lawyer wellbeing

Improving wellness 10 minutes (and one small bite) at a time.

Michael

I present a lot of CLEs in May and June. Many of the seminars include a “wellness” component.  This year, I’ve noticed a new dynamic to the wellness discussion.

To be clear, we’re at a place where people agree that self-care and work-life balance are critically important to fending off the stress and anxiety that comes with the profession. That’s a good thing.  Unlike 5 years ago, when some grumbled that “wellness” isn’t part of legal ethics or professional responsibility, I never leave a wellness seminar worried about the reception to the message. 

But what I’ve noticed during the seminars is this.

Despite recognizing the need to look after their own well-being, many people expressed concern about finding the time to do so.  Demands on their time – whether work or personal – can be such that the thought of even trying to fit wellness into the schedule seems too daunting.

Until this week, my only response was to remind people something to the effect of “experts will tell you that you must find the time and that if you don’t, you’ll be at risk of your stress morphing into burnout.” A perfectly fair (and common) response is “Mike, easier said than done.”

Then, a few days ago, I stumbled across The Rule of 10: A Simple Training Tip That Will Change Your Running.  Writing for Trail Runner Magazine in May 2022, Nicholas Triolo explained:

“The Rule of 10 was something I first heard of while running through Portland, Oregon’s Forest Park with friend and decorated ultrarunner Jennifer Love. We were discussing motivation.

‘When nothing else seems to work,’ she said, ‘I call forth the Rule of 10.’

‘The Rule of 10?’ I said between labored breaths.

‘The Rule of 10.’ Love explained that, despite its simplicity, no matter what life brings you can nearly always complete ten minutes of activity. ‘If I’m ever feeling like I just can’t do a run, I always give myself ten minutes. And if, after ten minutes, I will want to quit, then I’ll turn my train around and stop running.’”

Triolo went on:

“The point was this: Whenever things feel heavy, think bite-sized, something author James Clear Clear is known for underscoring in his book, Atomic Habits (one of marathon world-record holder Eliud Kipchoge’s favorite books of all-time). ‘When making plans, think big. When making progress, think small,’ writes Clear. ‘Every action you take is a vote for the kind of person you want to be.’”

What a great concept!

If incorporating wellness into your routine seems daunting, follow the advice from Triolo and Clear: think small, like bite-sized portions.  As Jennifer Love said to Triolo, I’m guessing you can always find 10 minutes.  Start there.  Small? Maybe.  But it’s ten more minutes than zero minutes.

As I drafted this blog, the message seemed familiar. Then, it struck me.

Five years ago I posted “Lawyer Wellness: resolve to find 6 minutes for yourself.”  In it, I referred to Jeena Cho, who has long been a leading voice in the attorney wellness movement. In 2018, the ABA Journal published Jeena’s Mindful Mediation: an achievable resolution for lawyer well-being.  As Jeena points out, even only 6 minutes per day can help to improve well-being.

Wait a minute . . . I just negotiated against myself!!! Only a few paragraphs ago I was suggesting that you find 10 minutes, and here I am down to 6!

Anyway, you get the point.

Does working on well-being seem daunting? It needn’t be.  Start small, with bite-sized portions.

Future You will thank You.

As always, let’s be careful out there.

RESOURCES

Previous Wellness & Well-Being Posts

Wellness Wednesday: We’ve only just begun to begin.

Michael 4 Comments

Note: this post references suicide and suicidal ideation. If you or someone you know is having suicidal thoughts, contact one of the numbers at the Vermont Suicide Helpline.  It’s okay to ask for help and help is available.

****************

I posted Lawyers Helping Lawyers on March 3, 2016.  My first ever post to address lawyer wellness & well-being, it introduced readers to the now well-known Hazelden Study that revealed “substantial and widespread levels of problem drinking and other behavioral health problems in the U.S. legal profession.”

Since then, Vermont’s legal community has done an admirable job promoting a healthier profession. Our work has been both big & small, running the gamut from the 2018 State Action Plan issued by the Vermont Commission on the Well-Being of the Legal Profession to the fact that we now (gasp!!) openly discuss wellness.

As well as we’ve done, we’ve only just begun.

If this sounds familiar, maybe it is.  In 2019, I posted Attorney Wellness: We’ve Only Just Begun. In it, I wrote:

“Last November, Above The Law posted Burnout, Flame Out, Or Timeout?  The post was spurred by the fact that a lawyer named Paul Rawlinson had “taken a leave of absence to recover from the sheer exhaustion of running the second-largest law firm in the world.” In the post, author James Goodnow pitched an argument I’ve often made, albeit in a way much more eloquently than I.  He wrote:

  • “If the classic answer to the increasing demands of the legal marketplace has been to get tougher, let me once again advocate for a new approach: getting ‘realer.’ We need to let go of the outdated concept of the inhuman, never-tired, always-working hero attorney and replace it with the vision of actual human beings, because that’s what we all are. We’re people, with physical and mental limitations, lives and families outside of work, and interests beyond briefing, drafting, and billing hours. We need to take better care of one another, at all levels, and take better care of ourselves.”

Flash forward to very sad news.  Paul Rawlinson, the attorney who took the leave of absence?  He died last Friday.  Above The Law reported on his passing.

Rawlinson’s death crystallized a thought that’s been nagging me since the State Action Plan issued: we’ve only just begun.

Have we raised awareness? Yes, we have, and it’s a damned good thing that we have.

But it’s not enough.”

Later in the same post, I cited to two sections that appear in the ABA’s Well-Being Toolkit for Lawyers and Legal Employers. 

The first:

“We are happiest and healthiest when we adopt healthy work habits and lifestyle choices. Importantly, though, we won’t be successful on our own. Well-being is a team sport.”

The second:

“This means that, if we truly desire to improve wellbeing, we can’t focus only on individual strategies like making lawyers more resilient to stress; it is equally important (if not more so) to focus on systemically improving our professional cultures to prevent problems from developing to begin with. We are interdependent in that our organizational and institutional cultures—to which we all contribute and which, in turn, shape us all—have a huge impact on our individual well-being. When our cultures support our well-being, we are better able to make good choices that allow us to thrive and be our best for our clients, colleagues, and organizations.”

Whew!

This has been a long-winded way of getting to today’s point: we’ve only begun to begin. We must continue to work to make the profession healthier. 

Last month, MDPI published Stress, Lonely, and Overcommitted: Predictors of Lawyer Suicide Risk.  The report details a study into the predictors of lawyer suicide risk.  Numerous outlets reported on the study, including Psychology Today, Reuters, Above The Law, and The ABA Journal. Here’s an excerpt from Psychology Today’s coverage:

“Until now, very little has been studied about the specific predictors of lawyer suicide risk. New research suggests that high levels of perceived stress, high levels of work overcommitment, loneliness, and being male are all significantly associated with an increased risk of suicidal ideation among lawyers. Specifically, the risk of suicidal ideation was:

  • 2.2x higher among lawyers with high work overcommitment;
  • 1.6x higher among lawyers with an intermediate level of work overcommitment;
  • 2.8x more likely for lawyers who screened as lonely compared to those who did not screen as lonely;
  • 1.8x more likely for lawyers with a history of at least one mental illness diagnosis;
  • 22x more likely for those lawyers with high perceived stress;
  • 5.5x more likely for those with intermediate perceived stress.”

Patrick Krill is one of the study’s authors.  Following its release, The American Lawyer published Patrick’s commentary When Our Stress Becomes Dangerous.  I recommend reading it.  When I first read it, I was struck by this paragraph:

  • “To be fair and optimistic, it is important to note that meaningful efforts to improve mental health have been underway and gaining momentum in the legal profession for the last several years, and many dedicated individuals are doing excellent work. As someone whose earlier research and advocacy helped ignite the current push for improved wellbeing in the legal profession, I have sincere gratitude for the progress we’ve made. But I also know the goal line remains elusively far away, and often obscured by the more stubborn forces of inertia, maladaptive attitudes, entrenched business models and extrinsic motivations.”

This is the point that I was trying to make in 2019’s We’ve Only Just Begun.  I feel now like I did then. 

Earlier today I sent Patrick a message. Referring to the recent study, I asked:

  • “Would this be a fair takeaway? That, as good as it is that we are providing more resources (and understanding) to legal professionals who seek help for behavioral health issues, it’s as important that we start to address the root causes. For instance, unreasonable workload expectations.”

Patrick’s response included:

  • “Yes, that is absolutely a fair takeaway from the most recent study. It is important to take a dual approach of providing resources and addressing root causes. To date, the profession has really only been doing half of what is needed by providing resources.”

Here in Vermont, there’s good news: we have a map to help navigate the beginning of our journey down the second half of what’s needed.  That map is part of the 2018 Action Plan.  Specifically, it’s the report from the Commission’s Legal Employers Committee. 

Whether here or at seminars, I’ve often stated my appreciation for the Legal Employers Committee report.

In this post, I noted the positive response to the Committee’s recommendation that employers:

  • “Consider a policy that employees should not—apart from emergencies—check their work email during non-working hours. Moreover, employers should allow all legal professionals to set reasonable boundaries on responding to emails, for example, letting clients know that barring an emergency, they may not get an email response immediately, but the employee will respond within a certain period of time.”

In another post, I noted my support for this suggestion:

  • “In firms that impose billable hour quotas on attorneys, assess whether and how that quota system may be contributing to unproductive competition, excessive stress, and unhealthy work habits. In large firms, an anonymous survey may be the best way to assess this issue. In smaller firms, it can be done through simple observation. If a quota system appears to be encouraging unhealthy behavior and excessive stress, modify it, eliminate it, or consider alternatives.”

Most recently, I referenced the Legal Employers Committee in this post about a California study that found that lawyers who perceive their employers to value them for their human worth reported feeling healthier than lawyers who perceive their employers to value them as revenue-producers, if at all. I connected the study to the Legal Employers Committee’s conclusion that:

  • “Legal employers, meaning all entities that employ lawyers, paralegals and legal assistants, can play a pivotal role in promoting and maintaining lawyer well-being.”

Okay. Pause.

I feel like I’ve gone on far too long and have lost my point.  My point is this: we’ve only begun to begin.

Yes, helping those in need is great. And it’s great that we’ve started to destigmatize help-seeking behavior. And it’s great that we’ve started to decouple assistance from discipline.  And it’s great that we now provide resources and referrals to those in need.

But why wait until they’re in need? Let’s do more to keep the need from arising.  Let’s address unreasonable workloads and work expectations, inflexible scheduling, extreme incivility, and other “maladaptive attitudes and entrenched business models” that are harming members of the profession. 

And it’s got to be more than blog posts, social media posts, and CLE presentations. It requires action in your offices.  Action that is as easily begun as perusing either the Legal Employers Committee’s section of the 2018 State Action Plan, the ABA Well-Being Toolkit for Lawyers and Legal Employers, or the ABA Well-Being Toolkit Nutshell: 80 Tips For Lawyer Thriving.

There’s no better or more important time to begin than now.

Note: Patrick Krill is the speaker in one of the virtual CLE options that’s part of the VBA’s upcoming Mid-Year Meeting. Go here for more information on the meeting and Patrick’s seminar “Mental Health and Well-Being as a Strategic Priority for a Sustainable Profession.”

Previous Wellness & Well-Being Posts

Monday Morning Honors #271

Michael

Happy Monday! 

Friday’s post generated a recurrent question: what are Irish nachos?  They’re nachos, but with potatoes instead of tortilla chips.  On Super Bowl Sunday, The First Brother used tater tots.  Blasta!

Friday’s questions are here.  The answers follow today’s Honor Roll.  

Congratulations to all, with special welcoming kudos to first-time Honor Roll members Joe Strain and Brendan Walsh!

Honor Roll

  • Karen Allen, Karen Allen Law
  • Penny Benelli, Dakin & Benelli
  • Alberto Bernabe, Professor, UIC School of Law
  • Amy Butler, Law Office of Amy Butler
  • Beth DeBernardi, Administrative Law Judge, Vermont Department of Labor
  • Andrew Delaney, Martin Delaney & Ricci
  • Heather Devine, Tarrant Gillies Shems
  • Robert Grundstein
  • Michael Kiey, Esq.
  • Deb Kirchwey, Law Office of Deborah Kirchwey
  • Glenn Jarrett, Jarrett Hoyt
  • John Leddy, McNeil Leddy & Sheahan
  • Pam Loginsky, Deputy Prosecuting Attorney, Pierce County (WA)
  • Kevin Lumpkin, Sheehey Furlong Behm
  • Jack McCullough, Project Director, Mental Health Law Project, Vermont Legal Aid
  • Jeff Messina, Messina Law
  • Herb Ogden
  • Keith Roberts, Darby Kolter & Roberts
  • Jim Runcie, Ouimette & Runcie
  • Joseph Strain, Marsicovetere & Levine
  • Jonathan Teller-Elsberg, Staff Attorney, New Hampshire Legal Assistance
  • Jason Warfield, J.D.
  • Brendan Walsh, Quantum Leap Capital
  • Thomas Wilkinson, Cozen O’Connor

ANSWERS

Question 1

Which of the 7 Cs of Legal Ethics includes keeping abreast of developments in relevant technology and looking out for one’s own wellness & well-being?

COMPETENCE.  V.R.Pr.C. 1.1; See Comments 8 and 9.

Question 2

There’s a rule that prohibits a lawyer from having a sexual relationship with a client. Which of the following is/are an exception(s) to the rule?

  • A.  A consensual sexual relationship existed before the attorney-client relationship was formed.  V.R.Pr.C. 1.8(j); See also, this post.
  • B.  The client gives informed consent to the sexual relationship, waiving the potential conflict.
  • C.  A & B.
  • D.  Neither A nor B.

Question 3

Lawyer called me with an inquiry. I responded “generally, the rule relaxes the duty of loyalty that you owe to the person but does not relax your duty to maintain their confidences.”  The rule I referred to specifically addresses a lawyer’s duties to:

  • A.   former clients.
  • B.   prospective clients.  See, V.R.Pr.C. 1.18
  • C.   a represented person who is seeking a second opinion.
  • D.  an employee who is not within an organizational client’s “control group.”

Question 4

Attorney called me with an inquiry.  I responded, “the rule’s first requirement is that, as far as possible, you maintain a normal client-lawyer relationship with the client.”  Given my response, it’s most likely that Attorney contacted me because Attorney suspected that a client _______________:

  • A.  had used Attorney’s services to commit a crime.
  • B.  had presented false evidence to a tribunal.
  • C.  had filed a disciplinary complaint against Attorney without firing Attorney.
  • D.  had a diminished capacity to make adequately informed decisions about the representation.  V.R.Pr.C. 1.14(a).

Question 5

The same lawyer plays an important role in two of the most well-known movies of all-time. In the first movie, the lawyer says “I have a special practice. I handle one client.”   In both movies, the lawyer spends a lot of time assisting or advising the client and the client’s family to engage in criminal activity. 

On occasion, the lawyer also asked others for favors on behalf of the client.  When one such request was denied, the lawyer said “Mr. __________ never asks second favor once he’s refused the first, understood?”

The lawyer might have appeared in yet another movie, but the character was written out after the actor demanded to be paid the same as the movie’s lead. 

Name the movie franchise, the lawyer, and fill-in-the-blank to provide Mr.’s last name.

The Godfather

Tom Hagen (played by Robert Duvall)

Mr. Corleone never asks twice.

Wellness Wednesday: Don’t Stresslax

Michael 4 Comments

It’s Wednesday, which means it’s time to discuss wellness.  Today’s topic: tips on recognizing and responding to anxiety.

I’ll cut straight to the chase: I recommend The Legal Burnout Solution: How to Identify and Manage Attorney Anxiety.  It’s by Cynthia Sharp and Rebecca Howlett and appears in the latest report from the ABA’s Solo, Small Firm and General Practice Division.

I’ve mentioned Cynthia before.  I first encountered her through her work with The Sharper Lawyer. Later, I heard nothing but rave reviews for a presentation Cynthia did for the Bennington County Bar Association. Finally, I was honored that Cynthia referenced me in a post she did for the ABA Journal on how best to respond to negative online reviews.

A few years ago, Cynthia and Becky Howlett started The Legal Burnout Solution.  They’re doing good and important work.  Their piece in the GPSolo report shares great strategies on identifying and managing stress.  While I urge people to read the entire article, I’m going to highlight a paragraph that resonated with me.

I’ve often used this space to remind legal professionals to make time for interests outside the law. When Jennifer Emens-Butler was with the Vermont Bar Association, she did the same via her Pursuits of Happiness column in the VBA Journal. Well, now we can add Cynthia and Becky to the chorus — and we can introduce a new word to our lexicon!  Here’s one of their tips to manage anxiety:

  • “Have fun! On average, children laugh 300 times a day, whereas an adult generally laughs only 17 times per day. Often as attorneys, we over-prioritize our work and under-prioritize play, even to the point of ‘stresslaxing’ where we worry about what we ‘should be’ doing when we are trying to have fun. Consciously set aside time to do activities that bring you fulfillment and joy and make you laugh! Channel your inner child and do the things that brought you joy when you were younger—have a water balloon fight, go to an amusement park, play in the mud. Whatever the activity may be, give yourself permission to relax and play and just be in the moment. Laughter is medicine!”

They are so right! And I LOVE the term “stresslaxing.”

I’m terrible at practicing what I preach.  At countless CLEs and in numerous blog posts, I’ve urged legal professionals to consider not just time away from work, but time that they’re fully away from work.  For example, setting and honoring boundaries, or, making sure that vacation includes a vacation from devices.  Alas, not only do I rarely take time off, when I do, I reflexively, or perhaps compulsively, respond to work matters that, in a vacuum, I know can wait until I’m back. 

Why?  Because I constantly worry that I should be available and responding.  That’s stresslaxing. It’s not good and I know I’m not alone.

Instead, all of us should heed Cynthia and Becky’s advice:

Don’t stresslax! 

When making time for something outside the law, fully commit to enjoying it!  It is perfectly okay to do so and it is exactly what you are supposed to be doing when you’re there. Also, for you supervisors, strive to ensure that your employees know that it’s not only okay to be fully away, it’s healthy and it’s expected.

Previous Wellness Wednesday Posts

It’s healthy for legal employers to value employees as people.

Michael 1 Comment

In 2018, the Vermont Commission on the Well-Being of the Legal Profession published its State Action Plan.  As I blogged here and here, I’m a big fan of the recommendations made by the Commission’s Legal Employers Committee.  Among other things, the Committee stated:

  • “Legal employers, meaning all entities that employ lawyers, paralegals and legal assistants, can play a pivotal role in promoting and maintaining lawyer well-being.”

I agree 100%.  Which is one of the reasons that I’ve incorporated wellness and referred to the Committee’s recommendations for legal employers at nearly every CLE I’ve presented so far this month.  I will continue to do so, that’s how much of a fan I am of the Committee’s work.

Today, however, I’m here to share a new tip for legal employers: the more you value your employees as people instead of as revenue producers, the better for their well-being.

Says who?

Experts who asked the employees.  That’s who.

In 2020, the California Law Association (CLA) and the District of Columbia Bar Association (DC Bar) agreed to participate in a research project to study issues related to lawyers and their behavioral health.  Last Friday, the CLA announced the project’s most recent findings.  The findings are based on “research [that] examined the relationship between what lawyers think their employers value most about them, and the mental and physical health of those lawyers.”

To me, the key findings are both unsurprising and eye-opening.

As summarized by the CLA, the study

  • “found that lawyers who felt most valued for their professional talent/skill or overall human worth had the best mental and physical health. Lawyers who felt most valued for their billable hours, productivity, and responsiveness were a distant second in mental and physical health. Lawyers who did not feel valued by their employers or did not receive enough feedback to know what their employers value about them fared the worst in terms of mental and physical health. In addition, lawyers who felt most valued for their professional talent/skill or overall human worth were much less likely to report they were considering leaving the profession.”

Imagine that! Valuing your employees for their “human” worth is better for their well-being than valuing them as revenue-producers or not showing them that you value them at all!

(The findings appear in a report by the researchers that was originally published in Behavioral Sciences.1)

The researchers surveyed thousands of members of the CLA and DC Bar. Based on their responses, lawyers were broken into three groups.  Those groups, and each group’s percentage of the total were:

  • Feel valued for their talent, skill, humanity:                               62%
  • Feel valued for their productivity & financial worth:                28%
  • Don’t feel valued or receive no feedback as to value:                10%

And here’s how the researchers ranked each group’s behavioral health and risk of attrition from the profession:

  • Feel valued for their talent, skill, humanity:                               Best health, lowest risk
  • Feel valued for their productivity & financial worth:                Worse health, higher risk
  • Don’t feel valued or receive no feedback as to value:                Worst health, highest risk

For more details, check out this infographic.

According to the CLA, the “key takeaways for legal employers” are:

  • “Employers who can make their lawyers feel more valued for their skill or humanity may be able to improve lawyer well-being, reduce healthcare costs, and mitigate unwanted turnover.
  • Providing clear and regular feedback may reduce stress and improve mental health.
  • By targeting and seeking to improve maladaptive behaviors in their workplace, employers may be able to improve the stress levels and mental health of their lawyers.”

In other words, when employers make people feel valued as people, the people are healthier and less likely to leave. And while I’m no expert, my guess is that healthier employees who aren’t looking to leave make for better business.

Here’s to making people feel like people.

For additional tips on how to create a healthy work environment, check out the ABA Well-Being Toolkit for Lawyers and Legal Employers or, my favorite, the ABA Well-Being Toolkit in a Nutshell.

Wellness

1 Last year, and as part 1 of the same project that’s the subject of today’s post, the researchers released Stress, Drink, Leave: an examination of gender-specific risk factors that their findings on the factors that drive lawyers from the practice. As Bloomberg Law noted upon its release, the first report concluded that women were at a higher risk of leaving the profession for behavioral health reasons than men.

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R.I.P. Cheslie Kryst – may your tragic story spur us to continue to help others.

Michael 6 Comments

This post deals with suicide.  It is devastatingly sad.

Here is a picture of Attorney Cheslie Kryst:

Cheslie

Attorney Kryst first made national news in May 2019 when she was crowned Miss USA.  At the time, she was in private practice in North Carolina.  I referenced the achievement in Question 5 of this #fiveforfriday legal ethics quiz, also noting Attorney Kryst’s pro bono work.

A few months later, Attorney Kryst’s firm announced her role in securing a sentence reduction for a pro bono client who had been sentenced to life in prison. Later that year, Insider noted that Attorney Kryst was far more than the stereotypical pageant winner, using her podium as Miss USA to advocate for social justice and changes to laws that resulted in long prison sentences for relatively low-level drug possession.

Upon leaving private practice, Cheslie started White Collar Glam, a site dedicated to assisting others to find “appropriate, affordable, professional clothing.”  The project was inspired by Cheslie’s experience during a mock trial competition. Then, in 2020 and 2021, Cheslie received Emmy nominations for her work as reporter for Extra.

Cheslie died on Sunday.

As reported by many outlets, including the Charlotte Observer, the Washington Post, and CNN, Cheslie jumped from the Manhattan building in which she lived.

Cheslie was 30 years old.

This is the third post in which I’ve referenced suicide and the legal profession.  That’s three too many.

In the first, 108, I shared statistics that suggest that 108 Vermont lawyers with active licenses had serious thoughts of suicide in the previous year.  In the next, Enough, I linked to the heartbreaking story of Gabe MacConnail and Joanna Litt, and urged us all to check in with others who we know are struggling.

We must continue the effort.  We must work to ensure that everyone knows:

  • It’s okay not to be okay.
  • It’s okay to ask for help.
  • Help is available.

May our efforts help to prevent a fourth blog post.

May Cheslie rest in peace.

********

If you need help:

********

If you want to help others but don’t know how, start with my post Ask the Question.

********

Previous Wellness Wednesday Posts

 Aiming for Well-Being

Civility Matters. Especially now.

Michael 4 Comments

I consider civility one of the 7 Cs of Professional Responsibility & Legal Ethics.  In my opinion, conducting one’s practice in a civil manner is not inconsistent with the obligations imposed by the Rules of Professional Conduct.

A seminar at the VBA’s 2019 Midyear Meeting made me realize the connection between civility & wellness.  In this blog posted the morning after the seminar, I wrote:

Indeed, nothing in the rules is incompatible with civility.  As a comment to Rule 1.3 says:

 “[t]he lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved with courtesy and respect.”

Courtesy and respect.  We need more of each in the air.

For the duration of public health crisis, we need even more of each in the air.

My first post related to COVID-19 was on March 13.  In it, I urged “all lawyers to be accommodating when considering requests from opposing counsel that are related to COVID-19.”  I’m by far from the only one, with bar associations and courts making the same request.  The good news? I’ve not heard any Vermont stories like the two I’m about to share.  Let’s hope it remains that way.

Each story comes from the same federal court in South Florida.  The ABA Journal covered both.

In the first, also reported by Law360 , a federal magistrate had to intervene in a discovery dispute.  Here’s part of the magistrate’s order.

  • “If all the issues we are currently facing were to be organized on a ladder of importance, this deposition-scheduling dispute would not even reach the bottom rung of a 10-rung ladder. It is painfully obvious that counsel for both sides failed to keep their comparatively unimportant dispute in perspective. Would the world end if the corporate deposition did not occur next week? Obviously not.”

The rest of the order doesn’t reflect any better on the lawyer’s involved.

A few days later, the same magistrate issued an order in a different case. I’m not a fan of block quotes, but this order is better read than described.  As reproduced by the SDFLA Blog:

“Given the global COVID-19 pandemic, it is hardly surprising that Plaintiff filed a motion to extend the mediation and discovery deadlines and all related deadlines and to reschedule the special set trial date.

Plaintiff’s motion represents that Defendant objected to the request. That’s right. Defendant objected to what appears to be a realistic and common sense motion to reschedule the trial and other deadlines. I had to read the certification twice in order to make sure that I was reading it correctly. 

If the motion is correct, then Defendant wants to push forward with the existing trial date and all trial-related deadlines even though no one has any idea when the Court will be able to safely resume jury trials (or when it will be safe to travel by air, to return to work or to get closer than ten feet to anyone).

Rather than guess at defense counsel’s motivation, the Undersigned requires defense counsel to by March 26, 2020 file a double-spaced memorandum explaining (1) whether he did, in fact, oppose the motion to reschedule the trial and enlarge trial-related deadlines and the mediation deadline, and (2) all the reasons justifying his opposition (assuming that he did actually advise Plaintiff’s counsel that he opposes the motion).

If defense counsel opposed the motion, then he is best advised to provide a comprehensive and rational explanation. Before filing this response, though, defense counsel may want to brush up on the concepts of karma, goodwill, grace, compassion, equity, charity, flexibility, respect, spirituality, selflessness, kindness, public spirit, social conscience, and empathy.

No reply absent further Court Order. Signed by Magistrate Judge Jonathan Goodman on 3/25/2020.”

Again, I’ve not heard any Vermont stories on par with these.  Still, I blog as a reminder that there’s a line between acting reasonably to provide clients with competent & diligent representation and using the public health crisis to gain an advantage.

Where is that line?

I don’t know.

But, in searching for it, we could fare worse than to be guided by Judge Goodman’s words.  Whatever we do, let’s not forget “the concepts of karma, goodwill, grace, compassion, equity, charity, flexibility, respect, spirituality, selflessness, kindness, public spirit, social conscience, and empathy.”

That’s civility.  And civility is part of wellness.

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