenced his client to several years in the penal system of Georgia. It being several minutes before the noon hour, the Judge excused the jury and the others congregated in the courtroom for an hour for the noontime meal.

As the courtroom emptied, the client turned to his lawyer and said, "What do we do now?"

The lawyer patted his client on the back gently and said, "Well, I'm going to lunch; you're going to jail."

Hopefully, we are not all so callous as to have this attitude when our best efforts fail to find success for our clients. However, this points to a stressful part of a lawyer's job: our clients hang on our success or failure in and out of the courtroom. When we fail, they fail. When we succeed, they succeed. As Hamlet might have said in this regard, "this problem should give us pause, when we consider the result of our efforts as they pertain to our clients."

This is the problem with being a lawyer, particularly a lawyer with some sense of responsibility and empathy. When the client enters the office, he has a problem which he wants rectified. Quite often, the possibility of loss, punishment or judgment hangs over his head like a dark cloud. He comes to you to deliver him from these dangers. At the same time, you hopefully recognize the possibility of success or failure in the air and can gauge that for your client before you undertake his representation. A lot of times the client might even want an estimation of the odds and require you to undertake the vocation of a bookmaker.

However, the ultimate truth here lies in the fact that the problem is not yours, but your clients. No matter how involved you become in this problem, you ultimately will not share directly in the pain or sorrow of the loss. The tricky part, of course, is that you will ultimately benefit from his problem, whether you are successful or not.

When you enter the courtroom, you are his expert, his advocate and his counsel. You have a favored place in the courtroom which allows you to approach the judge as if a relative or friend among strangers. You are given the benefit of the doubt concerning what leaves your mouth and rolls off your tongue. Usually, when you speak, everyone must listen. However, again, when you leave the courtroom, it is he that pays. Hopefully, this does not offer you solace, but creates some creative anxiety which will push you when you cross the bar or when you prepare in the days before.

So these are the matters which cause anxiety for the barrister. As we know some anxiety is good, because it pushes us forward to do our best when confronted with difficulty. However, it also scars our hearts and pushes us toward our ultimate demise, the dark vale which awaits us all.