Fear Factor

Ray’s Blog – March 20 2010
The Fear Factor
Let’s start with the positive. I have had a great career as a lawyer. In truth, I have enjoyed several chapters, all of which were doing legal work, but totally different – from poverty law to fighting the government, to helping the environmental movement, to business law. Each has its own reward. I have made a living.
But I have to acknowledge there are darker sides to becoming a lawyer and practising law. No – not the usual Hollywood stuff of selling your soul to the devil or compromising your values.
The darker aspect which comes to mind today is anxiety and fear
– fear of making a mistake and fear of failure. I suspect this intrudes on people working in many professions and other jobs, but in my experience it is legend amongst lawyers and articling students.
My own experience is validated by an article with appeared in The American Bar Association's *ABA Journal* entitled "Law Practice Can Trigger Stress Disorder, Says Attorney Who Now Works as Therapist" by Martha Neil. From that article:
A sense of impending doom is a common feeling for many attorneys in practice:
From the mistake made when drafting a document or taking a deposition to a transgression that you may not even be aware of yet, there's always something lurking in your consciousness to produce a feeling of being "in trouble."
For him personally, writes Will Meyerhofer, a former BigLaw associate who now works as a psychotherapist, "it got to the point for me, at Sullivan & Cromwell, that I felt my entire body clench in preparation for attack just walking through the doors of 125 Broad Street and stepping into that elevator." His post, however, indicates that law practice, in general, rather than any particular law firm, is the cause of such stress.
Most people must contend with the stresses, competition and demands of our current work environment culture those problems. But lawyers may be in a league of their own when it comes to taking fear into the workplace and incorporating it into their daily activity (and nightmares).
The anxiety and fear of making an error may begin in law school. An old movie “The Paper Chase” illustrates how an illustrious but intimidating professor at Harvard destroyed the confidence of some of his students. We hear from some mentoring lawyers “Put their feet to the fire”. “Put the fear of God in them”. It seems nothing is good enough. No mistake can be too small. Every word counts. Every question in court is critical and if you miss one, you can never go back. Once the contract is signed, the litigation begins. And on and on.
Does law attract individuals who are susceptible to this catastrophic type of thinking or does it develop and grow over time? Do the more mature lawyers, the mentors, suffer from this type of thinking so normalize it and pass it on?
Lawyers are trained to analyze every situation to the benefit of their client and often this means taking advantage of every possible interpretation of the written word, and knowing that any set of facts or circumstances can be spun to achieve the best result for the client despite the intent of the participants or, in fact, “reality”. Knowing this, lawyers live in fear of other lawyers doing just that with their work. And of course, lawyers well appreciate the intolerable experience of being sued for making a mistake, having seen their clients suffer through it. Lawyers are well aware of the current philosophy and culture in US and also Canada that if on person has suffered, someone else is responsible and must pay.
We have insurance and that should help, but I am not sure that it does. Some lawyers may believe that if they worry, they will not make mistakes as though excessive worry is a worthy preventative measure. Their inner voice says: “I have always worried a lot, never been sued, so worrying must be effective.”
I am not sure if architects, accountants, dentists, doctors, business people, teachers, etc. suffer from this syndrome. What I do believe is that this type of extreme anxiety and fear detracts a lot from enjoyment of life and cannot be very productive. Recognizing and dealing with it is important. And this means more than just putting it in a compartment and coping. It is noteworthy how many lawyers use alcohol as a coping mechanism for the stress of practice.
I think that these issues are worthy of serious, open and honest discussion in a safe environment. Law firms have mentors for articling students (called Principals). Mentors are not born great and don’t become great without training and a deep understanding of what they must do to encourage the development of their mentees. There should be a program for mentors and feedback from mentees. There are many other ways to help lawyers deal with the fear factor, but we have to start with consciously confronting the problem.

Core Values

Danny Miller is the author Managing for the Long Run: Lessons in Competitive Advantage from Great Family Businesses.




Danny and I met some years ago and he and I email on occasion. His book is replete with examples describing why Family Businesses are successful. These reasons include;

- inspiring ideals
- a passion for the substantive over the pecuniary
- patience and perfectionism
- religious unorthodoxy
- Spartan parsimony
- permanent tenures
- systemic role ambiguity
- a host of other qualities almost totally ignored in traditional texts on management

The qualities he identifies as measures for success are the 4 C’s – command, continuity, community and connection.

You will recognize the names of these great family companies – Michelin, Estee Lauder, Hallmark, LL Bean, Levi Strauss, Coors, New York Times, Timken (of ballbearing fame), Microsoft, Apple, HP, Toyota, etc.

Take the New York Times, for example. It seems relatively easy to create a mission statement and core values for a great newspaper, though far more difficult to consistently apply them. Once a great company has created the mission statement and developed leadership, attracting and motivating the employees and managers is going to be a lot easier. In fact, unless a business can motivate its work force, it is not going to be “successful”. Note that “successful” means more than simply profitable.

Law firms are often created as “family companies” but usually after a generation and the original people retire and as they grow in size, they are no longer family companies. Where are the Blakes in Blakes or the Davis’s in Davis.

Nonetheless, a law firm can try to emulate the characteristics that have distinguished family companies and made them great places to work.

Law firms are curious creatures. There are some law firms that specialize in products which can inspire their workforce. For example, they may do aboriginal work, specialize in labour (either management or union), class action tort against law corporations (tobacco, breast implant, etc.), merger and acquisitions, environmental work. But in fact, most law firms don’t specialize so narrowly and many that do still look to the bottom line almost solely as a measure of success. They are also very difficult to manage for other reasons, including the independent and risk-averse nature of lawyers.

In a law firm there is little personal inheritance to pass on to the next generation – your name may remain on the door (though that too is unusual) but once you leave, you are no longer associated with the product, This is unlike great family companies which are passed on to the next generation.

Some law firms do have mission statements and personal codes of ethics and do believe in personal growth. Some have sabbatical programs, take on pro-bono work, participate in legal clinics and legal education, encourage partners and associates to do community work, etc.

For an interesting example, see Talent Without Borders

This is a story in the Globe about a law firm which has given its associates paid time off if they use their own vacation to participate in an aid program by participating in CIDA sponsored projects in non-industrialized countries. The associates mentioned went to Botswana and Vietnam.

The firm allocated $40,000 for participation in Leave for Change, …. In the end, seven employees participated, including Ms. Ghislanzoni, who volunteered in Botswana late last year, and her Edmonton colleague and marketing specialist Jenn Muir, who returned from a three-week post in Vietnam in January. (The eighth staff member became ill and could not travel.)

The result (apart from the actual work done abroad) was:

Like Ms. Muir, Ms. Ghislanzoni's experience left a positive impression of her
employer on her. “It reinforced the fact that the firm recognizes that different experiences all have different values and they all have a place in the firm,” she says. “It shows quite a bit of forward thinking and it makes me feel loyal to the firm because they supported me in something important to me.”

This is a hot topic for those who are looking for a work environment in which they can help others, enhance their own professional and communication skills, and enrich their personal lives.

I am convinced that every law firm should be looking at these issues through a different lens and discussing what can be added or changed to make working for it a truly unique and rewarding shared experience.

Crossing the Line

The subject of crossing the line is fascinating. Take for example Woody Allen’s “Crimes and Misdemeanors”.


A middle class dentist of about 55 has an affair with a woman who has a borderline personality disorder. She threatens his comfortable, established life and his marriage and he “must” takes steps to put an end to the problem. In doing so, he crosses a line from which there is no return.

Mark Dreier, a lawyer who graduated from Yale (so did George Bush) and created a very prominent litigation firm in New York, was recently convicted for fraud and other crimes. He was interviewed by Bryan Burrough for an article for Vanity Fair Magazine (yes I do read it sometimes). His story which makes for great reading. He crossed the line when he ran out of money to build his own law firm, then sold a fraudulent $20M note to a hedge fund. The note was issued purportedly by a client who is a major developer in New York. The issuer of the note was fictitious; the financial statements of the issuer were pasted onto letterhead of his client’s accountant. The hedge fund did no due diligence. Dreier was going to pay it back as soon as his law firm started making money.

Within a few years, Dreier had 3 estates, an $18M yacht, millions of dollars of art and various other toys. And he had by that time increased his Ponzi scheme to over $400M.

We didn’t hear much about Dreier because the Madoff story broke just a few weeks later.

Why do some people cross the line and not others? What motivates or allows a person to cross the line. Madoff, Dreier, Liknaitsky, Q.C.- (Alberta), Melnitzer, Q.C. – Ontario Aaron Mortgage (BC)(a lawyer was involved), etc. are in a sense mundane. Their motivation, however disguised or rationalized, was to achieve status and wealth not available through legitimate means.

The story of the dentist in “Crimes and Misdemeanors” is more complicated and one which resonates because a person who is so well-intentioned and upstanding crosses the line to eliminate the threat to his family, a threat of his own creation. There are other movies which deal with spurned mistresses, most notably “Fatal Attraction”.
But Fatal Attraction is far less subtle and leaves the audience with less to think about. The male protagonist, played by Michael Douglas, is stalked by a one-night stand played by Glenn Close.

Novels and movies portray situations in which people feel compelled, despite the consequences, to do something which will destroy their lives by betraying their values, ethics or morals. The result is often devastating. It is the essence of modern tragedy.

When our lives are under any form of siege or threat, it becomes tempting to cross the line. That threat can come from as simple and innocent an event as making a mistake in handling a file and not facing the consequences squarely and immediately.

It is always most difficult to do the right thing when the consequences seem most dire to the person facing the dilemma, but to an objective observer the problem may have a relatively straightforward solution.


Life is not really a slippery slope. It is best to think about things before you cross the line than have an epiphany after you cross the line, looking back only too late with the benefit of hindsight .

Risk and Decisions

Statistics are really boring for most people and almost impossible to use for almost everyone. There are lies, damn lies and statistics.


Risk on the other hand is exciting and get the amygdyla firing neurons all over the place.

In June, 2007, the opportunity to buy a choice piece of real estate in Manhattan was almost irresistible. By June, 2009, that same piece of property could easily bankrupt you. Statistics might tell you that buying is good in the long run (whatever that means) but would not really have given you much insight on when to buy. How do you calculate financial risk (ie the probability of profit over loss and in what amount)?

How do you calculate more generalized risk of a business decision? For example (See Globe and Mail) , the new CEO of Fiat, Sergio Marchionne, said of Fiat’s recent decision to expand in Russian and China:

"One of the things you can do in a period like this [2009 – 10 recession] is either throw yourself into a state of utter despair or start planning for a future that looks half-decent.”

When things are really expanding and the future looks rosy, the contrarians talk doom and gloom. When things are bad and seem to be getting worse, the contrarians are ready to buy, expand and take risk.

Another approach is to ask whether the risk associated with not making a decision or not taking some action outweighs the risk of taking action. Not taking action or accepting the status quo is a decision which entails risk, though it may not be perceived that way.

Does this have anything to do with practising law? I think it does, both from a legal perspective and discussing business decisions with clients.

A good example is found in the many articles on how to structure contract negotiations to minimize certain risks. This is prevalent in the construction contracts in which risk is allocated between the contractor and the owner (and sometimes consultants and architects) especially for matters which are unknown when the contract is entered into. However, this reduces the concept of risk to its simplest terms. The study of risk is much broader than that.

Clients may or may not think cognitively in terms of risk. Client may see their lawyer as a buffer between him and the potential risk of a deal. Any reasonable person knows that no transaction, or indeed any life experience, is wholly free from risk. But if the client sees the lawyer as a guarantor against risk ie the equivalent of investing in a Canada Savings Bond, the lawyer must approach the situation carefully. The client may not express his expectations until later. This translates into “I retained you to protect me” or “I told you I was not prepared to take any chances.”

The medical profession is constantly plagued by this syndrome and now we find doctors who will spend hours with their patients explaining in gruesome detail the possible complications and uncertainties of surgical procedures. They will use those damn statistics to emphasize the risks. Sometimes without further explanation of the risk either of the procedure or the risk of not doing the procedure. This can leave the patient with a sense of hopelessness and high anxiety. There are some doctors who use other metaphors to explain risk which may get the same point across but be more palatable and lead to a better outcome.

At least the risks associated with many medical procedures are reasonably well-known. The risks of winning or losing a legal action (or the infinity of outcomes in between) are generally not quantifiable. The risks associated with a business transaction are often very complicated and it is well known that many business people are prepared to act without full knowledge and in the absence of facts and this is what distinguishes them from lawyers who, being very risk averse, frequently want all the facts before they act.

The business lawyer will benefit by developing a better understanding of risk and how people manage risk.

Positive Reframing

2009 was not a good year for a lot of people, lawyers included. Probably it was my least active year professionally during the past 25 years. There were times when I sat at my desk thinking that I should probably go biking, home, to the gym. But at the end of the year I found that my productivity and billings were actually not so bad and I had accomplished other things including giving several seminars at AHBL, writing an article (hopefully to be published soon), cultivating friendships and planning to build a house in Mexico – not bad in hindsight.

Positive reframing, ability to adapt and the courage to stay in the present are skills we can develop to get the most out of life. Take for example, Beverly Willett whose article appeared in the NYT Magazine – Jan. 17, 2010

"The past year brought about setbacks for many. For me, it signaled the end of my 25-year marriage, the loss of membership in the family medical plan and the necessity of re-entering the workplace at midlife after a long hiatus as a stay-at-home mom. The market crash gobbled up a big chunk of my modest retirement account, and the divorce litigation left me with a pile of bills.

So in November, when my friend Terry mentioned that the company she worked for needed extra help right away, I followed what had fallen in my path. At least I could earn enough to foot the heating bill for a couple of months while I spruced up my résumé.

“I guess you’d call it a fulfillment house,” Terry said, describing the company. People placed orders for merchandise over the Web or by phone, and Terry’s organization fulfilled the orders. The items ranged from T-shirts and teddy bears to coffee mugs and casserole dishes.

The following Monday I showed up for my part-time holiday job. The pay was $12 an hour, before taxes, with no health coverage, sick leave or other benefits. During the first few weeks, I sat in a chair all day and typed in orders, a far cry from my early days as a lawyer representing clients with household names.

Right after I got my first paycheck, my car broke down, and heating-oil money was diverted to the repair shop. During Week 2, the 20 to 25 hours I thought I’d be working dwindled to 13. But I called a halt to my pity party when I counted up all my friends who lost their jobs in 2009. And that’s when I began to feel satisfaction from the work I did get. Although the job involved inputting product codes and shipping data for several hours at a time, it somehow got me in touch with real people with real lives in real towns. And it gave me glimpses into worlds other than my own that, for at least the course of a workday, melted preoccupation with my own troubles.

The scrawl on some of the orders reminded me of my 79-year-old mother’s. As hard as it apparently was for some of my customers to hold a pen, they nonetheless included handwritten notes with their $4.99 orders that said “thank you.” Of course there were orders that came with requests to include personal notes on the packing slips; others came with meticulous instructions for sending identical gifts to a number of family members around the country. My own grandmother, who was proud but of modest means, cheerfully handed out $5 McDonald’s gift certificates at holiday time to an ever-expanding contingent of grandchildren and great-grandchildren. Reading these notes made me long to be back in my grandmother’s tiny living room with my own family members, all of whom now live more than 250 miles away.

By Week 4, as the holidays approached, my duties shifted into Phase 2 of the fulfillment process. That meant I took inventory, pulled puzzles and potholders and other merchandise from the shelves, constructed and packed boxes, applied postage and hauled packages to the loading dock, where U.P.S. picked them up.

Typing in orders had made my backside ache from all the sitting; after the shift in duties, I was on my feet all day, carrying, bending, lifting and crouching. But as I bubble-wrapped breakables, something else began to register with me: all the work that went into getting the parcels I’ve received over the years safely to my door.

A couple of weeks before Christmas, the bone spur on my left foot flared up so badly from all the standing that I hobbled around for two days. All my nails broke, too, and I came home at night with compound paper cuts. My grand plans of tackling my massive to-do list in the evening after I got off work quickly fizzled: it took all my effort just to cook dinner, throw in a load of laundry and ice down my lower back. But make no mistake — my employers treated me well. They paid more than others pay for the same work and made sure we hydrated and took lunch breaks. The other part-timers I worked with smiled and always offered a hand. And at the end of each day I felt that oxymoronic “good tired.”

The job has now ended, but that’s O.K. There was no way I could begin to whittle away at my substantial debt at that pay, and my physical and mental stamina make me a better sitter than a stander. But I needed to get back on my feet, and this was a way to start.

Even with all my years raising a family and working long hours as an attorney, I can say I’ve never worked so hard in all my life. And yet it might turn out to be the best job I’ve ever had."

Beverly Willett is a freelance writer living in Brooklyn.

Measuring "Value"

According to the “Outliers” (Malcolm Gladwell), you need about 10,000 hours to become expert. This can apply to piano, theoretical physics or law. At 4 hours per day, 300 days per year, this will take 8 1/3 years.

That is daunting. With some help, maybe it is possible to do it in 8,000 hours.

Stephen Hawking’s book “The Brief History of Time” is one of the world’s best sellers and least read books. According to 20th century physics, on the quantum level, time is reversible, ie the laws of physics apply forwards or backwards in time. On the macroscopic level time goes forwards (at least that is our perception and a cruel one). The “arrow of time” has been subject of much debate in the domain of physics. But I doubt if we would have many meaningful conversations on everyday life unless we implicitly assumed time moves inexorably only in one direction – ie forward.

Lawyers sell their time so there is a direct linear relationship between time and money. For lawyers and other professionals like accountants and architects, time is money.

Unfortunately for those of us who are slaves to this clock and have been doing time records for 20 or 30 years (regrettably even more for me). time and money have become interchangeable, in fact synonymous.

Mastercard’s advertising is truly ingenious – zoom in on a kid playing hockey - $2.00 for the puck, $25 for the stick, $200 for the skates, - watching your kid score a goal is priceless – but for everything else there is Mastercard.

If you spend each of your 5 –6 days a week in the office attributing to each hour a price, what is the price of the hour you spend watching your kid play hockey, or piano or for that matter, you playing piano.

What happens if you can’t allocate value to activities which are not “productive” ie cannot be billed out. Or if you can only prioritize activities based on monetary value.

Here is a link to an article from the New York Times in which the writer struggles with this issue. He expresses it much more eloquently and subtly than I can.

Legal Mentoring

The following article recently appeared in the New York Times.

The Children of Cyberspace: Old Fogies by Their 20s
By Brad Stone, published January 9, 2010

This article deals with technology. A comment which interested me was that there are now mini-generation gaps rather than merely generation gaps. According to Wikipedia (but with a disclaimer that there is no substantiation) gender gaps means:

"The term first became popularized in Western countries during the 1960s and described the cultural differences between the young and their parents."

Although some generational differences have existed throughout history, because of more rapid cultural change during the modern era differences between the two generations increased in comparison to previous times, particularly with respect to such matters as musical tastes, fashion, culture and politics. This may have been magnified by the unprecedented size of the young generation during the 1960s, which gave it unprecedented power, and willingness to rebel against societal norms."

If a generation is about 20 years, that leaves a couple of generation gaps between me and some of the articling students. A frightening but challenging thought. The generation gap and technological advances present formidable obstacles to the "elder generation".

We (i.e., me) are so immersed in today's problems and the urgency and deadlines imposed by practice, we have even less time to contemplate the multitude of ways in which the legal world will change and we are far removed from the cultural and even physical technological changes. This is a problem which is likely faced by young lawyers too - too little time and too much to do. How are we to plan for the future while struggling to keep our heads above water today.

As a mentor, I wonder if my experience will be relevant to the practice of law as it inevitably evolves over the next 20 - 30 years?

The teenagers of the '60's and '70's thought the experience of their parents was irrelevant at best and counter-productive and tainted at the worst. I can say this with confidence having grown up in that long-ago era.

Being an optomist, I assume that I have some valuable or at least interesting ideas, stories and experiences for young lawyers.

So the purpose of this post is to invite the reader to think about how lawyers practice law, how they use technology (or don't), how they communicate within their office, with their peers and with their clients, and whether they are anticipating those inevitable changes. Also what it is that the older lawyers can communicate to newly called lawyer that they may perceive as valuable and interesting.