When I first wrote on a balanced life style in this column (9 February 2012), I was surprised at the positive reaction from many lawyers for whom it was clearly a matter of great interest and importance. That encouraged me to come back to the topic 18 months later (15 August 2013) in the context of reviewing a biography of Michael Kirby (“Michael Kirby, Law, Love and Life” by Daryl Dellora). More recently, I was invited by the organisers of this year’s Criminal Bar Association Conference (held in Auckland 1-2 August 2015) to speak on the subject along with Helen Bowen, a barrister, and Jo Soldan, a clinical psychologist, both of whom have been at the forefront of researching and devising practical techniques for coping with stress.
I was impressed by the Criminal Bar’s Conference – 300 attendees and very interesting sessions. The keynote speaker was Judge Billy Murphy, a criminal attorney from the United States. I italicise “Judge” because it seems to be a feature of US legal systems that Judges who resign and go back to the Bar continue to use the term. While I was in the United States on my very recent road trip (see further below), I followed a regular TV programme where a former woman Judge, using the title, commented on current political and legal events. Murphy was also the after-dinner speaker on the Saturday evening and, as American trial lawyers tend to be, was highly entertaining. Another session that I enjoyed very much was Jonathan Krebs account of the Teina Pora saga. One has to wonder how Pora could have served 21 years in gaol when there was a complete absence of objective, reliable, evidence that established his presence at the scene of the murder and when there was such an obvious probable offender in the form of the proven rapist Malcolm Rewa.
However, back to living a balanced life style. The invitation that I received to speak necessarily made me think more deeply about the factors that make this such an important matter for lawyers. The answer is the need to cope with stress, which if uncontrolled, can so easily lead to depression and worse. A psychiatrist recently told me that 40% of his patients who are suffering depression are lawyers. It was also claimed in the seminar that in the United States lawyers are at the top of professions where suicide is committed, though some studies continue to give dentists that doubtful distinction. (What is it that we have in common with dentists?)
What then is the source of stress for lawyers? I identified the following:
(1) Client problems that we are engaged to solve. Clients who face the possibility of imprisonment, bankruptcy or other adverse personal or financial consequences of litigation in which they are participants will themselves be heavily stressed and look to us to avoid those consequences. It is inevitable that lawyers will to a greater or lesser extent shoulder the client’s stress and it will become part of their own.
(2) The adversary system. Litigation lawyers, at least, work in a combative environment. They seek to best their opponents in a competitive, win-lose, situation. They have to deal with opposing counsel who will seek to expose every weakness and they may have to deal with an unsympathetic Judge who may test their arguments in a manner that borders on the incredulous in circumstances where they must always be respectful back, no matter what.
(3) Overwork. This has a number of causes: the increased complexity of litigation; the far greater requirements of reducing evidence and submissions to writing before the trial; case management demands; the fact that the fees for a case are largely determined by the number of hours worked (which encourages a leave-no-stone-unturned approach); in law firms, the need to meet budgets.
All of this and in particular the long hours worked by lawyers can lead to early career burnout with lawyers either giving up the practice of law altogether or going to a more comfortable, in-house corporate salaried job. The other refuge for lawyers who have found the law firm environment unpalatable is of course the independent Bar. Practising at the separate Bar is a revelation for such lawyers but it also creates another source of stress – namely, worry about where the next brief is coming from without the client base of a law firm, a concern that can readily translate into financial worries. There is also the stress created by the need to establish a reputation as a barrister, as distinct from being a lawyer in a firm that has its own, branded reputation.
The thesis that is espoused therefore is that a balanced life style – having other interests and participating in activities outside the law – will not only relieve the stress that our legal jobs create but also put our whole legal careers into perspective. There is a tendency for the importance of our position as lawyers to become inflated – a tendency from which (with respect) Judges are not immune. Spending time away from the Courts and from our offices and Chambers is at least a partial antidote from that as even a holiday will demonstrate.
More than that, having other non-legal interests and participating in activities in the wider community will also make us better lawyers. Corporate clients in the United States have begun to express a preference for the judgements exercised by well-rounded lawyers with a broader experience of life over the legally correct but technical advice that they receive from over-specialised legal technocrats. The view is that the former are more likely to give sounder strategic advice that will bear a closer relationship to common sense and to the client’s objectives.
Specifically then what should a lawyer who wishes to act on the balanced life style message look to do? At the Criminal Bar Conference, I identified 4 areas for discussion: family, hobbies, physical fitness and holiday/sabbaticals.
As to family, there is a tension between being at work and in particular working long hours and spending time with the family. Ironically, the harder and longer that a lawyer works the more he or she will be able to provide for the family by way of increased standard of living but overdoing that may damage family relationships and end up in relationship breakdowns.
Hobbies is an old-fashioned word that can include stamp collections and the like and also other everyday activities such as cooking, gardening, fishing etc. Some hobbies can however become all-consuming and, far from acting as a relief from stress, can add to it. In my case, I expanded my occasional dinghy sailing to serious yacht racing and over the past 20 years have built 5 specialist keel boat race yachts ranging from 36 to 53 feet. I have shipped some of those boats to premium regattas around the world (Europe, America, Hong Kong, Hawaii and Australia) and have sailed with America’s Cup sailors. I also participated in the America’s Cup world for 10 years as a director of Team New Zealand and as a member of America’s Cup Race Management. I acted as an advocate for Team New Zealand at Valencia in 2007 in America’s Cup Jury hearings. I met many people in the sailing world, hardly any of whom were lawyers. All of that was enormously interesting and certainly took me outside the legal world and gave me a different perspective on things. But one thing it did not do was provide an escape from stress. The organisation involved in participating in regattas for my own boat had its own stresses. Being a director of Team New Zealand became over time extremely stressful to the point where I was happy not to continue after San Francisco in a corporate and team environment that had become dysfunctional. So, adding another stressful career on to one that has its own challenges is not recommended!
Turning to physical fitness, I am very much of the view that it is not possible to have a life-long career as a lawyer and as a litigation lawyer in particular without having a programme of physical exercise that takes absolute priority over work. That should, ideally, be daily. A Sunday stroll in the park – and, in my view at least, even walking to work every day – is nowhere near enough. It must be a form of exercise (running, cycling, swimming, gym) that requires real effort and that tests the body. Priority is best achieved by undertaking the exercise first thing in the morning so that the job is done before the workday takes over.
The need for physical fitness (and with that the ability to sustain mental effort) is no more apparent than in the case of a long trial which, arbitrarily, I define as a trial that lasts 4 weeks or more. Allied with that is the need to pace oneself over the period of the trial and the pre-trial preparation time. I have seen lawyers who literally work through the night at the inception of a long trial and by the end of the first week, if not earlier, are exhausted and whose performance for the balance of the hearing trails off noticeably. One thing I learned from my early middle distance competitive running days was that the key to a fast time overall was even pace running. Running a marathon by starting at a sprint speed for the first mile is not conducive to finishing.
At the Conference, I referred to the Equiticorp trial some 20 years ago which ran for 13 months. In that case, we had a large legal team (6 counsel in Court, including 3 QCs and another 6 younger lawyers outside the courtroom). From the outset, I laid down some rules that were designed to ensure that we all worked harmoniously and were able to stay the distance. First, it was made clear that unreasonable work demands were not to be placed on any individual. Secondly, depending on the length of the trial, every lawyer was to take a break from the case from time to time even though it was still running. (In my case, my break coincided with a bout of bronchitis.) Thirdly, I employed a clinical psychologist to advise the legal team and to meet both collectively and individually with us during the trial. This last factor, in my view, was a key component to the team remaining functional at all times with any incipient personal problems being able to be identified and dealt with at an early stage.
We all take and look forward to holidays but in my view mid-year one, in the depths of winter, is just as important as the family one at Christmas. It is however much more difficult to organise because the courts are operating at full pace and it therefore requires long-term planning to ensure that it does not clash with fixtures. I have to confess to having been very unsuccessful over the years in achieving a decent break in the middle of the year. The diary simply has to be blocked out and then all attempts by Judges to plonk a fixture in the middle of that period resisted. Judges themselves get very generous holidays including a winter break and, with respect, they should if at all possible accommodate counsel’s similar need for a break. The English terms system which applies to the High Court and Court of Appeal has much to commend it and, if adopted here, would mean that Judges and counsel could have their breaks at the same time. (Terms in England for 2016 are: 11 January-23 March; 5 April-27 May; 7 June-29 July; 3 October-21 December).
Judges also have sabbatical leave, being a longer period of time intended for a Judge to have academic refreshment by spending say 3-6 months at an overseas University with the opportunity to look at Law in the round and to study its development other than through the narrow confines of the facts of particular cases that come before them. Practising lawyers also benefit by taking time to reflect on the bigger picture by attending conferences and reading landmark decisions and academic articles when they can.
As an example, I read last week the recent Judgment of Justice Paul Heath in the case of Arthur Taylor v. Attorney General and the Chief Executive of the Department of Corrections  NZHC 1706 (Judgment 24 July 2015) which, in my view, deserves the appellation of a landmark decision and an important one in our constitutional system. Arthur Taylor is a prisoner, often described as a career criminal, who has made a real contribution to constitutional law in this country by taking proceedings himself in the High Court in important aspects of human rights. He successfully brought proceedings, most recently, against prison regulations which unreasonably prohibited smoking in any circumstances in prisons. In the case before Heath J, he argued (in person) that recent electoral legislation that took away the right to vote from all prisoners was contrary to the Bill of Rights Act. Heath J agreed and then, most importantly, took the unprecedented step of making a declaration to that effect, notwithstanding of course that the electoral statute remains fully in force.
The value of that declaration however should not be under-estimated. It amounts to an authoritative statement from a senior High Court Judge that a statute is infringing important human and democratic rights. The Judgment deals with case law in New Zealand and abroad and with academic literature thoroughly and convincingly and one has to wonder why in previous cases our Judges have been so reticent about making a declaration of inconsistency particularly when, as Heath J points out, the Human Rights Tribunal has that power expressly under its enacting statute. It is refreshing and invigorating to read a Judgment like this before then returning to dealing with the minutiae of preparing the next case.
Returning to the concept of sabbatical leave, I do not suggest that undertaking academic study is the only way, or even for many necessarily the best way, of refreshing oneself from the grind of legal practice. The important part of such leave is to have a longer period than the customary 2 or 3 week holiday that will provide some distance from legal practice to enable it to be put back into perspective. Again, I have not been successful in taking such time out regularly and in fact have only done so twice in 35 years at the separate Bar. Both times have however been hugely rewarding in terms of recharging the professional batteries.
The first occasion was some 12 years ago when I did go back to Cambridge not to study formally but just to spend time in the library (a few hours a day only) undertaking a study of a relatively random topic – recent developments in US judicial reasoning and academic thinking about monopolisation in anti-trust law. To give the task some structure, I wrote a paper on the subject but with no intention of seeking to publish it (though I did subsequently speak on the topic at a conference).
Much encouraged by the personal satisfaction and benefits of that exercise, I resolved to take further sabbaticals every 2 to 3 years. That did not happen until this year when I took an extensive road trip in the United States in a Corvette bought for the purpose. Accompanied at different times by two of my sons, I drove some 7000 kilometres through California, Nevada, Arizona, Utah and New Mexico, much of it through spectacular desert country. A highlight was being buzzed by an F18 fighter jet in a canyon in Zion National Park. The sequel to that at the very end of the trip was a rare visit to the air training base north of San Diego where the pilots of these planes and their predecessors have been trained for years (flying from the air base into the desert) and where the famous Top Gun movie (with Tom Cruise) was filmed. Small boy stuff maybe but exciting even for old guys.
That trip also gave the opportunity for catching up with the bigger political events of the day and with reading. The problems of Greece became more immediate without the distraction of the day’s legal work and, finding in a second hand book shop John Maynard Keyne’s book containing his warning (correct) that making the Germans make reparation for the First World War would have detrimental effects on all countries in Europe brought a new slant on the hard line that (ironically) Germany was taking to Greece’s inability to repay its current debt. Interestingly, a few days after that analogy crossed my mind, the Greek Finance Minister made it himself publicly.
That leaves just Atticus Finch to say something about. Those who have read Harper Lee’s famous novel (loosely based on her own small town life in Southern Alabama) To Kill a Mocking Bird and published 55 years ago will immediately know that Atticus was a fictional lawyer who was renowned for his liberal stance in defending a black man who had been charged with the rape of a young white woman. So beloved was he by generations of Americans who read the book, which received the Pullitzer Prize, and who saw the 1962 movie in which Gregory Peck received an Academy Award for playing the part, that many new baby boys were named Atticus and many young people were motivated to become lawyers.
During the trip, I read in the New York Times of the fact that there was about to be published a companion work written by Harper Lee in the same period but never until now published called Go Set a Watchman. The book was immediately controversial because it appeared to demonstrate that Atticus was in reality racist and that Scout, his young daughter in Mockingbird, discovered this 20 years later when a young woman in Watchman. This had a strong public reaction. A woman who had called her now teenage son Atticus resolved to change his name (though the son himself was less enthusiastic). Lawyers who had been inspired by Atticus to study law were said to be considering changing their profession. One 19 year old girl who was intending to study law because of her admiration for Atticus had called her kitten Catticus Finch and, reportedly, was now “left heartbroken by the new character development”. “It’s so unfortunate”, she said, “all my English-major friends are making fun of me relentlessly”. Keep in mind that Atticus was a fictional person!
I immediately read both books in the evenings after a day’s driving. My take on Watchman was different. I had visited Birmingham Alabama several years ago to brief evidence and had been struck then by the fact that the relatively white Southerners that I met still appeared to see themselves as being distinct from the Yankees in the North. There was contemporary evidence of that also in the furore over the removal of the Confederate flag from its position on the State legislative building in South Carolina. My interpretation of Atticus’s position in Watchman was not that he was at heart racist but that as a Southerner he resented the intrusion from the North of the civil rights activists led by the National Association for the Advancement of Colored People (NAACP). In short, he believed that the advancement of the underprivileged position of Negroes (as they were then called) in the South was best handled by the South itself in a more gradual way. One can of course, in more contemporary times, quickly disagree with that view but for myself I do not doubt Atticus’ genuine belief in human rights.