Why the lawyer crosses the road | Marcel Strigberger

By Marcel Strigberger

Law360 Canada (May 26, 2023, 12:38 PM EDT) --
Marcel Strigberger
Are lawyers sometimes chicken? Shakespeare said, “Things done well and with a care are exempt of fear.” Shakespeare never practised law.

As lawyers our work can get stressful gripping us with fear. This must be a relevant issue as my thesaurus notes at least three synonyms for fear beginning just with the letter “A” alone; namely “anxious,” “alarmed” and “aghast.”     

Can an exploration of fear help us in our practices? Napoleon in describing military genius said something like, “The true genius is the one who can do the average thing when those around him grow hysterical with emotion and fright.”

And isn’t litigation warfare? Lawyers are the soldiers. And here in Canadian courts we even wear uniforms, donning black robes and white tabs. In England the barristers also sport those wigs. I can see how this bellicose attire can terrify the enemy even more. 

We often hear the comment, “a trial is not a tea party.” Then again some trials might indeed remind us of a tea party, namely Alice and Wonderland’s Mad Hatter’s tea party.

I was in criminal court once waiting to be called when the case before mine involved some firearms offence. The judge, having a reputation for being bizarre, took hold of the pistol in question, as the accused was testifying, and started playing with it, seemingly oblivious to the testimony. Defence counsel said to the judge, “Your Honour, I am not sure you are catching all of the evidence.”

The judge became livid and adjourned the case telling the lawyer he is considering charging him with contempt. His Honour reminded me not only of the Mad Hatter but also of the Queen of Hearts, who goes around shouting, “Off with their heads.” The madness of some judges can certainly rattle the lawyers. I’m sure that poor lawyer felt aghast.

We have other sources of fear. One is missing limitations, or procedural deadlines. A common one here is the two years one has to issue a claim post-accident. Some lawyers still miss limitation dates.

Or they almost miss them but raise their blood pressure catching it the last minute. As follows. Toronto’s time zone is Eastern Standard Time (EST). However, the northwestern Ontario city of Kenora is Central Standard Time; i.e., an hour earlier. A lawyer from Kenora once spoke at a seminar here in Toronto noting he sometimes gets frantic calls late in the afternoon from EST lawyers who realize their claims are in their 11th hour. They provide basic details of their case and the Kenora lawyer has that extra hour to get the claim done and issued at his local courthouse. Phew!

I actually took his business card, only to keep it pinned on the cork board in my office where I collected funny cartoons. It often served to remind me not to leave important matters to the last minute. I actually scribbled on it an image of a character with halo and wings. It added to the chuckles the cartoons gave me to ease my tensions and fears.

Which gets us to clients. Can they strike fear in the lawyer? Actually they can be a bigger source of fear than mad judges, procedural hurdles, or even nasty lawyer opponents. 

I would often worry they would blow the case. And my worries often materialized. For example in preparing for a personal injury examination for discovery, we would instruct the client when asked how severe the symptoms were on a scale of one to 10, to be conservative. At the office rehearsal, the client would say something like six to eight. Notwithstanding, at the examination, when asked, a number of clients would blurt out an ugly three-letter word, “Ten.” Sometimes they would top this answer up when asked if they ever felt better since the accident years ago, replying emphatically, “Never.”

Credibility shot. The opposing lawyer and I would both look at the client waiting for his nose to grow.

Given that fees on these files were on a contingency percentage basis, I would feel like I was personally writing out a cheque to the insurance company.  

Are there ways of dealing with these fears? Some literature suggests anxiety is often caused by catastrophizing a situation. If the event makes you feel like your case is sinking like the Titanic, just say to yourself something like, “Worst case scenario, it’s only money.” Does that help? It might somewhat. But I’m not so sure how well that works when it’s your own money. My mood would tank when once again I would see myself writing out that cheque to the insurance company, 

Then there are the classical bromides of solace. Words such as “Everything happens for a reason.” Sounds OK until you ask, “Why is it happening to me? Give me a good reason.” 

A good break in the form of a brisk walk can be helpful to break the fear pattern. I would often saunter out for a half hour or so after lunch, at times walking through a nearby cemetery. Aside from the exercise, I found it a relaxing switch to go from reading nasty threatening emails to eyeballing some tombstone inscriptions. When reading something like “Henry Appleby — born March 20, 1911 — died Oct.13, 2002” I found it cleared the head a bit. I realized that unlike the occupants of this venue, I still had choices. This is important as with a clear head you can perhaps do the average thing like Napoleon said. If in a pickle, you might just think about calling that lawyer in Kenora.

As lawyers we are engaged in battle with a colleague who also thinks he or she is right. Can we banish fear? And need we banish it totally? Perhaps we can take some comfort in the wise words of Mark Twain, who said, “Courage is resistance to fear, mastery of fear — not absence of fear.”

It’s OK to sometimes feel chicken.

Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. His just launched book Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging is now available on Amazon, (e-book) and paper version. Visit www.marcelshumour.com. Follow him @MarcelsHumour.

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