Opening yourself to outcome
The lawyers sat there, stunned. The doctor sat across from them, giving the couple time to absorb the information. Their three-year-old daughter’s cough and fever? Not pneumonia. Cancer. A tumor. A big one, crushing the little girl’s right lung. Rare – a few hundred reported cases. And tough odds. Chemo, a surgery, more chemo. A year-long process and the hope that it doesn’t recur… because recurrence with the particular cancer does not end well.
They had a fight on their hands, a big one. But they were trial lawyers, used to hard battles. This time, though, they needed to marshal the best medical decision-making instead of the evidence. And they needed to stay centered in the face of turbulent emotions.
A fight’s a fight
High stakes. Emotional investment. The ability and desire to affect outcome combined with the inability to completely control outcome. Sound familiar? It is any case in a lawyer’s office, any fight worth fighting. But how does one engage consciously without letting emotional distraction overwhelm? How does one avoid getting so tied to outcome that anything less tarnishes all that follows? We all know how to handle victory. (We strut around singing, “We are the champions…”) But how do we handle loss? And not loss as in, “Darn, I thought I’d do better on this sheet of Scratchers,” but loss as in, “My client won’t get justice, she’ll be destitute, and I sunk years of my life and hundreds of thousands of dollars into the case.”
Old Greek dudes
Philosophers tackled this challenge a long time ago. The Stoic school considered the hard learnings imbued in what we perceive as loss. The Stoics suggest we must know ourselves, that our power comes from within, and that our power over the external is limited. Attaching all hope and glory to the external, then, dooms us to disappointment. Stoic philosophy is popular in military circles. One of the best known modern Stoics was Admiral James Stockdale, who spent seven years as a prisoner of war in Vietnam. Don’t judge him for his much-lampooned vice-presidential debate appearance until you’ve read his treatise, Courage Under Fire. It chronicles his Stanford graduate school work in stoic philosophy and how the learning helped him survive brutal torment.
Stockdale draws heavily on Epictetus, a former Greek slave whose teachings were compiled by one of Epictetus’s students. Epictetus’s thoughts are summarized in The Enchiridion. It is easily found online and a short read. Like anything out of its period, not everything translates. The onion and shellfish metaphor probably meant something then that is lost on us today in the same way that a hip-hop reference to “Bo knows” (something) is lost on a Millennial.
Stoicism should not be confused with stone-faced emotional suppression. The Stoics recognized humans are emotional. But rather than let outside attachments direct our emotions, we let our emotions pass through us and move on. One can work into a lather over something or one can accept the outcome, be one with it, and move forward. It may not be the road we wanted, but it is the road we are on. We might as well try to make the journey interesting. A perfect Stoic might be sick but happy, in peril but happy, dying but happy.
Rage, rage against the dying of the light
A Stoic approach does not translate to simply taking what comes, however. Military strategists, driven to win, would not teach it at the academies were that the case. We as lawyers do everything in our power to tilt the outcome in our clients’ favor. We rejoice when they win. We weep when they lose. We make sure we did everything we could on their cases. And we go on, taking up the next case with the same vigor. For that is the only way. Not to be blinded by winning arrogance or losing ourselves in doubting quagmires. To be aware of the emotional pendulum’s pull and move beyond it. To stay in that moment, not the prior one or the next. A Jedi lawyer, in mind, body, and spirit.
As regular readers may know, the lawyer in the introduction is usually me. This time is no different. As I write this I sit by our daughter, Dylan. She sleeps in a darkened hospital room. Pumps whir gently, one feeds her, others infuse potent medicines. I cannot control whether she will live or die. But we can do everything in our power to tilt the outcome in her favor. I will rejoice if she survives. I will be heartbroken if she does not, despite my stoic efforts. I will know that we did everything we could to help her no matter what the outcome. And we – my wife, our son – will go on living. Hand in hand with her, hopefully. Or with her in our hearts, if we must.
Miles B. Cooper is a partner at Coopers LLP, where they help the seriously injured, people grieving the loss of loved ones, preventable disaster victims, and all bicyclists. Miles also consults on trial matters and associates in as trial counsel. He has served as lead counsel, co-counsel, second seat, and schlepper over his career, and is an American Board of Trial Advocates member.
2022 by the author.
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