I ended the first column on this web site last August with a statement that I would next write about “happiness, living a balanced life and legal practice”. However, my comments in the same column about the Morse case Judgments in the Supreme Court took on something of a life of their own, leading to comments (for and against) from others, media comment suggesting that it was somehow brave to put one’s head up above the parapet if you are a practising barrister and then, more recently, a television programme (Court Report) and further comments, both public and private including a wonderful and welcome comment on the Court Report Facebook page from one reviewer that he won’t be coming to me “when” – note “when”, not “if” - he gets into trouble!
It has also been suggested to me – by two Queen’s Counsel, a Judge and other lawyers - that I have failed to keep my promise to reveal the secrets of happiness and a balanced life. So at this point I am only too pleased to pull my head back down below the parapet, cease writing about Court Judgments and say something instead on a far more important topic.
It is in the nature of legal practice that it inevitably involves hard work, considerable skill at times and at least from time to time long hours. Over the period that I have practised the demands of civil litigation have become much greater, partly because of the greater complexity of transactions that give rise to litigation but largely as a result of the huge increase in the volume of paper that is generated (discovered material and the required filing of written statements of evidence and submissions in accordance with time-tables).
It is evident too that the demands made of law firms of the lawyers that they employ (including in that term the partners who own the firms) has grown exponentially. This is driven to a substantial extent by the profit motive and the accompanying transition from law firms as professional practices to commercial businesses. I recall shortly before I left my partnership at Russell McVeagh 30 years ago one senior partner responding to a proposal that the fees earned by individual partners should be disclosed to the partnership as a whole by saying: “If you introduce that, you will change the partnership as we know it”. That proposal does look rather mild today alongside budgetary targets and partner performance reviews!
It is not my intention however to denigrate those changes but just to point them out as being a major component of the greater stresses that lawyers in legal practice face today. Not only does the achievement of higher and higher budgetary targets require correspondingly longer hours of work but a culture can all too easily develop where working hard for its own sake becomes the measure by which lawyers are judged. And in an institution where both promotion to partnership and retention in partnership are fiercely competitive, the lawyer who appears to slack by leaving early or arriving late, whether to be with family or to undertake some other pursuit, may be seriously disadvantaged within the firm.
It has to be said that many lawyers thrive on hard work and enjoy nothing more than the challenge of preparing difficult cases. I might even include myself in that description. However – and this is the critical point – if that becomes a never-ceasing, dominant feature of one’s life, there is a real danger of ultimate burn out, apart from any other detrimental effects on the quality of that life along the way. The fact that there are so few partners in law firms over the age of 60 is a pretty good indication of the fact that the working environment of those firms is too tough or that the wisdom that experience gives (all other things being equal) is not valued as much as it used to be.
It would be fair to say too that the growth of the independent Bar in part represents the burn out factor or in some cases is the result of partners being eased out because they can no longer meet the ever increasing revenue performance levels imposed on them or are simply unwilling to continue to make the personal sacrifices to do so. It is a fact that most lawyers leaving their firms and going to the separate Bar, once adjusting to the wholly different style of legal practice, find it a revelation and literally obtain a new lease on life.
That is not to say that practice at the separate Bar cannot have its own stresses. Anxiety about where the next brief is coming from – seldom a concern in a law firm with a solid client base – can, if that anxiety is well-founded, lead to financial difficulties and ultimately a loss of self-worth as a lawyer. Generally though, the great majority of barristers do find a niche in which they feel comfortable and come to enjoy the more relaxed form of practice that the separate Bar provides.
But, whether practising as a barrister sole or as a barrister and solicitor (in a firm or not), the need for a balanced life style is paramount. Only in that way will a lawyer avoid burn out or just plainly becoming a dull person unable to relate to non-lawyers who, after all, comprise a far larger segment of society than the legal profession (and the Judiciary). My comments apply (though of course with respect) to Judges also who are just as prone (maybe more so) to being seduced into thinking that all there is in life is their own work.
All very well, you may say, but what is a balanced life style?
There is of course no simple answer to that question beyond making the obvious – but vital – point that there must be something other than work in one’s life for it to be possible to have a balance.
The first and most obvious non-work source of provision of a balanced life is family. The paradox here though is that there is a direct and necessary link between work and family. The parent or parents must of necessity work in order to provide for themselves and for their children if they have them. And the more that is earned by their labours the more material benefits they will have by which to enjoy a higher standard of living. A better house or car(s), a holiday home, private school and University education for the children, overseas holidays and so forth.
But of course that can all become self-defeating if the longer hours that are spent at work to earn more money to provide a higher standard of living lead to the breakdown of relationships within the family. So there has to be a balance between work and family requirements. Easier said than done.
I also believe that it is important too that the lawyer (and for that matter the lawyer’s spouse and indeed all of us) have an interest in something or an activity of a kind that used to be called a hobby that during the times that it is being pursued blocks out the demands of work and provides a respite from the stress of work.
There is always the danger though that a hobby will become so consuming that it creates its own stresses and therefore ceases to provide the enjoyment and relaxation that is should. Twenty years ago, I took up yacht racing and established GEORGIA RACING (www.georgia-racing.co.nz) as a means of pursuing an activity in an arena far from legal practice that would take me regularly away from the narrow world of litigation. Building and racing yachts has done that for me but natural competitiveness has led me into a world that has its own intensity and stresses – high performance international Grand Prix racing and, since 2003 after New Zealand lost the America’s Cup, America’s Cup campaigns as a director of Team New Zealand.
When I pause to think about my yacht racing activities, I think I do have to say that, while I enjoy them, they do not in fact provide a release from stress. Rather the stresses are still there but just in another form. As with litigation, winning provides great satisfaction and losing great disappointment. Seeking a (hopefully) favourable outcome in both cases involves hard work. One great benefit though from my work in the yachting world is that it does provide a different perspective and a different cross-section of people with whom one comes in contact from the lawyers, Judges and clients that I encounter in legal practice. Not better, but different and therefore expanding one’s working environment.
It is interesting – and should be of concern - that corporate clients in the United States (and possibly elsewhere) are increasingly voicing concerns about lawyers who have become over-specialised and who, while having unrivalled knowledge about the content of the Law, are often failing in the judgment that needs to be made to deal in the most effective way with a particular legal problem. The complaint seems to be that increasingly lawyers lack the degree of worldly wisdom that comes from being active in the wider community and who therefore can apply the law with common sense and who can formulate appropriate and sound strategies.
So work experience outside a narrow, technical, area of legal specialisation is important. Experience of dealing and mixing with people outside the relatively cloistered world of the Law is also important for one’s ultimate effectiveness as a practising lawyer.
That still leaves the question of the provision of balance in the form of recreation. I do not play golf but I suspect that most of those who do enjoy it precisely because it is a purely recreational activity (I exclude professional golfers and golf club office-holders from that observation). The same is true of fishing. I still recall from the time that I studied and worked in England seeing people sitting in a folding chair with a thermos along the banks of the River Cam for hours on end, apparently doing nothing much (I never saw a fish actually being reeled in) but clearly at peace with the world.
Other suggestions that I have are gardening, cooking and classic car restorations. For myself, I very much enjoy viewing a lovely garden but, ever since I had a gardening job when a poor University student, have no interest in doing it myself. Once again though, I remember the allotments in England where people who had no space for a garden at their terraced houses happily spent their weekends pottering at their allocated space at the allotments on the outskirts of the town or village. I also enjoy eating but not cooking. However, the current popularity of TV Master Chef programmes is a good indication that many people have a love for cooking special dishes (and, presumably, eating them). Classic car restorations is a useful way of spending time (and, unfortunately, money) if you love cars. And, as someone once said to me: “Prices of classic cars can go down as well as up, like the share market, but, unlike shares you can always drive the car.”
Whether recreational or not, physical exercise is also a necessary ingredient of a balanced life style. Necessary because, in my view at least, it is not possible to survive in the hothouse of legal practice unless one is exercising regularly and is physically fit. That raises the perennial problem of how to fit it into a busy schedule where the immediate demands of clients and courts always seem to take priority. My recipe for that is to run first thing every day before the day takes over. Others will stop at the gymnasium on the way to work. Confining such activities to the weekend is not likely to be enough. If exercise is routine and invariable, it will create its own priority. At the risk of sounding like a zealot, may I say that if exercise does not become an article of faith in the lawyer’s life, their effectiveness as a lawyer will suffer and the danger of debilitating illness or impairment will be that much the greater.
One feature of many law firms, particularly the larger ones, is that they have provision for sabbatical leave – not intended, I think, for academic study and refreshment, which is the traditional justification for the equivalent Judicial schemes – but for extended holiday. Extremely commendable. However, it is sad to see many lawyers finding themselves “too busy” to take full advantage of their sabbatical entitlements. I am as guilty as them in this respect. Some 10 or 11 years ago, I gave myself a sabbatical and spent 3 months in England, some of it with my then 80 year old father who had never been to England, although fighting in North Africa and Europe in the Second World War. So enjoyable was that time that I vowed to repeat the experience every 2 or 3 years. Regrettably, that has not happened. I think that, as with any holiday, lawyers need to plan at least a year ahead and to write the time, irrevocably, out of their diaries before it is taken up with fixtures and other legal commitments.
Pausing at this point, it occurs to me that what I have written so far is all very obvious and hardly insightful. However, it has also been therapeutic. If it encourages any lawyer who reads this to pause also and question what are the sources of balance in his or her life and do they need review and adjustment, then that will be to the good.