Welcome to Smokey Joe’s, Where Everyone Sings the Blues[1]
You damn right, I’ve got the blues
From my head down to my shoes
You damn right, I’ve got the blues
From my head down to my shoes
I can’t win, ’cause I don’t have a thing to lose
~Buddy Guy
In the only decent watering hole in Cate’s Olympic Village 2024, there is a place to go when you are experiencing the Agony of Defeat. Welcome to Smokey Joe’s.
The Agony of Defeat can mean a lot of things, even for Olympic quality attorneys. Your case has gone south because of bad facts, a bad judge, or bad lawyering. Your law practice or legal department has gone south because somehow you’ve lost control of managing it well. Your personal life has gone south because you’ve forgotten how to balance work and family. It’s time to sing the blues.
In a recreation of a classic Chicago blues club, this Session at the 2024 ALFAI ICS on which this brief article is based will cover real-life “blues beat-downs,” and offer practical advice and strategies for how to dig yourself—with the help of friends and colleagues—out of the hole you’re in. Our presentation will include panelists who are General Counsel to major American companies who have dealt with every “no win” situation imaginable, and it will include attorneys who regularly litigate in the area of professional liability and who help professionals who are dealing with what are likely some of the worst times in their professional careers.
In our Session, we will cover real cases that deal with issues like unexpected massive damages verdicts, Covid’s impact on business, difficult management situations for in-house counsel, compliance issues, emotional and difficult family situations impacting work, and work-life balance issues.
The Blues hit every one of us. Let’s share some ideas on how to start singing a happy tune.
The Litigator Blues
“I’m trying to get people to see that we are our brother’s keeper.
Red, white, black, brown or yellow, rich or poor, we all have the blues.”
~ B.B. King
While the focus of our Session will be on digging yourself out of bad blues “pits of despair,” attorneys should be reminded of some key principles to avoid getting into one of those pits. Jay Davis, one of our panelists and an attorney who focuses his defense practice primarily in the area of professional liability, offers the following advice to attorney litigators:
Top 10 Ways to Avoid the Litigator Blues
- Take great care of your client: Always communicate timely, truthfully, and consistently with your client. Your goal should be to over communicate with your client and always follow through on any request for information. Do what you say you will do. The ostrich approach never works.
- Don’t sue your client for fees: This is the number one way to face a potential malpractice claim.
- Refer business out: If you don’t know how to do it, then don’t do it. If it’s outside of your jurisdiction or area of practice, don’t do it. Associate a lawyer who does know how to do it.
- Document the scope of representation and terminate it when complete: Clearly define the scope of your representation at the beginning. Make sure to terminate the representation when it concludes.
- Know the law: Make sure you remain up-to-date and understand the law in the area of any case you undertake representation.
- Have a good deadline system: There is no reason a deadline should be missed. Have a solid system of tracking, reminding, and completing all deadlines. This must include redundancies within the system. Don’t be the sole source of deadline monitoring.
- Avoid conflicts of interest: This includes not just legal conflicts, but having personal relationships with clients, doing business with clients, or overly social relationships with clients. Always be cautious with multiple client situations and ensure that you have adequate written disclosure and informed consent.
- Disclose mistakes: You must disclose mistakes. As they say, the coverup is always worse than the crime. This disclosure includes not only to the client, but to your partners.
- Maintain good malpractice insurance: This is a tremendous resource both before and after a claim.
- Take care of your well-being: Maintain a healthy work-life balance and stay informed about legal developments to provide competent representation.
“The blues is celebration, because when you take sorrow and turn it into music, you transform it.”
~ Odetta Holmes
Walter Brock, the senior litigator at ALFAI’s Raleigh, North Carolina firm Young Moore and Henderson, also focuses much of his practice on the defense of attorneys in professional liability actions. Walter offers the following advice to attorneys who have just realized that they have made a big mistake that may impact one of their clients:
Top 10 Bits of Advice for the Litigator Who Has Made a Big Mistake
- It’s never as bad as you think it is. Your career is not over. Everyone will NOT think you are incompetent. Sure, your pride is hurt. Everyone will NOT find out about your mistake. Now it’s time to take the necessary steps to get out of the hole you’re in, and there’s a right way and a wrong way to do that.
- Don’t fix it yourself. This is the “wrong” way to get out of the hole. You almost surely will make matters worse.
- Talk to a mentor whose judgment you trust. Tell your mentor all the details of what has occurred, and take their advice on how to mitigate or solve the problem.
- People will help. You will be amazed at how many people, some of whom you don’t know, will step up and help you dig out of that hole.
- Come up with a plan of action (with your mentor and malpractice carrier). Rely on their judgment and advice for a specific plan of action to mitigate the damage from your mistake.
- After checking with your mentor, contact your malpractice carrier as soon as possible. You don’t want to be in a position of “late notice” to your malpractice carrier. They will be able to help.
- Know your ethical options to your client to let them know what happened. Have a partner or your mentor with you when you speak with your client. Call or meet with your client first, and then document the communication with a follow-up letter. Let your client know that they are entitled to separate counsel.
- Clients are like customers: They understand that mistakes can be made by their counsel. Be honest about what happened, and lay out the plan to mitigate the consequences. If you are not honest, things will get worse.
- Claims repair counsel hired by your malpractice carrier: They will work with you to get the issue mitigated or fixed. They represent the client AND you as the insured.
- This too shall end. Trust the process. It will be over soon enough. Don’t wallow in the misery of the problem. Work with others to fix it.
“When I’m singing the blues, I’m singing life.”
~ Etta James
The Blues of Dealing with Difficult People
From Law Practice Today, author Matt Potema offers these tips (edited by Chris Page) for dealing with difficult people, whether they be clients or colleagues.[2]
- Listen. Try to understand the source of their frustration while avoiding the temptation to interrupt and correct.
- Educate without being condescending.
- Know when to confront and how to deal with difficult realities. Evaluate and choose the appropriate medium of communication for the situation. If a client is in the wrong, don’t be afraid to tell them. Evaluate objectives through the lens of testimony and parties’ positions rather than through how parties wish reality to be.
- Unresponsiveness and inattention in a law practice can cause huge delays and expense. If your attempts to move a matter forward are thwarted by yelling matches or simply silence, be tactical yet constructive in your approach. Effective lawyering is often a chess match, and you must think two or three steps ahead. Treat every communication as if it will one day be read aloud in open court or in a conference room.
- Did you make a mistake? If so, own it, control damage, and put measures in place to minimize the same error from happening again. Thomas Jefferson said, “If you have to eat crow, eat it while it is young and tender.” Everyone makes mistakes but delaying or simply ignoring them causes problems to fester and you are setting yourself up for someone to be justifiably upset with you. Very few mistakes cannot be fixed, or greatly mitigated by getting out in front of the problem early.
- Avoid this happening again. Try to part ways with irrational people who unnecessarily complicate your life. We cannot always do this in our family lives, but in your professional world you must ask yourself whether dealing with a perpetually difficult person is worth it. Perhaps a staff change or a new position is necessary, or a long-term client should find a better fit or another attorney should step in.
- Effectively dealing with difficult people is a key component to maintaining mental well-being in the practice of law. As much grit as it may take, really try to understand their perspective before responding. Avoid the urge to pound on your conference room table, fire off hot-headed e-mails, or call them up and tell it like it is. Acknowledge their frustration, as misdirected or irrational as it may be, and thoughtfully devise a strategy for moving forward in your endeavor together collaboratively or working toward an exit.
Ted Hirt, a retired attorney from the Civil Division of the US Department of Justice, offered this advice (edited by Chris Page) in Dealing with Difficult Opposing Counsel.[3]
- Start off on the Right Foot. Establish a cordial relationship at the first opportunity. Greet the attorney with a handshake and a smile.
- Try to Be Cooperative: Courts increasingly expect counsel to cooperate in resolving their disputes.
- Be Calm and Stay Calm. If you deal with an abusive opposing counsel, it will be tempting to “fight fire with fire” by raising your voice, acting rude, and obstructing the progress of the case. You must resist the temptation to mimic bad behavior. You also should re-read your proposed email reply before you hit “send.” Consider asking a colleague to review what you intend to send. Otherwise, your anger may end up as an exhibit to a court filing.
- Make A Record of the Unprofessional Behavior. It may be wise to ignore some bad behavior. But, at some point, the other attorney may cross the line and interfere with your legitimate efforts to investigate the facts or conduct discovery. When that happens, you must create a record of that conduct, by retaining correspondence or emails, particularly if the matter must be raised before a judge or mediator.
- Take Time to Reflect About the Problem. If you are encountering a difficult opposing counsel, engage in introspection. As one former U.S. Department of Justice litigator has explained, you should review your behavior “to make sure you have not done anything to precipitate the nasty behavior or that might have been misconstrued by your opponent and generated the nasty behavior as a response, and, if you think you may have, apologize. That may have the desired effect of taking the temperature down.”
- Address the Problem Sooner, Not Later. If the problem persists, take action before the situation gets worse.
“There was a time when I had the blues – I mean I really had it bad. I couldn’t pay my light bill and I couldn’t pay my rent and I really had the blues. But today I can pay my rent and I can pay the light bill and I still got the blues. So I must been born with ’em… That’s my religion – the blues is my religion.
~ Muddy Waters
The Blues of Dealing with Aging Parents
The blues of dealing with aging parents are not to be underestimated and can seriously impact an attorney’s work life. So many of us fail to plan and find ourselves in very difficult situations with parents who need significant medical care, with parents who cannot stay in the homes they’ve lived in for most of their lives, and with parents who have not done any serious financial planning. The list of difficult situations with aging parents goes on and on.
Per the AARP, here are six tips to protect your parents’ legal rights, and your own:[4]
- Have the right documents. In addition to a will, make sure your loved one has a durable power of attorney (POA) for both health care and financial affairs. These legal documents will allow an appointed person to make medical or fiscal decisions for a frail or incapacitated relative. The health care POA is part of an advance directive. The other part is a living will, which spells out your wishes for care if you have a serious illness — for example, whether and when life-sustaining treatment should be stopped.
- Make a family plan. Discuss caregiving matters with all involved members of your family. Put in writing who will be responsible for which caregiving roles — and have all parties sign. This is not a legal document, but it will help keep peace within the family by making everyone’s role clear. The biggest precursor of legal problems is bad communication, Sabatino says.
- Organize important papers. Most people don’t realize how many legal documents they already have, or how many they will need for matters that arise. Important ones include:
- birth certificate
- marriage certificate
- divorce decree
- citizenship papers
- death certificate of a spouse or parent
- power(s) of attorney
- deeds to property
- deeds to cemetery plots
- military discharge papers
- insurance policies
- pension benefits
4. Explore potential financial help. Investigate public benefits such as:
- Social Security Disability Insurance (SSDI), monthly payments for people unable to work due to a serious medical condition
- Supplemental Security Income (SSI), a safety-net benefit for older, disabled and blind people with very limited income and assets
- Medicare, the federal health-care program for people age 65 and older
- Medicaid, the federal health-care program for low-income individuals and families
- Veterans benefits, including financial support for caregivers of former service members
- Supplemental Nutrition Assistance Program (formerly known as food stamps)
Online tools like AARP Foundation’s Local Assistance Directory and the National Council on Aging’s Benefits Checkup can help you find local, state and federal programs you qualify for.
Also, examine your loved one’s insurance and retirement plans, including (where applicable) life insurance, disability coverage, pension benefits, long-term care insurance and workplace health insurance. See whether any of them cover home health visits, skilled nursing, mental health services, or physical therapy and other short-term assistance.
If you need to take a leave of absence from your job to care for a loved one, you may be entitled to up to 12 weeks of unpaid leave under the federal Family and Medical Leave Act. Some employers offer paid family leave, and seven states (California, Connecticut Massachusetts, New Jersey, New York, Rhode Island and Washington) and the District of Columbia mandate paid leave for caregiving. Oregon and Colorado are set to follow suit in 2023 and 2024, respectively.
5. Look for tax breaks and life insurance deals. Your family member may be able to claim federal tax deductions for many health care costs, including a hospital bed or wheelchair; out-of-pocket expenses not covered by health insurance; remodeling the home to make it accessible; and hiring a short-term or part-time home health aide to provide respite for the main caregiver. Save receipts for medical expenses.
Also, find out whether your loved one has a life insurance policy that makes accelerated death payments to help pay for long-term care. You may also need to assume oversight of benefits of the surviving spouse, too, by making sure he or she is the beneficiary of your loved one’s IRA, bank account, life insurance policy and pension benefits. Your loved one may have also made a plan for pets in their will and set aside money to pay for their care.
“You have to make a decided effort to not get seduced by the Blues.”
~ Al Jarreau
Depression and Lawyers
Dr. Joann Mundin, M.D., writes in “The Dark Side of Success: A Psychiatrist’s Exploration of Depression in the Legal Profession:”[5]
The general population is significantly affected by depression, with 17.3 million persons, or 7.1% of all adults in the US, reporting having experienced a major depressive episode in 2017. But, the proportion of depression among attorneys is considerably higher: according to ALM’s Mental Health and Substance Abuse Survey from 2020, 31.2% of the more than 3,800 respondents report having a depressive disorder. This indicates that compared to the ordinary US adult, lawyers have an approximately three-fold higher risk of developing depression.
According to Dr. Mundin, there are many potential causes of depression among attorneys,[6] including:
- Being a lawyer requires high performance, stress, and stakes.
- Attorneys frequently strive for perfection. They need to be high achievers to succeed in their legal careers. When working on a client’s case, this level of perfectionism can be helpful, but it can also lead to ongoing stress.
- Lawyers receive legal education to practice law. Nonetheless, a career in law necessitates exceptional management, financial, and communication skills. Few lawyers naturally possess these abilities, and law schools do not adequately prepare lawyers with them.
- In addition, many lawyers lack the skills necessary for resilience, mental well-being, and self-care.
- Burnout is a culture that is pervasive in the legal sector. Several attorneys experience chronic, intense physical and emotional tiredness and anxiety, which can exhaust them.
- Attorneys worry about receiving unequal treatment or being singled out for prejudice due to mental illness. This severe problem keeps many more from seeking therapy and prevents more than half of those with mental illnesses from getting it.
- The uncertainties of practicing law can be debilitating, regardless of your level of training or experience. Due to the complexity of the legal profession, some lawyers believe they are incompetent and that if their clients learned of it, they would be fired or barred from practicing law.
- Most students entered law school with the hope that they would graduate feeling confident and in charge. The reality is that the profession of law is fundamentally characterized by uncertainty. You are vulnerable to despair unless you can accept that uncertainty.
- Legal professionals and staff are also susceptible to post-traumatic stress disorder syndrome, in addition to first responders and military personnel.
Dr. Mundin states that there are several emotional signs of depression in lawyers:
- Low mood – You may frequently and continuously experience sadness, anxiety, or irritability.
- Loss of joy – You no longer find enjoyment or interest in the pursuits, hobbies, or even work that used to make you happy.
- Guilt feeling – You might frequently or inappropriately feel guilty, helpless, or unworthy.
- Emptiness – You might frequently experience hopelessness, pessimism, or “emptiness.”
There are several physical signs of depression in lawyers:
- Loss of appetite and/or weight – Unintentional changes in appetite and/or weight might take the form of either an inexplicable hunger or weight gain or a noticeable reduction of appetite and/or weight.
- Sleep issues – You might have trouble falling asleep, insomnia, or interrupted sleep. On the other hand, depression may also cause frequent sleepiness or over-sleepiness.
- Cramps or digestive problems – You might experience stomach pains, digestive difficulties, or cramps that go undiagnosed and remain unrelieved despite treatment.
- Aches or pains – You may experience physical aches or pains in your muscles, joints, or head that have no apparent explanation and do not improve with treatment.
- Reduced energy or fatigue – You may experience extreme tiredness or a lack of energy.
- Changes in speed or movement – Do you notice any changes in speed while speaking or moving? Do you find it difficult to remain still while you are sitting? If you are getting slower and feel shaky while standing, it might also be a sign of depression.
There are several mental signs of depression in lawyers:
- Lack of concentration – You might lose concentration and make mistakes in simple day-to-day tasks. You might forget meetings, schedules, and important information and find it difficult to make decisions quickly.
- Fear of death – You may feel a continuous sense of death. Frequent thoughts of death or suicidal tendencies are red-flag signs of severe depression and should be taken care of immediately.
Dr. Mundin offers this advice (edited by Chris Page) for lawyers who have or might find themselves in a depressive state of mind:
- Forget about the stigma that is allegedly associated with mental health problems. Your health and well-being are essential things in the world. You need to identify at least one person you can confide in about the seriousness and breadth of your issues, whether a friend, relative, work colleague, HR representative or someone else.
- Get in touch with a medical or mental health professional. A qualified specialist can work with you to decide the best course of action based on your unique circumstances.
- Choose what you want to be your top priority. Find a means to spend more time with your loved ones. Find even a little time to figure out if exercising improves your mood. Go for it if you want to read books or listen to music. You should put your most critical priorities first, both personally and professionally.
- Avoid multitasking. Lawyers try to do multiple things simultaneously, like other professional experts. But doing so can be harmful for their mind. Being a lawyer, making a conscious effort to stop multitasking can enhance mental wellness. According to research, concentrating on several things simultaneously can harm our brains and negatively impact our mental health. Instead, develop the practice of planning your day so that you can focus on one item at a time.
- Learn healthy breathing techniques. Yeah, work on breathing deeply and repeatedly. There are numerous advantages of focused breathing and meditation. It reduces the levels of cortisol (the stress hormone) in the body, improves concentration and focus, and improves sleep quality by reducing stress and anxiety levels. Apart from that, it lowers blood pressure in individuals with hypertension and boosts immune system function by reducing inflammation in the body.
- Practice being mindful. For lawyers to manage their stress, anxiety, and depression, mindfulness can be a very effective strategy. Regular practice can aid in reducing stress (32%) and depression (29%), according to a study from the University of Western Ontario.
Finding Balance is Possible, Even for Lawyers
Ever taken more than a moment to think about the “Yin-Yang” symbol? It was created thousands of years ago by the Chinese to reflect the movement of the sun over the year’s celestial calendar. To the Chinese and other Asian cultures, the symbol came to represent much more in terms of an understanding of life and a way of being. To many Americans, in comparison, they paid the symbol cursory attention, simply noting that it reflected, on its face, the concept of balance.
For many, that is enough attention paid to balance. They acknowledge that balance is a laudable goal but delve no further. They go on about their lives, focusing on careers, paying the bills, raising families, and preparing for retirement. “Balance” becomes just another vague ideal, the fodder for idle dinner party conversation, and is paid little serious consideration.
This perspective is shared by many hard-working professionals, especially attorneys. But it is a view fraught with peril. Attorneys may be distinguished from other professions by their zeal for success and their competitiveness, perfectionism, and analytical nature. But these qualities are factors that lead attorneys down dark paths. The statistics are staggering: attorneys abuse alcohol or drugs at a figure twice the rate of the general population, and of those attorneys, it is estimated that 50% are dealing with depression, 33% are addictions involving illegal drugs, prescription drugs, sex and gambling, and 15% involve schizophrenia and bipolar disorder. The collateral damage is substantial. In addition to the incalculable impact on families, it is estimated that over 50% of lawyers facing disciplinary actions have mental health or substance abuse issues. And a very hard fact to confront: lawyers have the highest rate of suicide of any profession.[7]
Fortunately, State Bars across the country have recognized the need to help their members. Treatment and resources are available through Lawyer Assistance Programs in all 50 states. Professional counseling, medication, and support groups all continue to help the struggling attorney. There are also hundreds of books and courses for the professional seeking self-analysis, wisdom, and practical advice.
But each of these avenues for treatment, healing, and self-improvement share one thing in common: the principle embodied by the Yin-Yang symbol – BALANCE.
To Asian cultures, the circle encompassing Yin and Yang represents the unity and balance of the forces in the universe. This unity is made up of two opposite but complementary forces that we find in every object and every process. They are the forces of light and darkness, ebb and flow, positive and negative, good and evil. We see them in the change of seasons, in the movement of the tides, and in the existence of a harmonic universe. The Yin and Yang cannot exist without each other. Both are necessary in the universe and in our lives. The boundary between these forces creates the harmony and balance from which everything is created. Yin and Yang are symbolic of eternal change and the natural rhythms of life. The symbol for them is not static. It is kinetic and flowing.
Each of the hard-working professionals that attend the ALFA International Client Seminar know the burden of responsibility: paying the bills, getting new clients, doing good work in our jobs, family, college expenses, saving for retirement, etc. Let’s consider the things that are part of our lives that represent “responsibility” to be the “Yang” in our lives. Those things are understandably important to us, but for each of us, our responsibilities can weigh us down and cause depression, mental and emotional fatigue, alcoholism, drug addiction and more. Our lives can spiral out of control, leading us to make poor choices in our daily work decisions and in our personal lives.
We all recognize that our lives are happier when we have BALANCE in our lives. We need a “Yin” to our “Yang.” We need those things that are not “have to do” things but “want to do” things. We need things to be passionate about, that are fun, and that are fulfilling on a deep level. When we have those things in our lives, the things that represent our responsibilities don’t feel quite so burdensome.
What is the right approach for you to find the balance you need? Only you can work that out. If you were to throw all of the books, articles, websites, and videos on work-life balance into a giant heap, once the dust settles you would see the following common themes and advice:
Top 10 Tips to Help You Find Work-Life Balance
- Decide if work-life balance is important to you.
- If it is, then make the commitment to develop, and stick to, a plan to gain balance.
- Take the time to think about your life and set your values and priorities.
- Define success for yourself. Be creative in how you can find balance.
- Establish and enforce boundaries between work and “not work.”
A. Don’t always be plugged in. Put away your phone for much if not all of your evenings.
B. Let clients, office staff, and family know what your boundaries are. - Build support networks at home and at the office.
- Exercise regularly.
- Drop activities (and people if you can) that sap your time and energy.
A. Do fewer things and do them well.
B. Be willing to say no. - Build downtime into your daily schedule. Take the time to “get your Zen on.” Meditate, or just reflect thoughtfully on things you are grateful for.
- Start with small steps and build from there.
So, the question is: Do YOU yearn for a Yin to your Yang? Does your life need more balance? To all of you high-achieving, uber-successful (or perhaps struggling) folks who have taken the time to read this paper, are you disciplined enough to take the time to make some progress on this laudable goal? Can you make a plan of action to have a balanced life? Can you make a commitment to yourself and to your family, and live up to that promise? What does it take? Only you know the answer to that question.
And if and when you find yourself singing the Blues, know that we ALL do. And it’s ok.
And this too shall pass.
[1] The contents of this article have been compiled by Chris Page, and any complaints/ criticisms/ blues singing should be directed to him, and not to his blameless collaborators for this presentation.
[2] https://www.lawpracticetoday.org/article/tips-dealing-difficult-people/
[3]https://www.americanbar.org/content/dam/aba/publications/pass_it_on/Difficult_Opposing_Council_Hirt_Article.pdf
[4] https://www.aarp.org/caregiving/financial-legal/info-2020/caregivers-legal-checklist.html
[5] https://www.lawyerswithdepression.com/articles/the-dark-side-of-success-a-psychiatrists-exploration-of-depression-in-the-legal-profession/
[6] See also: https://www.clio.com/blog/dealing-with-lawyer-depression/?amp
[7] A more in-depth discussion of these and related statistics are found further the article authored by Chris Page and Melanie Cheairs for the 2015 ICS, to be found on ALFAI’s website. There are many resources reporting on the relationship between attorneys and alcohol, drug abuse, and mental health. For a review of many of the relevant statistics, see generally “17 Statistics on Drug Abuse Among Lawyers,” Intervention Strategies (January 7, 2014); http://interventionstrategies.com/17-statistics-on-drug-abuse-among-lawyers/; “The Rough Road to Redemption,” August 2013 ABA Journal, at 51; “Alcoholism, Drug Abuse and Lawyers: Are We Ready to Address the Denial?”, Rick B. Allan, 31 Creighton Law Review 265 (1997); “Substance Abuse within the Legal Profession: A Symptom of a Greater Malaise,” Notre Dame Journal of Law, Ethics & Public Policy, Vol. 7, Article 9 (February 2014); and http://www.americanbar.org/groups/lawyer_assistance.html.