ALL X’S ARE Ys, but NO ~Y’S ARE Xs?


Michael Sean Quinn*

            I
recently ran across an article entitled “A Good and Happy Lawyer.” I found it
in a recent issue of something called PRACTICAL APPLICATION; apparently it is
an on-line lawyer mag of some sort.  The
author is identified as the chair of the “Attorney Liability Practice Group” of
a law firm somewhere.

According to the
article that section not only represents lawyers in professional liability
matters.  The article also says that at
least one member of  this section  “provides advice to attorneys on risk
management and ethical issues.

          I have now developed a Named Category
for pieces like this: “Blatant Ballistic Bullshit.” (When the missile carrying
this cargo hits a surface, its innards case slop in all directions.)

This cargo starts
applying with the main thesis of the article: “An Unhappy Lawyer will never be a good lawyer.” (The bold type is
in the article, and that part is all in caps.)

          “Never”? Really? Five years after
recovering from a cocaine addiction, daily AA meetings, and many successful
hours of positive psychological therapy? What if someone one were to say that
that no lawyer who ever believed an unclear and vague universal proposition without
precision or empirical support could ever be a good lawyer. Frankly, I find the
second proposition more probable—and more plausible–than the first, but I and
most rational people eschew believing either of them for more than a few
seconds—“Temptation Seconds.” Many mistakes do not cause lifetime states of
affairs like inferiority.

Let’s
restrict the author’s claims to this “No lawyer who is unhappy can be a good
lawyer during the period of  his/her
unhappiness.” Of course, this is false too, since someone can be going through
the breakup of a love affair and therefore be unhappy for some days (or weeks)
and try to lose the unhappiness by concentrating on work.

What
about the following problem. Categories like unhappy person and good lawyer are very broad, rather vague
concepts, and each subject to many degrees. 
Consider the idea of being
unhappy.
 Obviously, some people are
less unhappy than others; there are mild cases of unhappiness and cases of true
and intense depression. (It fair to say, I think, that very depressed people
are unhappy while they are really depressed, though the opposite may not always
be true. Conceptually, I am willing to entertain the idea that people who are
depressed on even numbered days can also regularly be unhappy on odd numbered
days, other things being equal.)

Also,
the phrase “unhappy person” is an ambiguous phrase. Two friends of mine count
themselves as unhappy persons. One tries to overcome this problem with Prozac.
He tells me that it seems to help, but he still describes himself as an unhappy
person. We have gone of picnics together and laughed muchly together, but he
still classifies himself as an unhappy person with short intervals of some
happiness.  Is he wrong?

The
other says that Prozac works great and she is no longer depressed, although she
is intensely angry from time to time at her philandering husband, whom she find
somewhat sexually unsatisfactory, in any case. Planning a hypothetical divorce
sometimes, imaging and affair, and fantasizing a murder while waiting in the
car pool line, she tells me, make her very happy, as well as entertained.

 Her felonious imaginings and being a member of
the audience for her own purely mental dramas, as—but pretty much only as–they
happen, distract her from the law and legal contemplation, something she
genuinely and dearly loves. At the same time she acknowledges that this state
of affairs can sometimes inflict upon her short episodes of being less happy
than she otherwise usually is, during which time she fights off being down cast
by goes out for lunch.

Here
are some of the characteristics the article claims the unhappy lawyer will
have, though I will restrict my prose to the use of masculine pronouns. 

1.   
 “never deliver to the client the level
of service deserved”;

2.   
never. .
.fulfill the ethical obligations of competence, diligence and prompt
communication required by the” ABA Model Rules;

3.   
 if unhappy “because of dissatisfaction with .
. .career choices[,] “will cut corners to get the job done,”

4.   
will not
respect the overarching principles of confidentiality”

5.   
 will feel unjustified, dangerous “freedom
from conflicting interests and”

6.   
will fail in
mentoring the attorneys whom [he] supervises.”

There
are so many false propositions built into in this list—in fact more than one in
each of the six points I extracted–that it is depressing to read; principally
because of the false universal assertions involved, it makes me unhappy to read
it.  The fact that the author’s principal
source appears to be CNN doesn’t help either.

(I
come a little way away ashamed of myself, for how judgmental I have ended up
when I ask myself, “How could someone who writes such balderdash possible be a
good lawyer.” Bullshit is never adequate advocacy, I erroneously assert to
myself, and then take it back, striking the “never” and substituting an “often
not.”  (This stimulates a pointless inner
conflict. Would “usually not” be better”? What about “often not”? And so
forth.)

The author does
provide a list of clichés for achieving and/or maintaining happiness. Maybe
this will make up for failure so far. Alas, they suffer from the same
universalistic rigid-mindedness that 1-6 do.

I’m going to list
almost all of them here. As you read them, ask yourself, what problems are
there here:

Get the big picture.  What does this
mean? What is a “big picture?” If I am a young associate and I am taking the
deposition of a weak witness, should I be focusing on the fact that the case
upon which I am working– a case which is being run by a senior partner–is
going to hell in a hand basket, and he knows it but hasn’t told the client? Or
what if he doesn’t know it because he is what is now popularly called and
“idiot”? It seems to me that I need to focus on taking the deposition. In other
words, on that day, I need to focus on the little picture.

Wipe away a tendency to pessimism.  I have a lot of
sympathy for this principle. In fact, in a loose sense, I am tempted to think
it true, if only I could really understand the phrase “wipe away.”  Optimistic people tend to be happier on the
average than those who are pessimistic.  The
experimental and empirical research conducted by professors of positive
psychology are said to tell us this.

At
the same time, often a good dose of pessimism can be very helpful in the
practice of law.  If there is an absolute
proposition about the practice of law which tempts me it is this one: All
“moves” in the world of applied law—as in chess—involve risk, and the negative
must dwelt upon, although not by itself. Correct risk assessment entails
partial-pessimism, so it should not be wiped out.  In opposition to one of the truly great
popular songs: “Don’t accentuate only the positive.” (Of course, this proposition
implies that some worry can make one a better lawyer. But doesn’t worry tend to
generate unhappiness? ) 

Now for a real
problem. Being cynical is sometimes a blessing and a necessity of rationality.
Reason and truth sometimes require it.  A
lawyer serving a client sometimes needs to have this state of mind sometimes
the lawyer may need to transmit it to the client (sort of), or at least
deliberate with the client about its appropriateness. Generalized,
universalistic, dogmatic cynicism is probably not a good idea. 

If
I had to try and identify one of the key causes of lawyerly unhappiness it
would be this.  Intense and lasting
cynicism regarding human beings probably causes serious unhappiness, even if
you love you innocent dog.   If you see
the world of man as a total shit house, it is hard to love you neighbor.

 Nevertheless, having a relatively generalized “weak
or selective cynicism” pass by or though one’s mind is sometimes a need for a
good lawyer.  Mindfulness sometimes
virtually entails a cynical outlook. 
Think of a crazy, vicious family struggling over who gets what out of a
large estate where the will was badly done, perhaps by a member of the family.
Sometimes one must even be cynical about one’s own clients.

And
about one’s self.  In fact, some degree
of easily findable and touchable self-cynicism is absolutely required for the
genuinely moral individual and therefore especially so for a good lawyer.

Concentrate on what needs it: work,
family, and friends.
 This sounds right, but how much to which and
when? What about pending suits versus a kid’s soccer game? A championship game?
All members of the family at all times? What counts as the family? What about
one’s own health, often a necessary condition for good performance of the
others? What about prayer or meditation? What about communing with beauty,
whether in nature on in connection with, say, a Turner painting? 

Avoid becoming stagnant.  Sounds
right, I guess. It is not good for one to be trapped in a kind of boredom.  But sometimes boredom is inevitable; consider
finding, reading, reviewing, and thinking about thousands of documents, for
example, but sometimes this has to be done. 
Sometimes some stagnation has to be managed and tolerated. But for how
long?  Is avoidance for that which has
grown stagnant or that which is a stagnation stimulant; this is an important
difference.  How should we think about
avoiding the stagnant versus discarding, reducing, or revising it, after it has
already arrived? Or is it sometimes one and sometimes another? Does stagnation
always generate unhappiness, depression, and/or poor lawyering?  I wonder if a distinction should be drawn
between deep and surface stagnation. Topical versus general?  Professional versus personal? And how do they
overlap?

I
wonder if the following is true, and I admit I am inclined to think so: Do all
instances of recognized stagnation cause frustration? And then, Do all
instances of frustration diminish happiness? Again I am inclined to think so?
Then again, I don’t trust dogmatic universals.

Are
there different types of stagnation, I asked? I myself learned how to exercise
the lawyerly doze periodically amongst piles of documents in the back of a
dusty warehouse. I hated the work, but I did it well, in relatively short
doses, anyway, and it too passed, though I thought, “Not soon enough.” Friends
of mine learned how to exercise it in front of computer screens.  Their risk of discovery capture was greater
than mine, however, since I was in a location where nobody much came. For
lawyerly discussions and mentorship, I left it; more senior lawyers did not
come to me.

 At the same time, I feel the necessity of
confessing a long lasting area of stagnation.  I tried to become and be an excellent proof
reader for many years. I have become stagnant about that exercise of will; my
intense efforts to do it have petered out. This stagnation is really a problem.
Excellent proof reading is one quality of the good lawyer. I simply can’t get
there. Fortunately, this shameful inability, worsened by the stagnation of my
will with regard to it, does not make me a bad lawyer either across the board
(horizontally, as it were) or down to the depth (vertically, as it were).
Having said all this, maybe my failure here is not really a case of
“stagnation.” If so, then my semantic confusion surges again.

Engage your colleagues in positive
relationships. 
What kind? My list would include forgiveness,
optimism, love, altruism, fairness, discussing Aquinas or Wittgenstein, sharing,
common experience (e.g., golf, hunting, readings of scripture, and so forth
varying with the people and the context), intellectual and emotional
stimulation and support.  This article
does not include anything like this.  It
suggests that to obtain and maintain happiness a lawyer would be well advised
to join bar groups and lawyer networks. Really?

Give back to the profession.  The author’s
description of this aphorism is “Do pro bono work.” But there may be
perverse problems with even such a widely professed “gem” as this one. Consider
the lawyer who cannot stand being around the poverty from which he escaped. As
irrational, uncharitable, and narrow a person as he is, the misery that serving
the poor will inflict depression upon him, and he won’t be any good at it.  Wouldn’t be much better for this person to
tithe from is income and hand it over to a reputable charity?  But he is surely giving “away,” not “back.”

Enough
is enough.  Dogmatic, universalistic
clichés are seldom actually true. Truth in human affairs is almost always a
mixed bag and shot through with not just exceptions but subtlety. Here is a
dogmatic universal which has tempted me sometimes, Try to love what you do, and it
you can’t bring yourself to enhancements of that state, think about give it up.
 However, don’t bail out; don’t just walk out;
think the problems through; be prudent; blend pessimism with possibility;
compare and contract risk with reward; focus on who and what you love; tread
carefully and with charity in  your
heart.

None of the
following propositions is true—or to say the same thing, more or less, all of
the following propositions are false, to the extent that they can even be
understood:

·      
No unhappy
lawyers are good lawyers.

·      
All unhappy
lawyers are bad lawyers.

·      
All good lawyers
are happy.

·      
No good lawyers
are unhappy.

·      
All bad lawyers
are unhappy.

In
might be a good way to end this essay is to point out that the idea of a good
lawyer
is itself ambiguous. Does it mean that such a lawyer mostly (or more) complies
with (most or all of) the laws governing lawyers? Does it mean that such a lawyer is a
sound, well-performing lawyer who is also good? 
Or does it just mean that such a lawyer is a sound, well-performing lawyer? These
are not common questions these days, but maybe they should be, once they are straightened out some, at least a bit
more.






*Michael Sean Quinn, Ph.D., J.D.

The Law Firm of Michael Sean Quinn et

Quinn and Quinn

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                                             Austin, Texas 78703

                                                 (512) 296-2594

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                                E-mail:  mquinn@msquinnlaw.com

Originally posted on 08/29/2015 @ 8:55 pm

Michael Sean Quinn, PhD, JD, CPCU, Etc

Michael Sean Quinn, PhD, JD, CPCU, Etc. (530)

One of Texas's leading insurance scholars, Michael Sean Quinn is a past chair of the Insurance Section of the State Bar of Texas and has a broad legal practice.

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