I Quit Social Media

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When you go on a family vacation, the people you live with have the opportunity to learn more about you and how you are feeling. And so it was in Oregon a few weeks ago, that my wife noticed my anxiety level. And when she noticed it, I began to notice it, also. And after I noticed, I began looking for the source. I’m not sure that I’ve found it. But I think I have a few leads.

For one thing, I have been devouring too much election coverage — way too much of it. So, I decided to do the one thing about the election that I could actually control. I voted. With that done, the media’s coverage was fairly irrelevant to me. With my vote already cast, no infomation could possibly influence it. So, I went the next step. I unsubscribed from the New York Times and deleted the app from my devices. When I woke up the next morning, I reached for the iPad to click the app. It was no longer there. Then I noticed that there was more of it on Facebook. So, away went went the app on my phone and iPad. Then there was Twitter. Away it went.

I happened upon a TED Talk by Cal Newport. He encourages his listeners to quit social media. I had his book on my shelf and re-read the chapter on quitting social media. Then I took stock.

I tried to weigh the benefits of it. I could not think of a single case I have ever brought in by being on Facebook or Twitter. I also could not think of a single case I had won because of it. Then I tried to imagine the time I have devoted to them over the years. So, then I took a radical step. I deactivated Instagram, Facebook, and Twitter. Those services have beeen gone now for two days. Before that, I had not logged in for about a week. If anyone has noticed my absence, they haven’t told me. The people who have needed to talk to me, have seemed to find me.

When I am writing a brief and I hit a rough spot, I find myself reaching for the phone for that quick hit of dopamine. And I realize it is not there. And I almost immediately let out a relaxing breath.

Something else I have done. I have installed an extension on Chrome called Inbox Pause. This nifty service allows me to pause incoming mail everywhere until I log back in and unpause it. I pull in emails every day or two and process it all at once. When the email is paused, it is not available on my phone. I put more thought into emails when I return them. Or I pick up the phone and respond. When I am tempted to seek answer to a question by email, I know that there will be a delay. So, I am either okay with it or I call the person. I find myself having more meaningful interactions. If someone has noticed my new email habit, they haven’t said anything. I have found that email is sometimes an exercise in avoidance. It can be a place to avoid a topic that should be tackled at a higher bandwidth.

Here is something else I have discovered. I find emails that seem urgent. Then as I scan my inbox or call the person back, they say, “never mind. It resolved itself.” Or “never mind. I found the answer.”

Yesterday and today, I sat to write a brief. I found myself in a state of enjoyment. When I’ve reached from email, Facebook, or Twitter, they have not been there. “Oh, yeah,” I have thought to myself before getting back to work.

I need to hang out with my family more. They are very good at noticing things.

 

p.s.

I don’t consider the writing of this blog to be social media. It’s long form and offers the opportunity to reflect.

A Helpful Guide for Argument: Rapoport’s Rules

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Recently, while listening to Sam Harris’s podcast, Waking Up, I happened upon a guide to engaging another person in debate. It comes up when he introduces his interview with philosopher Daniel Dennett. Whether you are a lawyer preparing a brief or courtroom argument or a layperson engaged in a political discussion with a friend, it is worth taking a moment to understand and give the rules a shot. The podcast episode is worth a listen. Or for a quick read, check out Maria Popova’s post on Mr. Dennett over at Brain Pickings. Also, here they are:

1. You should attempt to re-express your target’s position so clearly, vividly, and fairly that your target says, “Thanks, I wish I’d thought of putting it that way.
2. You should list any points of agreement (especially if they are not matters of general or widespread agreement).
3. You should mention anything you have learned from your target.
4. Only then are you permitted to say so much as a word of rebuttal or criticism.

These rules have incredible value in any critical discourse. The most important reason is that your opponent or judge will be more likely to listen to what you have to say and be persuaded when you have disarmed them. Secondly, the rules encourage collegial and professional discourse (very lacking in the American political climate right now). Third, you will sound reasonable and potentially way more credible than an opponent who goes on the attack or reconstructs your opponent in a straw man form (inexperienced advocates often cannot resist). Finally, the argument you construct after articulating your opponent’s position fairly is likely to be a better one than the one you may have made out of emotion or in the form of an attack.

I hope that you will check out the rules. And when you finish with them, check out Sam Harris and Daniel Dennett.

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.

Were Briefs Better in the 40s-60s? If So, Why?

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14244199385_7f444f30f1_zToday, I attended a continuing legal education seminar featuring Ross Guberman. Ross is the author of Point Made: How to Write Like the Nation’s Top Advocates. When his book first came out, I briefly reviewed it and interviewed Ross here on the blog. I have enjoyed Ross’s book immensely and have used it as a reference over the last few years.

I could write many blog posts on the points that Ross covered today. However, it was a minor point that intrigued me the most. Ross believes that briefs today are not as good as they were in the 40s, 50s, 60s, and 70s. Why is that so? Ross said that briefs were better when lawyers dictated their work rather than sitting at the keyboard and writing. When lawyers dictated, the product was conversational and direct. When lawyers sit behind the keyboard, our work tends to be less conversational and more cumbersome.

I believe that Ross is on to something. I have been on the fence about using Dragon Dictate, the Mac version of Dragon Naturally Speaking. I have had the software in some form on my computer for years. I go through spurts where I try to use it. In each instance, I have ultimately shelved the project for months before picking it up again. Now, dictation is a feature of my phone and iPad. I have been willing to dictate short projects and found it to be a good way to get work done.

However, I find the exercise of dictation to be easier for short documents or for lengthy summaries than for substantive writing projects such as briefs and complex motions. Even blog posts are difficult to imagine doing using any form of dictation (However, I am preparing this blog post using dictation software on my laptop.) I have feared that dictating a brief would be inferior to typing because of problems with citation and keeping the document organized as I write it. I’ve actually been afraid of dictating briefs and more complex writing.

Things may soon come full circle If the heyday of brief writing was a time before lawyers would sit down and type out documents, then software may actually be taking us back to a new golden age. Dictation, not to an assistant, but to the technology itself, is becoming easier.

I have had the fortune of being mentored by lawyers who dictate much of their work. These lawyers are good writers. They have encouraged me to dictate. While I do some dictation in a traditional setting, I think there is an opportunity for dictation to the technology itself. I can’t wait to give it a serious shot.

To Be a Better Listener / To Ask for Advice Better

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It’s been a long holiday season, and January’s been a busy time. I’m hoping to re-develop the blogging habit. And I find that I am much better at writing posts when I’m reading posts. Toward that end, I opened up the RSS app and caught back up on my favorite blogs, Simple Justice and Defending People. Scott Greenfield is as prolific as ever. He writes more blog posts before 8:00 a.m. than some people write all year. Mark Bennett is doing some sort of thing where he is numbering his blog posts.

Two of their posts caught my attention. One post is about listening and the other is about asking for advice. To be in a helping profession, lawyers are pretty bad at both. Law school doesn’t help us in the listening department. After all, we are trained to spot issues, to separate wheat from chaff, and to separate the most pertinent components of the fact patterns from the fluff. Clients need us to have that skill. But clients often have other needs — namely to “vent” or have somebody hear their story. A tension exists between those two needs. So, sometimes it’s good to just let the client go. Sometimes, it’s best to direct the story to the most pertinent facts. It’s not always easy to know when to do which. Moreover, sometimes lawyers get so busy that some of us avoid communicating with the client at all (under-communication is a common source of bar complaints). Scott Greenfield quotes Bennett:

Listening is vital to trial lawyers. It’s probably more important than any other single skill, but it is less studied, less trained, and less practiced. Lawyers often don’t listen very well. I’ve seen egregiously bad examples from all sides of the criminal bar; many times I’ve wanted to shake a lawyer or judge by the collar and shout, did you not hear what that person just said?

But the listener is not the only party to the conversation who needs to step up his game. The person asking for advice needs to do some work as well. I very often get calls from colleagues with tough legal issues who want to “pick my brain.” It’s often an honor to be a person whom other professionals might want to turn for advice on how to think about things. It is also an honor to be a person whom a potential client seeks out for help. The best “seekers” of advice do their homework before coming to me. The worst have no real sense of what their problem is and look to you to define it for them. He has three pointers for asking for advice:

before you ask for advice do whatever legal research you can yourself. You’d better have spent some time on the problem before bringing it to mentors. Not doing so is lazy and disrespectful—if your mentors thought your time was more valuable than theirs, you would be the mentors and they would be the proteges. If you haven’t already done a bunch of online research, their advice is probably going to be “get back with us after you’ve spent some time on Westlaw” or Lexis or CaseMaker … or even Google Scholar.

Secondly, you should know the facts inside out and be prepared to answer questions about them before you go to another person for advice.

Third, be able to explain succinctly the problem and be able to explain the work you have done before coming to the person for advice.

* From other lawyers, it can be difficult when a person calls to say, “I’m doing an appeal, and I’m not sure what to do. How do you do a criminal appeal?” I have gotten those calls. They’re maddening.
* From potential clients, it can be difficult if the client does not know whether or how many times she has been convicted in the past, does not know exactly what her charges are, and is not all that certain what the status of the case is.

How to ask for advice and how to listen to a person who needs advice are two great topics for a new year. On this blog, I’m hoping to “listen” more to other bloggers, to courts, and to clients to make this website more valuable. I also hope to use this more of a forum to seek the wisdom of others in a more deliberate way. I hope to get better at these things in my practice as well.

An Initial Problem about Initials

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A lawyer wrote me yesterday with an interesting question. The lawyer is writing a Brief of Appellant where the client was convicted of child molestation. The lawyer’s question was whether it was proper to use the victim’s name in the Brief. Are there any rules or traditions that govern the use of the victim’s name?

Of course, how you label or name people is an important strategic consideration no matter what the age of your prosecuting witness. It is also a strategic consideration when you are referencing the judge in the lower court, the prosecutor, witnesses and other components of your appellate cast of characters. The government thinks about this stuff, also. It’s why your client is called “the defendant” before the lower court and the “appellant” in the Court of Appeals. It’s why you call the person that the State calls “the victim” the “complaining witness” or the “prosecuting witness.”

Most of the time, the trial court is the “court below.” A few years ago, the judge in “the court below” had been removed from office by the JQC, the agency that governs judicial ethics. The whole matter became a public spectacle. By the time that case reached the appellate courts, the lower court was changed to the judge’s name, a name I used throughout the brief. Sometimes, my opponent is the “appellee,” sometimes my opponent is “the State” or “the Government.” Recently, in a case where a DA had met a similar fate to the judge in the JQC matter, the State had a name, too.

When it comes to minors, it’s generally best to be classy and respectful. My default is to use initials. Although how you reference the minor is really a matter of preference as long as the name of the witness is listed in the indictment and is referenced in the transcript. The cat is already out of the bag, so to speak. If the complaining witness is a very young child, and the issue is that she was victimized by folks who influenced her memory and testimony for their own ends, then initials are the way to go. In that instance, perhaps the word “victim” is okay, too. She was victimized by those who twisted her words or memory to lie about  your client. If the complaining witness is older, perhaps a teen, and your defense is that she has fabricated a story for some selfish reason, then perhaps it would be okay to use the name. If you want to emphasize maturity and sophistication, then Ms. Jones or Ms. Smith is the way to go. A “Ms.” sounds older than a first name, after all, and much older than a Miss. But even then, I’d use the same sparingly and for those witnesses with the most serious of palpable credibility problems.

There’s no real rule here. What do you do in these situations? Would love to see some comments in this regard.

Scalia’s and Garner’s New Book Suggests Principled Approach

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Readers of this blog may be surprised to know that I am a Scalia fan. Criminal defense lawyers who don’t like Jusice Scalia just don’t understand him yet. There is much to commend Jutice Scalia to a criminal defense attorney. He penned some of the most significant opinions in the last decade on the Confrontation Clause and criminal sentencing, if you are just judging him by results, which you shouldn’t do.

Results are not the reason to admire a judge (unless you are directly involved in a case and are on the winning side). In fact, you don’t have to agree with a judge’s philosophical approach to admire the judge. It is the fact that a judge has a principled approach to deciding cases that makes a judge great.

Lawyers who represent the accused on direct appeal and post-conviction and lawyers who regularly argue motions in trial courts are accustomed to judges with a philosophical-ish approach. And it isn’t textualism. It’s the approach that consists of finding a way to deny the motion or affirm the conviction because the defendant/appellant is a criminal defendant/appellant. It is the approach that looks to the State’s brief, in its 12 point Courier New glory with every other sentence in bold or italicized, to find a place to hang its hat.

So, Scalia’s and Garner’s book, which is written to encourage better judicial reasoning and decisionmaking, could be a welcome addition to the bookshelves of many judges.

Tony Mauro reviewed Reading Law: The Interpretation of Legal Texts at The National Law Journal. Mr. Mauro notes that the authors accuse judges of “loose and unprincipled decisionmaking that has tarnished the reputation of the judiciary.” And Mr. Mauro quotes a passage that seems to express the books’s central thesis:

The descent into social rancor over judicial decision is largely traceable to nontextual means of interpretation, which erode society’s confidence in a rule of law that evidently has no agreed-on meaning. … [o]ur legal system must regain a mooring that it has lost: a general agreed-on approach to the interpretation of legal texts.

Mr. Mauro notes that the book is “structured as a catalog of the canons of interpretation.” There are 57 of them in all. And the goal of it all is “to arrive at ‘one principled approach’ to interpretation through the analysis of a broad range of analytical methods.”

While many members of the public might see this book as a critique of “liberal” judicial activism or judicial legislation, it appears to be a broader critique of unprincipled judicial intrepretation of legal texts, no matter what motivates the abandonment of principle. Opinions on social issues, such as gay marriage or abortion, tend to make the news more than the daily grind of criminal cases. And it may be that the principled criminal law decision that leads to a bad factual result is the kind most likely to land on a newspaper’s front page. The 4th–6th Amendments of the Constitution die by a thousand tiny cuts. A principled approach to judging could save them.

And, with any luck, judicial readers of this new book will be just as textualist in their appraoch to the reading of transcripts, which could be the topic of another book. The abandonment of inconvenient facts in the record is every bit as big of a problem as the abandonment of the text of the law.

Adam Liptak has also reviewed the book, with an emphasis on how it might predict the outcome of the healthcare case.

Scalia/Garner’s book will hopefully cause judges to think about how they do the job of judging. Some of my favorite judges are the ones who rule on principle, even if in following that principle, they rule against me.

An Update to the Typography Post

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This week, I received an email from Don Roch at Bowers & Roch in Canton, Georgia, in response to a post on a CLE talk I gave on typography.

He took issue with my claim that, in Georgia appellate courts, you are stuck with Courier New 12 or Times New Roman 14. Don did a “double take” because he has been using fonts other than those. He goes on to point out that you can go beyond those two suggested fonts and not run afoul of Georgia Court of Appeals Rule 1 or Georgia Supreme Court Rule 16. Technically, he is right. Both rules are concerned with type size. The former calls for type no smaller than “10 characters per inch.” The rule says that Times New Roman 14 is fine. While the latter calls for type no smaller than Times New Roman 14 or Courier New 12, meaning that you are safe if you use those.

Don is absolutely right.

Thanks for the “catch” Don. I did misstate the rules as being more restrictive than they are. The better way to have said it is that you know you are safe if you go with those fonts. You may choose different ones as long as your font size is otherwise in compliance.

Please, if you do, make sure that you are otherwise in compliance. Get the ruler out before you submit your filing.

Putting it in Context: Or, How I Almost Gave up on Blogging

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I stopped blogging several weeks back. You won’t have to look hard to see a gap in the rate of posts on this blog from July until a few days ago. And if you look at the post I did earlier in the week, you’ll see something worse than no blog at all. You’ll see a spineless report of some cert. grants with no analysis, thought, or expression of opinion. I think what I finally wrote was much worse than what I didn’t write. Then I thought, again, about no longer blogging. Confused? If you are still reading at this point, then let me explain.

A few weeks ago, a person attempted publicly to use some of my blog posts, via a verbatim recitation, against me. They were read out of context mind you. And the tactic didn’t work. Still, it was not fun. The general theme of the criticism was that I was failing to follow my own playbook.

Nothing I write here is legal advice. And I don’t pretend to think that this or any blog could ever be an A to Z guide on handling criminal appeals. Such an endeavor is not possible. And if it were, I am not qualified to pen it. There are certain patterns in the law that arise repeatedly (hence, the need for precedent), but no two clients or cases are absolutely alike (hence, the need for lawyers and a justice system administered by thoughtful listening human beings). So, at the most logical of levels, it is a mistake for any blog writer to think too much of himself when he says anything in this medium. And it is a bigger mistake for the reader of a blog to believe that any writer has all the answers or for a reader to take the words in a blog as anything strictly prescriptive. I don’t have a playbook on paper, on screen, or in my head for appellate success in all cases. And, in case I have suggested something otherwise, my appellate batting average is not 1.000.

Yet, I stopped blogging for a while because public criticism, whether well intended, well founded, and properly contextualized or not, isn’t fun. There’s quite enough of it in just doing the job, in standing up to make an argument for a client who has already been deemed guilty by a jury of his peers, in standing up before an appellate panel and taking tough questions, in the humbling experience of filing a brief knowing that it will be read by a group of very professional and highly critical audience. Why set myself up by putting my opinions before an audience that might not get it, might become confused to see me trying out an idea in one post and later abandoning it in another, and who might use those words in a less than charitable way.

But this question, I have discerned through some discussions with people I respect, is not just a question about blogging. Why engage at all, really? Why write articles? Why speak at CLEs or Rotary clubs or bar luncheons? Why try to explain to people at barbecues and parties what you do for a living or why you are so passionate about it? For that matter, why did you endure being called on in your 1L year or choose to take on a vocation that isn’t always fun and is often quite messy to do?

But those questions are probably bigger than the ones that came immediately to mind. A little too deep. A little too fru fru. The real questions I was asking myself were more in the neighborhood of seeking an excuse. The real question was a question of motivation. And the scarier question was exactly what is the nature of this medium and how I was using it.

I began imagining a spectrum, with a scholarly law review article on one end and with a seedy full-page yellow pages ad on the other (with a picture of me in front some law books and a clip-art scale of justice depicted) and wondering where my blog fit on it.

So why have I been blogging?

  • To find business? I wouldn’t mind if it happened. But there are easier ways, probably, to get business than this. If you realize business from blogging, it’s likely to come over a long period of time from a blog that is credible and by referrals from other lawyers who know and have critically evaluated your work. Blogging is probably the least important way to get that. You earn business one transcript page at a time, one argument at a time, one paragraph at a time. But you can get that through blogging too, if done with integrity. But it isn’t easy, and it is not for the impatient. Better to design the yellow pages ad and get on with what you normally do in the day. The business I get directly from the blog usually comes in the form of requests to represent people for free. The most dreaded words in the law, I think are “I found you on the internet.” Because what follows is typically a story of a purported injustice that I should be so shocked to hear about that I would never consider seeking compensation for my time and expertise to take it on.
  • Fame? On my very best day, it is pretty depressing to click on Google Analytics. I think that a criminal appellate law blog is not exactly a ticket to fame. When people tell me that they read this blog, I’m often tempted to say, “so you’re that guy.”
  • To engage other lawyers, to think a little more about issue so importance, to try out (and maybe discard) some ideas about the craft, and to have fun. Those are the reasons to do this. And there’s one more that comes when I stumble into doing it well.
  • To take risks. Stick your head up enough and you’ll get hit. And in the short term, it’s better to keep your head down. But in the long term it just sucks to do that.

In deciding whether or how to blog, whether or how to practice law, and whether and how to live, it always seems easier and more comfortable to lock the door and close the blinds. But it isn’t very fun.

 

The “Higher Realm” of Practicing Law: Another Post About Steven Pressfield

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At the risk of being annoying about it, I want to commend another Steven Pressfield blog post to you. This one is titled Worthy Thoughts and Unworthy Thoughts. Mr Pressfield has been on the road lately, and he has had to work hard to focus on things that matter. Instead, because he is not working, his mind has been on lower things:

I don’t know about you but when I wake up in the morning, all kinds of incendiary crap is rolling around in my head. Grievances, complaints, bitching to myself. I work myself into a lather over perceived slights and imagined injustices. I just got an e-mail this morning, out of the blue, from a guy who wants me to send him 30 copies of War of Art for free. Should I waste even one milli-second of my time thinking about this? But instead it’s rattling around in my brain like a ball bearing in a pinball machine. Why? Because I’m not working.

If you practice any type of law, appellate law in particular, you probably find yourself in the same situation. You should be in your office with the door closed focused on the structure of the appellate brief that will be soon due or comparing a questionable precedent in your state to trends in other states as you contemplate the history of some area of the law and how your case might fit into it. Instead, you’re busy feeling insulted by the jailer at the front desk who is making you put your cellphone in your car and explaining to someone why you can’t put 25 enumerations of error in his brief. Law has its higher realm and its lower realm as well. And, amazingly enough, when you are doing the work, writing the brief, putting the trial notebook together, interviewing the witnesses, and thinking through the bigger picture on your cases, the other parts of practicing law (lawyers, you know what they are) aren’t as consuming. And, interestingly enough, the opportunities to go off course don’t often come from your opponent, the judge, or the witnesses. The source of insults and pettiness, the stuff that can really bog you down, comes from other places in the practice of law. Let’s just say that, while there are likely too many lawyers, there are way too many non-lawyer who think that they are lawyers. So, if you can’t change it, you can practice in a higher place by doing the work.

So, I will say, as I have said before, Steven Pressfield is the one non-lawyer whose work lawyers should be reading, particularly lawyers who write. He’s made me think about the nature of the work that I do. And he even inspired me to re-read some Hemingway.

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