In teaching professional responsibility, I stress that your word is inviolate; that we are officers of the court; and that we put the needs of others (our clients) ahead of our needs. Virtues, each and every one. Here’s yet another: learning how to take a punch. Knowing how to do so is integral to being an effective lawyer, and, incidentally, to living a fulfilled life, day to day.
No. 1: A Feint v. A Punch
The first is so much hot air; the second is a serious matter. Here’s the first: An opposing counsel at a prearbitration hearing, huffing and puffing, “don’t call so-and-so as a witness, I promise you’ll regret it.” I did and didn’t. He did not blow my house down.
No. 2: Punches happen. Live with it.
A punch makes contact and is solid. It causes you at times to wobble. It can be delivered fairly or unfairly. Yes, other lawyers deliver low blows, perhaps even violating the Rules of Professional Responsibility. (Live with it. This is the life we picked.) Don’t run crying to the judge asking for sanctions, bemoan your circumstances to your supervisory partner or complain to your bartender. (OK, I did all three but learned more-effective responses.) Accept that you will get your hair mussed up. To paraphrase the late Justice Antonin Scalia, judges can’t solve everyone’s problems. Instead, work toward a reputation among judges of “If Lola is making a big deal of opposing counsel’s conduct, then perhaps there is an issue to address.” Lesson: Don’t cry wolf!
No. 3: Turn the other cheek? Part I
Here is Jesus, “But if anyone strikes you on the right cheek, turn the other also.” Matthew 5:39. (Check out “Honoring the Spirit in the Law: A Lawyer’s Confession of Faith” by Melissa M. Weldon in the Fordham Urban Law Journal (1998) for an interesting discussion of this passage.)
Jesus taught that we must pause and consider an alternative to punching back. Here’s the scene: Me, in a long and grueling mediation in Tulsa. The opposing counsel invites me to step into a side room. I do and sit down. He then yells about my conduct toward him. (I later learned that the mediator was minutes away from dialing 911.) I held up my palms, the universal symbol of “I mean no harm,” apologized for any slight and let him exhaust himself à la Muhammad Ali and the rope-a-dope. Storm spent; matter resolved.
No. 4: Turn the other cheek, Part II
I am trying a retaliation case in Austin. Come break time, one of the opposing counsel charges over, flips a clipped file of documents at me and declares, “Tell me whether you will stipulate to admissibility before the judge gets back.” Flash to Viktor Frankl: “We can’t control others, only your reaction to others.”
“Don’t you ever throw anything at me again. Ever. If you hand me the docs like the professional I know you to be, I will tell you.”
To return to Weldon, “By telling us to turn the other cheek, Jesus is not telling us to avoid conflict. … He is encouraging us to face conflicts head-on and to resolve our disputes creatively in ways that allows us all to retain or regain our dignity.”
No. 5: When a judge throws a punch
It happens. Most judges are ethical, decent and hardworking. And some are, well, not. Different rules apply. As the ABA Model Rules explain, lawyers can’t and shouldn’t fight fire with fire. As a late Fifth Circuit judge remarked, lawyer vs. judge is an inherently unfair fight. So, what do you do? One and only one thing: Protect the Record. This was drilled into me as a new lawyer, and it’s now passed on to our law students. Unfair punch from judge? Make an objection; ask for a ruling; do not be cowed by the robes.
No. 6: Don’t flinch
The punch is on its way. The natural reaction is to look away. After all, this is going to hurt. Don’t. Flinching disorients you, leaves you unable to counterpunch and makes it more likely that you will get KO’d. As Van Morrison crooned in “Roll with the Punches:” “You got to roll with the punches / Yeah, you’ve got to go with the flow / Roll with the punches / That’s one thing I know.” Agreed. Do and be fine, don’t and get broken.
No. 7: Keep punching until the fight is over
Riddle me this: How can you get knocked down seven times but get up eight times?
I leave you with Shakespeare and the famous passage from “The Taming of the Shrew,” “Do as adversaries do in law, strive mightily but eat and drink as friends.” Perhaps, the best way to take any punch.