Why Do This Job?: Reflections on my 1,000th CLE Talk

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Greetings from the Cordele, Georgia, Cracker Barrel. I am out and about and doing some client interviews today. Yesterday, I spoke to a group of law students about criminal defense. As is often the case, I was the only private practitioner on the panel. I am what is known in the biz as a “paid lawyer.” A big part of the talk was the topic of how we came to be in our current job. And that topic boils down to “why do you do what you do?”

The talk took a familiar turn. The best public defenders I know are quite passionate about helping the forgotten and the oppressed. A comment was even made at one point that money should not motivate a person to enter criminal practice. In my many years of speaking on panels, I’ve generally fallen victim to groupthink. And I’ve tried (probably unconvincingly) to say essentially “me, too.”

I am not being critical of the idea of passion for the oppressed as a motive for practicing law. Certainly, I would hope that every public defender feels that call.

But it is not authentic for me to say that such a passion drives me. And I think I’ve come out of some talks feeling slightly “off ” about things either because I said something I didn’t quite feel in my gut or because I felt guilty for not feeling a sense of passion for the poor in my legal practice. Come to think of it, if I felt such a drive, I would betray it every time I collect a fee or refuse to take on a case pro bono.

When it came my turn to speak I was more honest than I had been at a talk like this. I said that I think litigation is incredibly fun and intellectually challenging. I said that I like winning. And I find a sense of joy from dismantling a criminal conviction, working on an important case, and eviscerating a statute on constitutional grounds. What I didn’t say but should have said was that I am, in fact, motivated to do well financially in the practice/business of law.

I have always handled a few court appointed cases a year. But I have always viewed those cases as an opportunity to compete, litigation and try my best to win. I treat those cases just like retained cases. Why do I take them? Often, I do so to gain experience in an area (I’m developing a Federal practice, so I am doing more CJA work presently) to expand the range of cases I take on a retained basis. And sometimes the judge or the public defender entices me with a cool issue or some cool feature in the case. Alas, I have not taken an appointed case because of some social committment to the oppressed. It is great when that happens, but I cannot say that it is central to my thinking.

To take it a step further, I cannot think of motivation to be great at being a criminal defense attorney that is bad as long as it is consisted with the Georgia Rules of Professional Conduct, the Constitution, and the laws of the Federal and Georgia government. But I think our CLE and educational system suggests that one motivation outranks them all or that some are not valid and should induce guilt.

As a result, our schools and CLEs don’t often address topics such as how to set a fee, how to manage a law office, or how to responsibly and professionally market your practice. So, there is a cottage industry of snake oil salesmen out there who are not giving good advice. Meanwhile, at our CLEs we get a steady diet of the one true valid motivation to be great at criminal defense. This motivation is the one that is served.

Even worse, our very best and brightest law students may be deciding to do some other kind of law because they don’t feel that they have a pure motive to do it. I’m going to be up front with my motivations in the future and am going to stop feeling guilty about them.

 

 

Is This the Hill You Want to Die Defending?

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There has been much ado about a controversy at Duke Divinity School. I will leave aside, for purposes of this blog the elements of race, gender and politics. Those articles and blog posts are being written. For a few paragraphs here, I want to discuss this controversy as an opportunity for a practice pointer when it comes to sentencing or any other presentation you might wish to bring to a judge that is discretionary in nature.

The controversy, in summary is this. A Duke Divinity School professor received a mass email about a two day racial sensitivity training. From what I can tell, the training was not mandatory. There was a link to click to enroll, and space was limited. The professor replied to the entire faculty that the seminar would be a waste of time to attend. I don’t know any of the actors beyond reading their emails. But it appears that the professor was more of a curmudgeon than a bigot. However, he chose to touch the third rail of campus politics — identity politics. And things quickly spiraled downhill. And he has now resigned. The controversy has occupied much faculty and student attention. along the way. And now the controversy has become fodder for conservative blogs and periodicals.

The professor’s email, the one that began the whole thing, is worth quoting in its entirety:

Dear Faculty Colleagues,

I’m responding to Thea’s exhortation that we should attend the Racial Equity Institute Phase 1 Training scheduled for 4-5 March. In her message she made her ideological commitments clear. I’ll do the same, in the interests of free exchange.

I exhort you not to attend this training. Don’t lay waste your time by doing so. It’ll be, I predict with confidence, intellectually flaccid: there’ll be bromides, clichés, and amen-corner rah-rahs in plenty. When (if) it gets beyond that, its illiberal roots and totalitarian tendencies will show. Events of this sort are definitively anti-intellectual. (Re)trainings of intellectuals by bureaucrats and apparatchiks have a long and ignoble history; I hope you’ll keep that history in mind as you think about this instance.

We here at Duke Divinity have a mission. Such things as this training are at best a distraction from it and at worst inimical to it. Our mission is to thnk, read, write, and teach about the triune Lord of Christian confession. This is a hard thing. Each of us should be tense with the effort of it, thrumming like a tautly triple-woven steel thread with the work of it, consumed by the fire of it, ever eager for more of it. We have neither time nor resources to waste. This training is a waste. Please, ignore it. Keep your eyes on the prize.

He may actually have a point. An argument could be made the he was right. And, giving him the benefit of the doubt, he sought to challenge his colleague to engage in a dialogue about race and gender in a more rigorous way. But surely he knew the temperature in the room. His message, in its particular form, was likely not going to move the ball down the field.

I am reminded of the task of preparing witnesses to testify at a sentencing hearing or at a motion to terminate probation. Or I am reminded of what it is like to collect letters on my client’s behalf for the parole board.

The people who will offer their testimony are deeply suspicious and (very often justifiably) distrustful of the judge, DA, law enforcement, and the judicial system as a whole. And they see their moment on stage as a time to stand up and vent that frustration or speak out about what they perceive to be right. In their mind, it is time to take a noble stand.

And in those instances, I have to remind the witness — “is this a hill that you are prepared to die to defend?” In other words, I may tell the client’s mom or wife, you could use your moments with the judge either to (1) inform him that he is biased in favor of the state and does not know how to run a courtroom fairly; or (2) persuade the judge to let my client out of prison. But the witness cannot do both.

Sometimes it may be better to role your eyes and delete an email instead of using a mass email situation to make a point. It may be better to raise the level of conversation over time than to use the medium of mass email to tell your colleagues that the training is a waste of time. Some hills are worth dying to defend (when you know that you surely will die) and others are not. Of course, if we do not get the result we wanted, the witness is often resentful that we did not take the stand. But, I always think, we chose to defend the right hill even if our efforts in that regard were futile.

How We Interview Trial Counsel

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Ineffective counsel claims are probably the least fun part of the job at the state level in Georgia. Unlike the Federal system, where an evidentiary hearing on an IAC claim is often left for habeas proceedings, Georgia IAC must be raised at the first available opportunity, or it is deemed to be waived. This system has its benefits, but it also creates pressure on the appellate attorney to raise ineffective assistance of counsel, regardless of the issue’s viability. Having done many IAC interviews over the years, I have some basic things that I have learned to do in my approach.

  • Recognize that this interview is part of the job. Awkwardness can feel like an inevitable part of this process. But it does not have to be horrible. There are some things that I always acknowledge up front. What I am doing here is part of the process. And the lawyer you are about to interview had a difficult job to do. Criminal defense can feel like a thankless task. And if the trial attorney is a public defender or was appointed to the case, it probably feels even more thankless. I always like to start the interview by expressing gratitude to the trial lawyer for doing this job and for all that he did to try to protect the client’s right to a fair and meaningful trial. No trials are perfect. And just as the lawyer did his job to protect the client, you are there to do the same.
  • Listen. Lawyers are great at making arguments and asking questions. We sometimes are not the best listeners. Just as you have worked hard to prepare for the interview, you should work hard to listen to what the lawyer tells you in the interview. And it can be good to demonstrate how well you are listening. If the lawyer gives you a lengthy answer, stop at points along the way to say, “okay, let me see if I understand what you are saying.” Then give the fairest possible short summary of what the lawyer just said that you can possible do.
  • You Are Not There to Argue. Part of listening is to encourage the lawyer to talk to you. So, if you think that the lawyer is mistaken about his understanding of the law or memory of the facts, you should not argue. The law is what it is, and the facts are what they are. And you will have the opportunity to argue all of this to the Court at some point in the future. If the lawyer is mistaken about what happened or doesn’t remember, it can be okay to show him the transcript. But do so with an aim of being helpful, not to argue.
  • If You’ve Been in the Lawyer’s Shoes, Don’t Forget That Experience. There is nothing fun about this part of the appellate process. It’s not fun to be interviewed toward IAC, and it’s not fun to do the interview. It is important to think about what it’s like to be answering the questions and not to get caught up on what it is like to be asking them .
  • Take a Witness With You. It is a maximum in the law that no interview with a witness should be without a witness to the interview. You don’t want to be the sole impeaching witness if the lawyer later changes an answer
  • Elicit the Lawyer’s Persective on the Other Issues. Reading the trial transcript is a poor substitute for living through the trial. The lawyer lived through it. Don’t lose the opportunity to ask the lawyer for her perspective on the trial. What did she think was unfair about the trial? What does she think the appellate issues are? Another good question is, “Mr. Lawyer, if you were in my shoes doing this appeal, what would you do?” Often this question is met with a blank stare. But occasionally you will hear something that you hadn’t thought of before that point
  • Be Grateful for the Interview. No matter how you think it went, be sure that think the lawyer for his time. The lawyer did not have to sit for an interview. So, make sure that you thank the lawyer for letting you interview him. And, again, think the lawyer for being a criminal defense lawyer. It may be that you are the only person in the case who has ever told him thank you.

When the interview is over, I get my notes together and process them as soon as possible. I also try to follow back up with additional questions as soon as possible after the interview. There is no way to make this process fun. But I find that the steps I have outlined above make it a bit more palatable.

Stoicism and the Modern Lawyer

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Marcus Aurelius seemed to know the modern lawyer (though he died centuries ago). See if you can identify with the following sentiment:

Say to yourself in the early morning: I shall meet today ungrateful, violent, treacherous, envious, uncharitable men. All of the ignorance of real good and ill… I can neither be harmed by any of them, for no man will involve me in wrong, nor can I be angry with my kinsman or hate him; for we have come into the world to work together…

Marcus would have been an excellent litigator (or at least a healthy one).

Every day this year, I have started the day off with a selection of Ryan Holliday’s The Daily Stoic. If you haven’t considered ancient stoicism, you should check it out. If there is a system of philosophy out there more ready-made for lawyers, I am not sure what it is.

What Stoicism Isn’t

Forget what the dictionary or common usage tells you about stoicism. Stoicism is not a generalized ability to resist pain, and it is certainly not systemized indifference to the world around you. Such is the popularized caricature of stoicism. Stoics are engaged with the world around them in a particular way. Nor is stoicism a singular philosophy. Just as there are sects of Christianity, there are sects of stoicism. But there are some commonalities among the schools of stoicism. And none are like the popularized notion of it.

What Stoicism Is

I will not be able to explain anywhere near fully in a short blog post. I’d refer you elsewhere for more reading. Ryan Holliday’s blog is a good starting point. So are some of the blog posts on the topic by Tim Ferriss. My introduction to stoicism came from a novel that I read by Tom Wolfe titled A Man in Full. I first picked up this book because of its setting in Atlanta. But I read to the end for its introduction to stoicism. And when I finished the novel, I wanted to know more.

So, what is stoicism? As much as I implore my students to stay away from wikipedia in their assignments, the entry on stoicism is a good starting point:

Stoicism is predominately a philosophy of personal ethics which is informed by its system of logic and its views on the natural world. According to its teachings, as social beings, the path to happiness for humans is found in accepting that which we have been given in life, by not allowing ourselves to be controlled by our desire for pleasure or our fear of pain, by using our minds to understand the world around us and to do our part in nature’s plan, and by working together and treating others in a fair and just manner.

Students of Buddhism or devotees to Christianity might see some commonalities here. For Buddhists, suffering comes from uncontrolled desires or the inability to see and accept the reality of change arounds us. From the Judeo-Christian context, sin lies in placing idols before God, which are worshipped as if God. These things ultimately fall short on providing happiness. St. Augustine wrote “our heart is restless until it finds rest in you.”

For stoics, the natural world operates in a logical system. And our minds should work within that plan. However, we can get caught up in our own dramas of desire for pleasure or fear of pain. All of which disturbs our sense of tranquility.

I am aware that I have grossly oversimplified the philosophy and may be committing an error by trying to describe stoicism as a unified philosophy. And perhaps you are thinking, “who cares?” Let me try to bring this to the level of the relevant by describing a few stoic exercises.

Stoicism is infinitely practical. Holliday writes, “stoic writing is much closer Yoga session or a pre-game warm up than to a book of philosophy a university professor might write. It’s preparation for the philosophic life – an action – where the right state of mind is the most critical part.”

Stoic Practices

  • Is This What I So Feared? Seneca advised his students to simulate misfortune or to live out, if only for a brief time, what they fear most. He advised spending a period of time in practiced poverty, wearing course clothes are the sparest of food. He notes that the reaction to practicing poverty or to simulating misfortune is that you will find that it wasn’t the big deal you imagined it to be. In simulating what might happen if you failed at something, which is likely more transitory and more reversible than you might imagine, you free yourself up to act on bigger thoughts with higher risks.
  • Training Perception to Avoid Good or Bad. Again, from Holliday:

There is no good or bad to the practicing Stoic. There is only perception. You control perception. You can choose to extrapolate past your first impression (‘X happened.’ –> ‘X happened and now my life is over.’). If you tie your first response to dispassion, you’ll find that everything is simply an opportunity.

Want to see suffering in action? Open up your Facebook feed and look at the posts you find there — nothing but vitriolic emotional reaction from objective reality, whether it be some interpersonal issue, an event in sports, or an event from the news. You can train yourself to view things as they are then to take the opportunity that the event creates.

Application to Law

The law is richly rewarding to attorneys. However, neither judges, clients, nor opposing counsel hand out lollipops to us on a daily basis. And I commend a study of stoic philosophy to lawyers. Open up the bar journal and look at last month’s list of lawyers who were disciplines. Many of them acted to avoid something that would have been far easier to handle than the consequence of the choice they made. What if they had regularly engaged in the practice of what they feared the most? And the number of lawyers who suffer mental health issues or substance abuse? What if we trained ourselves to look first at objective reality to see what opportunity is presented?

I’ll close by saying that I’m no stoic. But I enjoy reading about stoic teachings. And I have extrapolated from it some practices that are helping me.

How We Close Cases in Our Office

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finishlineMany of our cases take months or years to take from start to finish. But the way we finish is as important as how we start. I’ve written in a previous blog post that we take on cases with the knowledge that we will often be engaged in the process for quite some time. Direct appeals and habeas corpus can take years as you assemble the file, get the transcripts, coordinate witness schedules for evidentiary motions, and wait for a briefing schedule. And major felony cases at the trial level take some time as we try to negotiate pre-indictment settlements or as we get through lengthy and complex motions. When the case is all over, it is important to be deliberated about how the file is closed and here are some things we do in our office at the end of the case.

  • First, we think about whether the case is actually over. There can often be loose ends that need to be tied. If we were successful in the appeal, for instance, there is a whole process involved in getting the client brought back from the prison system and getting the case transitioned back over to a pre-trial posture. This time can be perfect for working out the case. And decisions need to be made regarding the client’s representation if there will be a second trial. The case is not over until it is closed in the court system or until it is handed off to new counsel. If we have been successful in getting a person off of a registry, it can be important to get all of the necessary paperwork forwarded to the agency that is responsible for maintaining it. There can be more steps than one might imagine in ending a case.
  • We send a letter to the client and the client’s family reinforcing that the case is over, explaining what we did, and inviting questions about the process and the conclusion. It can be important to clarify that the case is at its end in writing. And often this letter can prompt further questions. I always encourage the client to keep in touch as there may be things down the road where I can be of assistance.
  • I send thank you notes. If any person helped in the case, whether that was an expert, an attorney who answered a question, a person at a government agency who helped me with something, or lay witnesses who provided letters, thank you notes are great to let people know how they helped. And expressions of gratitude are good for the person writing the thank you note. I will also send a thank you note to the person who referred the case to me way back at the beginning. When you refer a case, it is nice to hear how things worked out.
  • If there are things that were not scanned, we get them scanned in. Then we make the paper file available for the client to pick up. One day, I hope that storage buildings as repositories of for closed files will be a thing of the past.
  • If any of the motions in our case can serve as a form for future cases, we move a Word version over into our form bank. And if we think that any of the cases we found throughout the course of the case will be helpful for future research, we move those over into our topical research bank.
  • We close the file in Rocketmatter. And we move the file to an external hard drive and off of our active data system.

We are constantly working on our systems in the office. A consistent closing system is instrumental to a practice’s success. And it provides a helpful moment to reflect on all of the people who come together for us to give a case our very best effort. Closing is as important as opening, and we work to close things out in a thoughtful and deliberate way.

Why Some Law Practices Struggle

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I sometimes find myself having the same conversation with different colleagues several days in a row. It may be that my thoughts find their way into the conversation or that there are certain trends. It may be pure coincidence. In the most recent version of the repeating conversation phenomenon, I have heard colleagues complain about the nature of practice. And here is the three-fold refrain.

  • The market is flooded with attorneys where I practice. And I cannot provide the service that I want because I am getting beaten on price by attorneys who will not do the same good job I would do.
  • Every year the legislature/sentencing guidelines/judges/parole board/appellate courts (we could continue to fill in these blanks for a while) makes it harder for me to provide very much to clients.
  • Client are so difficult. They have unrealistic expectations, and they want to micro-manage their case.

I have a couple of thoughts about what I am hearing. And when I approach it this way, I tend to gain a new perspective.

Read more

Giving the Client a Voice in the Process

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IMG_0017Yesterday, I took a drive out to the hinterlands to visit a habeas corpus client. I met up with a law school intern for the visit. During the time we spend together, the client what to know what he could do to assist in his case.

Over the course of my career, my thinking has evolved on the subject of clients and their desire to assist in their case. There’s a meme circulating among colleagues that says “don’t confuse your Google search for my law degree.” 10 years ago, I would have worn the t-shirt.

Then I try to imagine what it would be like to have no control over anything in my life and no freedom. I would want some input in my case. I spoke to a colleague who is an appellate lawyer in an indigent defense agency. She gives the clients a copy of their transcript upon request and encourages input. She has never experienced a downside with the practice. Never. Of course, at the end of the day, the lawyer chooses the issues. And knowing which issues to include is a big part of the art and science of law. But it doesn’t help the relationship to discourage the client from having a voice. I found an excellent law review article on the topic of how to allocate the decision making between the attorney and the client. The article suggests that a collaborative model focused on the client works best. In this model, their lawyer works to inform the client about options and empowers the client’s ability to choose as much as possible, having had the benefit of the lawyer’s experience and wise counsel.

So, here is what I told my client. I said to get in the law library every chance he could find. And I told him that if he finds anything that he thinks might be helpful to write me. He was happy with this advice. I think it made him feel like he had a voice in his fate. And who knows, sometimes clients come up with good ideas if we give them a chance.

The Myth of Expertise

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We just ended a bad week for experts. I was in Athens, Georgia, Saturday for a football game. Auburn was a 10.5 point favorite to win. It turns out that they did not even score 10 points, losing 13-7. Earlier last week, the presidential candidate whom most experts predicted to have somewhere between a 66% to 75% chance to win the election, lost the election. Experts are having a rough go.

Yet, we lawyers work with experts all of the time. In fact, we are experts. The State calls experts for everything from child interviewing to cause of death. And we call our own experts who testify to different conclusions. Maybe those types of experts are different. After all, while pollsters and oddsmakers claim to be experts on what while happen in the future, the sorts of experts we call a trial tells us their opinion of why or how something happened in the past.

Lawyers, however, are often called upon to do what the pollsters and the bookies do. We are called upon to advise a client about the odds that something will happen in the future based upon a decision. We sit with clients and advise them of the potential outcome of a trial that would take place if they turn down a plea bargain. Or we tell clients that we believe that they should turn down a plea bargain because their chances at trial seem better than the offer that has been extended. We advise on the efficacy of a potential motion versus the problems that might arise by pressing it. We are the sort of expert who predicts the future, interestingly enough, based upon how powerfully we believe we can use our expertise to explained what happened with a set of facts based in the past. That is almost a definition of what plea bargaining is.

Plea bargaining is essentially what criminal defense lawyer do. The United States Supreme Court recognizes it. In Missouri v. Frye, Justice Kennedy, writing for the majority said, “In to-day’s criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.” And trials are quite rare compared to the total of criminal cases formally accused or indicted.

How, then, do lawyers properly act as experts in this arena? We have to recognize that we are not fortune tellers. But our role is to make sure that we understand the law and facts in each case. We must engage in plea bargaining. And when we sit with a client, we have an obligation to make sure that they have what they need to make an informed decision. And when the client is fully informed, we cannot claim to predict the future. And it is not our job to make the ultimate decision of whether to take a plea or go for trial or whether to testify or not testify. And just as we cannot abdicate our role to work for the best possible offer, to communicate it, and to inform the client’s decision, we should not allow the client to abdicate the choosing to us. This process is not always clean, and the lines often blur.

But this week has taught me, if nothing else, that there is no science to predict the future. No expertise tells us how it will unfold. But the real work is in assessing the reality of the present choice based upon what we think can be proved about past events. We can only research, describe, and be present with clients. The big decisions are theirs.

 

Breaking into Appellate Law

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A few days ago, a newly-minted attorney asked me about what it takes to become an appellate attorney. I was initially at a loss for an answer. I never exactly set out to do this for a living. In law school, I was quite sure that I would be a trial lawyer. Only now am I closing out my last trial level cases and moving to being a 100% appellate and post-conviction practice.

How I Ended Up Here

I’m a frustrated novelist, which many lawyers are. And I enjoy the solitude of an office and a closed door. I greatly prefer it to calendar calls and all of the other time-wasting rituals of the criminal trial process. Back in law school, I worked for an attorney who had some appellate cases but did not particularly like them. At the time, he was sending the writing off to a former associate who had moved to the North Georgia mountains. I tried my hand at a couple of appeals. And soon, as a 3L, he was no longer sending those appeals out. I was doing them, and it was my role even as I developed a trial practice in his firm as an attorney. In my first year, I caught an issue on a murder case that led to a reversal of the conviction. I hit a lucky streak and reversed a few more, including an issue I caught in what was otherwise run-of-the-mill DUI trial. A Public Defender’s office started sending me all the appeals I wanted. The pay was low, but I was getting the reps in. There have been many losses, but there have been some astonishing wins. And it’s often fun.

It appears that appellate law is the thing that many lawyers and students want to do. For budding civil appellate lawyers not in a big firm, I can think of no comparable thing to PD office with a steady stream of cases. There are few civil trials these days and all sorts of incentives not to appeal. And if I had intended to build an appellate practice, I don’t know that I would have followed these exact steps.But nearly ever felony trial that ends in a one-word verdict is appealed, and there is not an attorney’s fee downside. Everybody understands why a person with a 3,000 year Georgia-style sentence would like to appeal his conviction.

It’s Not Always Fun

When it comes to retained work, there are all sorts of challenges. The trial lawyer who comes before you often makes a mess of things and leaves errors unchallenged. The client has often exhausted his life’s savings before the appeal starts. And when you get started on the case, the client and family have some serious trust issues with attorneys because the lawyer they chose to do a murder trial was not as good at murder trials as he was at drafting Uncle Jeff’s will. Also, if you are not in the appellate section of a major firm, there may be some limits on the ability to get some of the bigger cases. But those come with time. The client often cannot make the transition to standards and processes of appellate law, with a lingering interest in whether various witnesses were lying and with little interest in the erroneous burden-shifting jury charge that you find so fascinating. Also, in the era of Serial, Making of a Murderer, and other such shows, clients come to you armed with an expectation that you should work for free or nearly free just because must be outraged by their perceived injustice. And the internet has done more for amateur jailhouse lawyering than the jail law library ever did.

With that said, appellate practice feels like “real law” to me. I find that the suppressed writer has a good outlet to work. And this kind of practice lies at the intersection of advocacy and scholarship. Finally, the work can be done from nearly anywhere there is an internet connection. So, it is pretty easy to pick up and hide away from the office.

If I had to advise someone on how to build this practice, I would note that it takes years. And it takes some creative maneuvering to get your reps in — including some pretty low-paying gigs for a while. And there are fewer cases out there than there are DUIs or petty drug offenses. So, the dues are much higher. But I think it is worth it, even if there are days when I wonder why I even went to law school.

A Big Lesson From a Short Failed Race

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On Monday, I stood at the start line of a hot, humid, and crowded 10k. Before then, I had done longer races, including a couple of half marathons and a full about seven months ago. And over the last three months I had been working with a coach to up my game. I had even begun to see improvements in short spurts during speedwork. In weeks leading up to Monday, I had recorded splits a minute and a half to two full minutes faster than my normal pace. And, while the temperature and humidity had been climbing here in Georgia, I had made it a point to get my run completed at the coolest point in the day early in the morning.

So, on the Fourth of July I found myself in a starting wave at around 8:00 in the morning awaiting the signal to go. The start was consistent with the runner I thought I had become. For three full miles, I was running splits comparable to my new faster times. But in the back of my mind, I noticed a crack. I wasn’t feeling quite right, even on the downhills. I pushed through until the first uphill, which I hit at my newfound faster pace. But this uphill did not lead to a downhill. It instead led to a more graduated slope and into another uphill. And by the latter part of mile 4, I was in some trouble. A glance at the thermometer showed me that the temperature was 83, and I looked ahead to the bobbing of heads as thousands approached and made their way up another hill.

Within my brain was a debate centered around a single question: “what the hell do I do?” Stop entirely? Slow down my running? Change to a walk? Or try to gut it out at my goal pace? There was a voice in that internal dialogue that said that I would get off this course and never run again. Meanwhile, I was sweating. And I was getting dizzy. At this point in my running (I’ve been doing it for about a year and half, having come to the sport later in life), I am unclear on where the line is between toughing it out and foolishly putting myself into a medical situation.

I Slowed to a Walk

I salvaged a split at mile 4 that was slower than goal pace but one that would keep my overall goal finish time in reach. But mile 5 ended all hope of my finishing pace. I slowed to a walk, went for water at the next station, poured a cup on my head and drank another. At a few points along the way, I tried to resume a run. But it is hard to move back into a run once I am extremely fatigued and have walked some. At the beginning of mile 6, I started a run. And as mile 6 unfolded (and with the help of a downhill and the sight of imminent finish line), I began to get back to where I normally am when I run. I was even passing people at the end.

I finished in disappointment and with a sense of dread. It was a dread of telling people how I did. And it was a dread of synching my Garmin data from the watch to the app on my phone, at which point this would all be memorialized.

Lessons Learned

I synced my data and texted a screenshot of the run to my coach. And I felt compelled to also share in my commentary that “I know I am much better than this.” Wrong! He texted me back, “actually, what happened here is quite consistent, except for mile 5.” I showered, came home, and began to look at the numbers. It turns out he was quite right. My average minutes per mile in that race, almost to a second, was squarely on point with my average minutes per mile over most runs. The funny thing to consider was mile five, the mile that I walked. But for that mile, I would have finished a pretty significant deviation from my average, albeit still below the goal I had set for myself. The body and mind rather dramatically brought me crashing down to my average of training. Did I give up at mile five? I’m not sure how to answer that question. I did stay on the course. And I did resume a run on the last mile. I did, in fact, reach the finish line. But I spent a mile essentially giving up. So, the answer to the give up question depends upon mood and perspective.

But what did certainly happen is that my racing self ended up in a tie with my training self. And I think that there is a valuable lesson in that. It is very hard to outpace our training and a bit foolish to think that we can rally in a moment to outdo or undo our habits. Our bodies, minds, and spirits will revert to what we are generally like. That is not to say that we cannot change and improve. I thoroughly believe that the dial on my fitness and speed is moving to the right. But it is moving a slower pace than my hubris had led me to believe. When my training pace or habitual pace moves firmly to the right, so will the racing pace. Progress has come and will come over consistent effort, through showing up and giving it full effort on those Monday, Wednesday, Friday, and Saturday mornings. And perhaps to train for a race that, for me would kick off at 8:00 a.m. in high temperature and humidity, it might have been good to train in those conditions. I hadn’t crammed for the exam, exactly. It is just that I had prepared for the wrong one.

There’s a lesson here for the law practice and for clients. Just as a runner’s racing self will struggle to outrun his training self, a lawyer at a hearing, or writing a brief, or engaging in a jury trial will struggle to outperform the lawyer in his study, preparation, and practice for those events. Just as you cannot cram for a marathon, you cannot cram for a critical case moment.

Many of my clients commit crimes of addiction or crimes of impulsivity. And often the preparation for the judge involves a parallel effort to kick an addiction. Or that moment of impulsivity came from a lifetime of bad habits where the client lacked the requisite skills to react to a situation in a better way. But lawyers and their clients can improve. We improve by showing up. We improve by noticing that the needle can move, albeit at a pace that is almost undetectable and often at a pace that is slower than we think it has moved. We are the sum total of our habits and practices rather than the sum total of a small collection of aberrant moments.

And the race doesn’t begin at the start line. It begins months before on some track or on a sidewalk in our neighborhood as we work to improve, not just this one split but the average of all our splits over a longer period of time, maybe even a lifetime.

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tori@scottkeylaw.com