Passion or Disinterest in Practice?

[Monophobia]

With the cases presented to us in the semester so far, I find myself getting most riled up over police and employer misconduct. This is oftentimes especially true in cases where, against my general intuitions, the court decides that certain actions do not constitute misconduct. I think I react this way because I'm simply passionate about these issues in particular. I think I'd actually enjoy practicing Crim or L&E. But I'm unsure about how well this 'passion' will translate into practice. My gut reaction is to say that one would prefer a passionate advocate to an indifferent one, but after thinking about it, I'm not so sure.

One idea that has been stressed to us in class so far is the importance of "wearing both hats" in a case. You need to be able to see both sides of an argument — to put yourself in the opposing side's shoes — to argue well. In the sorts of cases I've mentioned, I find it nearly impossible to empathize with the views of the other side. I simply miss arguments entirely, or disregard others because I don't buy them in the slightest. I see this being an issue in practice because obviously I'll need to refute counterarguments to strengthen my client's position. How can I do this if I simply can't think of any counterarguments that might be convincing? I think if I was more disinterested in the outcomes of certain cases, I might not have this problem. I might be able to do my job more effectively by being able to switch between hats with ease.

This is likely very stupid and essentially boils down to "just think lol", but I'm wondering if there's a better way to shake this. This is important to me because I'd like to do my very best to service my future clients, and I suppose it's better to address an issue with my thought process sooner rather than later. I can also see this being a hindrance in exams.

Is it better to be a passionate or disinterested lawyer? Am I making a mountain out of a molehill? Is this a common problem? How can I do better? 

[CleanHands]

Great thread and legitimate concern.

Being defence-minded made me a better prosecutor.

I am currently struggling mightily with a file on the defence side precisely because I'm REALLY fired up about it.

You're right to flag that it can make one preach to the choir and be unpersuasive to an audience that may not have the same inclinations. But I think intellectually working through the devil's advocacy isn't the hardest part. What I think you also should be concerned about, that I'm having an issue with myself, is firstly that one needs to be calm and level-headed and not overstate things in oral submissions before a court. I'm really pulling punches on this matter because if I don't I'm going to worried about what I'll say on the record and whether I'll appear to be angry at the judge. Early in one's career, oral submissions before a court are challenging enough once the adrenaline gets going without also being consumed by intense feelings about a case on top of that. Sadly we have to be mindful of civility rules and such.

Secondly, there is such thing as giving too much of a shit in terms of the emotional and psychological toll one's work takes on oneself. Now, I am absolutely the wrong person to give any sort of advice about this precisely because it's a problem for me but I wanted to flag that it's a problem to be aware of. Some of my files have made me really, really angry even when I've actually "won" in the end. I haven't yet experienced a major "loss" on such a file that has gotten me absolutely riled up but I am already dreading it and bracing myself for it because it's going to be rough. And I'm typing right now when I should have been asleep hours ago, because I can't sleep with my work bouncing around my head.

All of that said, it's always nice to see there are other lawyers and law students out there who actually give a shit, and I appreciate this thread.

[123]

6 hours ago, Monophobia said:

How can I do this if I simply can't think of any counterarguments that might be convincing?

In part, you just look at the reasons judges previously rejected arguments that you like. In the beginning of your practice, that means learning the case law and asking senior lawyers where they had issues on similar fact patterns. With time, I find I increasingly know how decisionmakers tend to look at things -- either because I dealt with the issue before or because a certain finding would be consistent with decisionmakers general concerns and reasoning -- and I'm better able to anticipate the issues as I prepare witnesses and documentary evidence. 

My perspective is that my job is to get my clients the best available outcome. Sometimes that means addressing concerns that I don't think are relevant or important. That can be a little frustrating. But to be good at my job, I have to acknowledge that I work within a system, and that does inevitably mean advancing your case within the processes and legal constraints imposed by law. It doesn't mean that I won't push the law where I can, or swat away really stupid arguments -- those things are often part of advocating for your clients. But yeah, you do have to engage with and address reasoning that you don't personally buy.

As you note in your OP, you have client obligations. You need to spot issues that can arise, even if you strongly disagree with the reasoning underpinning those concerns. I tell clients all the time that I think a decisionmaker could reasonably find 'thing X', even where I personally feel 'thing X' would be a ridiculous finding. The reality is that clients have a right to know the risks and issues before they pay for your work, and they can only know those things if their lawyer is objective enough to spot problems and properly advise. Now's the time to practice that skill. The things you're reading now in law school are or were precedent. Even if they're ultimately overturned, the arguments on the other side often made their way into multiple lower court and appellate decisions. They have legitimacy, even if they're stupid.

Don't lose your passion. But learn to work with the law as it is, and not just what you want it to be.

Edited October 24, 2023 by realpseudonym

[Naj]

17 hours ago, Monophobia said:

Is it better to be a passionate or disinterested lawyer?

There are people who will move mountains if you pay them enough, even though they may otherwise be disinterested and dispassionate about whatever subject matter they’re dealing with. As long as one is doing a good job in serving the involved parties properly, whether that be a client or society as a whole, who really cares? This is the way I like to look at it, even though admittedly most people (myself included) probably need to be somewhat interested, at the very least, in the work they do in order to do it decently well.

I actually initially wanted to become a clinical psychologist. I was interested (passionate?) in criminology, aggression, violence, and addiction. I decided to do law instead though. In Crim law, I get to engage in those subjects of interest from an angle that isn’t focal, by way of the nature of the clients that typically find themselves in need of legal representation. Here, the law is focal. It’s a nice balance for me and I find the subject material stimulating enough to get goosebumps when reading my crim textbook. Does this make me passionate? Probably not. I just want to do honorable work that I can enjoy.

[Monophobia]

16 hours ago, CleanHands said:

Great thread and legitimate concern.

Being defence-minded made me a better prosecutor.

I am currently struggling mightily with a file on the defence side precisely because I'm REALLY fired up about it.

You're right to flag that it can make one preach to the choir and be unpersuasive to an audience that may not have the same inclinations. But I think intellectually working through the devil's advocacy isn't the hardest part. What I think you also should be concerned about, that I'm having an issue with myself, is firstly that one needs to be calm and level-headed and not overstate things in oral submissions before a court. I'm really pulling punches on this matter because if I don't I'm going to worried about what I'll say on the record and whether I'll appear to be angry at the judge. Early in one's career, oral submissions before a court are challenging enough once the adrenaline gets going without also being consumed by intense feelings about a case on top of that. Sadly we have to be mindful of civility rules and such.

Secondly, there is such thing as giving too much of a shit in terms of the emotional and psychological toll one's work takes on oneself. Now, I am absolutely the wrong person to give any sort of advice about this precisely because it's a problem for me but I wanted to flag that it's a problem to be aware of. Some of my files have made me really, really angry even when I've actually "won" in the end. I haven't yet experienced a major "loss" on such a file that has gotten me absolutely riled up but I am already dreading it and bracing myself for it because it's going to be rough. And I'm typing right now when I should have been asleep hours ago, because I can't sleep with my work bouncing around my head.

All of that said, it's always nice to see there are other lawyers and law students out there who actually give a shit, and I appreciate this thread.

I was actually really hoping you would reply to this post. From your comments on the forum, I have a feeling that we hold similar values. I can see myself having the same problems with becoming emotionally invested in cases where I care the most about the outcome. I get riled up enough reading cases from a million years ago, I can't imagine how I would react being involved in a similar situation myself.

On the flip side, have you felt that you've benefitted from being passionate in this way? If you could choose to care less, would you? I want to give a shit, and I do, but I also want to do the best job I can. If giving a shit impedes my ability to do my best, then perhaps I should be wary... What do you think?

[Monophobia]

11 hours ago, realpseudonym said:

In part, you just look at the reasons judges previously rejected arguments that you like. In the beginning of your practice, that means learning the case law and asking senior lawyers where they had issues on similar fact patterns. With time, I find I increasingly know how decisionmakers tend to look at things -- either because I dealt with the issue before or because a certain finding would be consistent with decisionmakers general concerns and reasoning -- and I'm better able to anticipate the issues as I prepare witnesses and documentary evidence. 

My perspective is that my job is to get my clients the best available outcome. Sometimes that means addressing concerns that I don't think are relevant or important. That can be a little frustrating. But to be good at my job, I have to acknowledge that I work within a system, and that does inevitably mean advancing your case within the processes and legal constraints imposed by law. It doesn't mean that I won't push the law where I can, or swat away really stupid arguments -- those things are often part of advocating for your clients. But yeah, you do have to engage with and address reasoning that you don't personally buy.

As you note in your OP, you have client obligations. You need to spot issues that can arise, even if you strongly disagree with the reasoning underpinning those concerns. I tell clients all the time that I think a decisionmaker could reasonably find 'thing X', even where I personally feel 'thing X' would be a ridiculous finding. The reality is that clients have a right to know the risks and issues before they pay for your work, and they can only know those things if their lawyer is objective enough to spot problems and properly advise. Now's the time to practice that skill. The things you're reading now in law school are or were precedent. Even if they're ultimately overturned, the arguments on the other side often made their way into multiple lower court and appellate decisions. They have legitimacy, even if they're stupid.

Don't lose your passion. But learn to work with the law as it is, and not just what you want it to be.

I really appreciate your pragmatic advice here. I think I am struggling with the adjustment from the "should be" to the "is".

I think the answers to the following questions have been implied in your comment, but I'll ask anyway. Have you often felt frustrated by the limitations imposed on you as a member of the system? How do you deal with those frustrations? Is it simply a matter of understanding that working within these limitations is necessary to do the best job you can for your clients?

[Aureliuse]

Emotions make us human. A lot of advocates, even veteran and renowned advocates, can on rare occasions lose their "objectivity" and inner "voice of reason" from time to time. E.g. sharply-worded angry letters, blaming opposing counsel, sharp practices such as withholding evidence, and misrepresentations in court.

Sometimes, not even a "strictly off the record" call and "are you alright?" call between colleagues with long established working history can settle the emotions. Sometimes long-term friendships are worn down due to a bad file.

In times like this, it's good to speak to someone senior to test your position and your beliefs. As a junior, it's very easy to believe the other side is the devil himself. Part of it is from a lack of experience in court, and with clients. In most cases, no one is that awful (or that perfect on your side). Seeing the other side as the devil makes you blind to your weaknesses, and I guarantee that the opposing counsel will 100 percent make submissions on where your case is weak.

We all bring our own values and "what's right and wrong" to the practice. Just like we don't agree on many topics in politics, judges will not always see things your way. You can lose a case on purely procedural (missed limitation period/filing date) or technical note (legislation has a gap and the judge adopts a literal reading, instead of a contextual one). You will lose as a litigator, it's unavoidable.

Sometimes lawyers take seemingly unreasonable positions for their clients because it's all they have left - the case is just that awful. Lawyers are only left with a "hail mary" play.

We don't get to choose who we want as clients, and what our clients do before and after seeing us or engaging our services. Clients' personalities are what they are. Case facts are given as they are. A good lawyer will work with what he or she has been given.

Tough cases try courts and counsel.

Know where your personal sensitivities are, and find a way to know what can cause you to lose your professional focus. Once you are senior enough, you would have more freedom to say "no" to certain files, or delegate them to someone else. Hopefully you would have the financial freedom to fire clients at will. For many us, it's not an option.

I am a lawyer who "gives a shit" and would give my best no matter how impossible the odds. Sometimes I am on the side of a vile domestic abuser, a deadbeat dad, a philanderer, and sometimes I am on the side of a domestic violence victim, a poor housewife, a suicidal child, an emotionally-devastated professional. No matter which side you are on, it's good to remind yourself that we all have a job to do under the Rules of Professional Conduct to advance every avenue of argument and advocate zealously for our clients' cause. 

If it helps, think of it this way. By having a good counsel on the "bad side," hard cases are likely easier to settle since counsel could talk frankly on the facts; good counsel on both sides know the law, their obligations, the judges and procedural rules, and may have established histories of good working relationships - which all contribute to settlement. A good counsel for a bad client can control the client to prevent the case from "blowing up" further.

Edited October 25, 2023 by Aureliuse

[NoBoredReport]

This is a really interesting thread and something I think about a fair amount. It's certainly prudent to try and see both sides of an argument because in an adversarial system, you can bet on the other side finding your argument's weak spot and making as big a deal about it as possible, even if in your assessment it's totally baseless. You're doing the right thing in recognizing this potential blind spot early and reminding yourself about it often. 

That being said, I would encourage you to think about how the opposite is also true. Sometimes being partial or invested in a situation might make you see things a more dispassionate observer might miss. 

I can't speak to criminal law, but on the union and employee side of the labour bar, many of us got involved in this area of law precisely because we're passionate about workers' rights and wanted to pursue a legal career with a more social justice bent. I think at times people overemphasize the "which side are you on?" dynamic of the labour bar, but there's no question that it is a more politicized divide than most areas of law. Many of us (perhaps most) are, at some level, partial to a set of political values that we bring to our work. I don't think that necessarily makes me a worse advocate though. For instance, nobody has to explain to me why an employee who was struggling with addiction and exhibiting obvious signs that she needed help might not have felt comfortable bringing that to her boss to get an accommodation. Or why a union might decide to hit the streets when an employer has legislated them back to work and invoked the notwithstanding clause. In other words, I get it, and that's not always a bad thing. 

However, and I think this is important if you do end up pursuing a career in labour law (which you've suggested is something you might be interested in): none of that is why a union or employee is coming to you for advice. They are coming to you for counsel on the law and how that impacts their situation. My union clients do not need me to tell them that the employment relationship can be unfair. They know. What they need me to explain is what they can do about it. Sometimes the answer is "very little" and we have a frank conversation about why it sucks that the system works this way, but that until it doesn't, we have to work within it. On some days, and on some issues, that is an easier conversation to have than others, but there's no avoiding it if you are going to do your job competently. 

Also, as an aside, @CleanHands thoughts are spot-on about the importance of how you characterize injustice before decision-makers. Understatement is your friend.