STRESS-SAVERS
No, this is not another tome on why and how lawyers should meditate. I’ve tried that off and on, with little success. I guess I’m just not cut out for enlightenment.
But I do realize that practicing law can be quite stressful. And with the holidays coming up, it’s not going to get any easier.
Here are some tips on what I’ve learned––the hard way––about how to reduce lawyer’s stress in the first place, by not putting yourself into a pickle that drives you nuts.
Don’t paint yourself into a stressful corner.
When faced with a choice about a procedural requirement, pick the conservative alternative––the one least likely to lead to problems.
I practice appellate law. The trigger point for beginning an appeal is the filing of a notice of appeal. There are strict time limits for doing this––usually within 60 days of the judgment or order you are appealing from (30 days in federal court).
Whatever that date is, it’s a drop dead deadline. If you don’t file the notice by that date, your appeal is dead––forever. No excuses, no extensions, no CCP § 473 motion for relief from forfeiture, no my-dog-ate-the-notice, nothing.
As you might expect, there’s been a multitude of fights about when exactly the 60 days expired. How do you count the days? Which order was appealable? Was the notice drafted correctly? Reams of reported cases deal with these issues. And the treatises on California appellate practice devote many pages to this.
Being somewhat of an appellate maven, you’d expect me to know a lot about these details, right? Not right. I have a passing familiarity with them, and I know where to look it if the issue arises. But no, I’m not a walking encyclopedia on deadlines, etc. Why? Because it almost never arises in my cases.
And why is that? Because fighting about those issues would cause me stress. Even thinking about the possibility of fighting over those issues would cause me stress. So here’s how I set things up to avoid the fights:
- When I have even the slightest doubt regarding whether an order or judgment is appealable, I assume it is appealable––and I make sure that a notice of appeal from that order is filed within 60 days of the issuance of that order. (Actually, the law provides that the notice of entry of the order starts the 60 days running. I pay no attention to that law. I want no fight over when the notice of entry was served, whether it was served correctly, etc. I always go with the earliest possible trigger––which is the entry of the order or judgment itself.)
- I have the notice of appeal filed well before the 60-day deadline––at least two weeks before.
- I have the notice of appeal drafted to cover every order or judgment that might possibly be appealable. If it turns out that some of those are not appealable, I’m guilty of being over-inclusive. So what? No one cares. The worst that can happen is the appellate court dismisses the purported appeals from those unappealable orders. Big deal.
As the reported cases show, many lawyers do not take these precautions––and they end up in big fights––fights that are not even about the merits of an appeal. And they lose some of these fights, meaning they lost their appeals before they even start. And then? A very unhappy client, who will take his business elsewhere in the future––and might even consider a legal malpractice action.
Just imagining that scenario happening to me would make it hard to sleep at night. So I don’t think about it––because I don’t let things get even close to that.
Trial court lawyers can take a similar approach. File stuff early. File it correctly, and don’t fear being over-inclusive. When in doubt––even the slightest doubt––take the most conservative path. Believe me, you’ll get fewer ulcers.
Get an early start.
In my appellate work, I’m used to opposing counsel filing their briefs on the last due day––sometimes the last minute of the last day. And when the Rules of Court allow a 15-day “grace period” before something awful happens––like dismissal of an appeal––many lawyers take advantage of this. And, you guessed it, they don’t file until the end of the 15th day.
Talk about stress. I can only imagine what’s going in their offices––and in their heads.
- “No time for lunch––we’re on a deadline!”
- “You need to stay late tonight. Type up that table of authorities right now!”
- “I’m not sure these citations are right, but I’ve got no time to check them.”
Who needs it? Not me. I don’t think I’ve ever suffered through such a stressful scenario.
I start early. Often I’ll start work on an opening brief before the notice of appeal is even filed. Why not––if I happen to have the time?
I rarely ask for an extension. Sometimes I do ask, as a precaution in an especially large case. But I seldom use all of it. Almost every lawyer I’ve faced does the opposite. Their first request for extension is virtually automatic, and multiple extensions are not unusual.
And at the other end, I plan to file the brief well before whatever deadline the court has set. At least a week before.
It doesn’t always go smoothly. The unexpected occasionally happens. We discover a new issue, my paralegal gets sick, etc. But usually I’ve built enough extra time into the schedule to allow for those things. If not, I will ask for an extension. It’s usually my first request, so I’ll have no trouble getting it.
So don’t put things off. Start early, then have a beer and relax.
Avoid stress-inducing people.
This is the tough one––at least for me.
Let’s break it down into types of people you’re likely to run into when practicing law.
Clerks and Judges
If you litigate, you can’t avoid these people. You must file your complaint with a clerk at the Superior Court filing window. You must appear before a judge.
Some clerks love to lord it over a lawyer whose income (she thinks) dwarfs the clerk’s paltry salary. Some judges enjoy being particularly aggressive with counsel.
You might have a choice––though a limited one. If you know that one of the clerks is particularly officious and nasty, stand in another line. If you know your assigned judge might be especially stressful, consider using your single peremptory challenge.
Otherwise, you can lower the stress level if you keep one thing in mind: it’s not about you. These people have a problem with lawyers, not with you in particular. It’s still annoying, but don’t think you’ve done something wrong.
And don’t fight back on a personal level. That just provokes the bear. Respond politely and move on.
Clients
You’ve probably already heard of the danger signs. A client who hasn’t gotten along with several prior counsel probably won’t get along with you––no matter how charming they seem at your first meeting.
But even when you’re his first lawyer, you can get sucked into what turns out to be a very stressful relationship.
The stress often arises over money. Be sure to get a security deposit, up front, large enough to assure yourself that you won’t need to chase after the client later on. Don’t worry that your number will scare him off. If it does, you’re probably better off––stress-wise.
Make sure that your retainer agreement provides that you do not guarantee victory––or any particular outcome.
If you take a case on a contingency, find out at your first meeting whether the client is amenable to a reasonable settlement, or whether he is the bull-headed type (“I’m right! Why should I get less than what he owes me?”) You don’t want to fight with him about this later on.
Opposing Counsel
You don’t have any say about whom the opposing party selects to represent them, so you’re stuck with it.
Most opposing counsel are courteous and easy to get along with. But once in a while you’ll get a nasty jerk who will fight every minor procedural motion. And when you bring up a possible settlement, he laughs at your opening bid and trashes your case.
Don’t get sucked into that kind of pitching match. Without a fuss, just give him the continuances he requests, and calmly explain the weaknesses in his case. He might be so surprised that he begins to respond in kind. If he doesn’t, you might find a way to use this against him in court.
Co-Counsel
It’s surprising, but this is often the most stressful relationship.
Co-counsel comes into your case in various ways. They might represent a closely-related party. They might have represented your client in a related proceeding. Or maybe the client just decided that both of you should co-represent him in the same case.
Stress with co-counsel often arises over control. When you want to do something this way, and your co-counsel wants to do it another way, who calls the shot?
Ideally, you work it out, with each lawyer deferring to the other’s greater expertise and experience on the particular issue.
But I’ve seen co-counsel simply pull a power play: “She’s my client, and the client will call it the way I tell her to call it.” If you see this coming at the outset, you might reduce the stress by walking away. You’ll give up a few bucks, but it might be worth it.
Short of that, you might call the client and explain the problem. That’s not easy either, and it can lead to a breakdown in the co-counsel relationship. But sometimes your duty to do the best job for the client. If you think your co-counsel’s approach jeopardizes the client’s case, you really have no choice.
So enjoy the holidays. Follow these tips, then lie back, sip your brew, and calmly watch your fellow attorneys running around like rabbits with fur afire.