March 2011 Bar News
"What do lawyers really do?” the student asked me, and I gave a general answer about rights and justice and being a counselor and advocate. Once, on Law Day, I asked the same question to a group of students. My favorite response was, “Lawyers sit on their butts and make phone calls and money!” Maybe.
The question, though, haunted me, much as the question “Do you teach quality?” touched the protagonist in Robert Pirsig’s brilliant novel Zen and the Art of Motorcycle Maintenance.
What do we attorneys really do?
We are our clients’ voice, their confidant, protector, and advisor. The ultimate base of what lawyers do, though, is that we look at the world through others’ eyes.
Through Judges’ Eyes
To give good advice and make persuasive arguments, lawyers must look at their case through a judge’s eyes. Is our argument on solid legal ground? Does it make sense? Is our position consistent with current law? Is justice furthered by the conclusion we are proposing? A judge once shared the tale of a lawyer asking for CR 11 sanction against an opponent for missing the deadline to respond to a motion. The responding lawyer conceded she had missed the deadline. She was at the hospital anxiously waiting through her child’s emergency surgery. The judge, a parent herself, understood the lawyer had her priorities right. While looking through the eyes of the Civil Rules, the moving lawyer may have had a point; looking through the eyes of the judge — or any parent — his argument lacked merit.
Through Our Clients’ Eyes
Lawyers spend most of their work life looking at the world through the eyes of our clients. To understand their position. To convey their story in a human, personal way. To bring life to their argument.In 1994, I had the privilege of spending a month at the Trial Lawyers College on Gerry Spence’s Thunderhead Ranch outside Dubois, Wyoming. While much of the month was spent on trial skills, the biggest single element of the course was how to understand and convincingly convey a client’s story.
One of the visiting professors asked to be the protagonist in a psychodrama exercise. “I’ve always wanted to ask my dad why he really didn’t attend my Harvard Law School graduation,” he said. “He was just out of prison and said he didn’t have a hat, so he couldn’t come. Rising from a usually single-parent family in the South, with no running water in our home, to graduating from Harvard Law School, I thought he’d be the proudest parent in the auditorium. But . . . he didn’t come. He didn’t have a hat.”
“Who can understand his dad?” Gerry asked. And my hand involuntarily shot up.
“I do,” I said, and looked the protagonist in the eye. “I loved you enough not to go to your graduation, though there was no one prouder of any student graduating that day than I was of you. You have accomplished more than I could have dreamed. I loved you enough to stay away. All I could think about was the get-togethers among your friends and classmates. Your classmates would introduce their parents as this great person or someone with that great accomplishment. About all you could say about me was that I wasn’t in prison right then. I love you too much to put you in that position. I didn’t want to argue with you or in any way taint your great day, so I said I didn’t have a hat. I did have a hat, and do still have a very proud heart that loves you very much. Enough to stay away from an extraordinarily important event in your life and mine, whether I had a hat or not.”
Somehow, some way, I could see the moment through the eyes of the Southern felon with a remarkable son.
My friend Paul Stritmatter had a case years ago in which his client became bed-bound. To look through his client’s eyes, Paul spent two days in bed in a nursing home next to his client. What he discovered was that the nights, when you couldn’t sleep and no one was around, were almost unbearable. The screams and moans, the itches that couldn’t be scratched, the impending hopeless feeling. Paul conveyed his client’s situation through experienced eyes and helped acquire funds to assist his client for the remainder of the young man’s life.
Through Our Opponents’ Eyes A quality advocate views the case through the eyes of his opponent. Anticipating defenses, arguments, and strategic moves, and preparing counter-actions. I often ask clients to give our opponent’s arguments. Initially they get mad, or think the exercise is stupid, or wonder if I am on their side. After we discuss the varying arguments and views in the case, my clients more often understand our strong and weak points, get more reasonable expectations, and can better assist in preparing our case.
Years ago, I asked a bunch of my mentors, “What is the single most important question a lawyer needs to ask herself and her client?”
Frank Shiers responded, “‘Why would they do that?’”
The question requires someone to put themselves into the opponent’s position — to look through their adversary’s eyes — and often can show how unreasonable, or reasonable, a particular demand is. If my client can’t think of a reason the opponent would accept our offer, it is really no offer at all.
Through Witnesses’ Eyes
Persuasive attorneys look through the eyes of each witness, turning their place in the case into a puzzle piece that fits nicely, and favorably to the client. Not asking too much or too little. Providing the fact-finder information which ties up your case one piece at a time. Bringing life to their words.
Through Father Time’s Eyes
Finally, and perhaps most importantly, a lawyer looks at the world through the eyes of Father Time. Sometimes the best result does not give immediate gratification, but over time is a wise, practical solution. I often tell my clients that I am more interested in how they view our decisions a year later than how they view them a month later.
Years ago, I represented a bank president’s wife in their dissolution. She would take no maintenance or child support, no matter how much she deserved it. “If I take a penny, he’ll hold it against our son forever,” she said. “I won’t do that to my child.” No matter how much I argued and pleaded, she refused. When we went to court to finalize the dissolution, the judge tried just as hard to persuade her. In the end, he (reluctantly) signed the supportless, maintenanceless decree. Two years later, I went to a nursing home to do a GAL report. In the hallway, on her knees cleaning up after a resident, was my client. I shuddered, got down on my knees, looked her in the eye, and, quite shaken, asked, “Do you hate me?” “No,” she said, “we did the right thing.” Three years later, our paths crossed again. She had a new marriage and child. For the next decade, our paths crossed often at school events and on ballfields. Finally, I gathered my courage and asked her about her decision those years ago. “It was the right decision for the long term,” she said. “My older son and his father have a great relationship.” Sometimes the best long-term decisions are painful in the present.
The ability to look at the world through other people’s eyes can be remarkably awakening and fun in our personal life, as well as our professional life. Seeing the world through my sweet granddaughter Kinzie’s eyes makes me want to dance to silly songs, kick balls, chase the cat, pull open drawers, throw plastic containers on the floor, read picture books, and be in constant motion until it’s time for a nap. That is not a bad way to look at life. For a lawyer or a grandpa.
Jeff Tolman is a former member of the WBSA Board of Governors and practices in Poulsbo. He can be reached at
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