THE IDENTITY OF A TRIAL LAWYER – WHO ARE WE?

Stephen D. Heninger

??????????? I have been thinking a lot about the concept of IDENTITY lately. Over forty years as a trial lawyer with thousands of stories that flash in my mind like a school of fish swirling in an abrupt change of direction en masse. Who was I? Who am I? Who will I be? These are not simply philosophical questions reserved for some late-night rumination or taking inventory of regrets versus accomplishments. They are more akin to personal, anatomical x-rays to get under the superficial image and face of the trial lawyer label to examine whether my core values and beliefs are in proper alignment with my actual behavior: my purpose and my passion. Passion and purpose. They are the spine of identity and, just like our physical backbones, they can sometimes get out of alignment, suffer herniations or they can actually maintain stability and function by proper exercise and attention. They determine whether we stand upright and firm in the midst of adversity and challenge or crumple in fear and pain because of a lack of alignment among our goals, purpose and our behavior. I have no silver bullet to give myself or others that will kill the daily threats we all face to our true identity fulfillment. Instead, we have to learn to shoot lead bullets, and lots of them, all the time. No instant magic; just mundane repetition, attention and habit. ????????? Identity is not the same as personality. Charisma isn’t purpose. Anger isn’t passion. We may share personality traits with other people, but sharing an identity suggests some chosen active engagement with the world on our part. We choose to identify with particular values, beliefs or groups. It is a personal choice of marking ourselves as having the same identity of one or more groups and distancing ourselves from others. While we choose which identity to actually assume, identities are necessarily the product of the society in which we live and our relationship with others. Once we embrace and occupy an identity, I believe we should always be more concerned about our life trajectory rather than the medals or scars of our current results. The question becomes whether our self-image, identity, passion and purpose are influencing and guiding our trajectory. Are those traits driving our habits and routines or are our actual behavior habits presenting obstacles to our identity, passion and purpose? Identity combines how I see myself and how others see me. It is not just internal and subjective. It is also external and either supported or diminished by behavioral evidence. There should be a recognizable link. As the author, Anne Lamott, has been quoted: “The evidence is in, and you are the verdict.”

Commencement speakers have a common and banal refrain: “Find your passion in life. Don’t compromise.? When you find something you are passionate about, it doesn’t feel like work and you will never work for a day in your lives.” That’s the heralded silver bullet! But a bullet without a gun to shoot it is just a piece of metal – a desk ornament or conversation piece for a drill sergeant. It takes a gun to propel and thrust that bullet into service. Passion is about emotion. Do what you love. It is an important, indispensable factor in what we do as trial lawyers. However, it needs the oxygen of purpose to give it breath. The mere availability of oxygen isn’t enough. We still have to inhale and exhale. Passion is for you. Purpose is for others. Passion is your WHAT. Purpose is your WHY. Purpose is the reason for your journey. Passion is the fire that lights the way. When our passion and purpose are greater than our fears and excuses, we can find a way to our goals. As one successful company states: “Hire for passion and purpose; there is training for everything else.”

??????????? The same holds true for us as trial lawyers. If we have a firm identity that is governed by passion and purpose we can be trained for the esoteric aspects of improving our trial skills by seminars, mentors and experience in the courtroom. The system of learning, training and practice are tools to serve our passion and purpose. The passion and purpose shape our identity. There is training for fulfilling and polishing those elements.

??????????? I have borrowed (or stolen) thoughts and writings from many people in my journey over the past many years of my practice and I will not shrink away from that effort here. Passion, purpose and identity are just words and their definitions, illustrations or essence can be as variable as our personalities. They are both uniquely personal and universal. One of my favorite observations was made by the artist Pablo Picasso: “The meaning of life is to find your gift. The purpose of life is to give it away.”

??????????? If you are like me, I’m struck by the beauty and simplicity of that quote. However, I’m confused and lost on how to put its powerful force into practical action. Goals are important and we all want to name them and give them an identifiable shape. But goals are about the results or outcomes we want to achieve not the systems or processes that lead to the results.? Creating and practicing a system is important. The purpose of setting goals is to win whatever game is the target of our passion and purpose. The purpose of building a system is to continue playing the game. We do not rise to the level our goals, we fall to the level of our systems. When we fall in love with the process of the system rather than the outcome, we don’t have to wait for winning to be happy or satisfied. We are happy anytime we are running in the system. We love the process just as much, if not more, than the result. The everyday tasks of the system/process fuel our identity, passion and purpose. The outcome is simply the result of a goal achieved at the conclusion of that particular episode of our passion and purpose story. Our system of behavior is the WAY. Is your identity one that is more focused and celebratory for having tried and won a great result OR are you in love with the system/process of preparing for trial and the trial itself? The honest fact is, many of us approach our work with polluted ideas. We yearn for the benefits/results of creative expression but don’t really enjoy the difficulty of the journey to the end point. The result is more valued than the challenge in real time. We want the magic without the preparing, failure and then re-tooling. We know that powerful work is a struggle and requires great sacrifice but we yearn for shortcuts. That’s human nature. It’s not an indictment but it is an obstacle that true passion and purpose can overcome. The obstacle is the way. Lots of us want the noun of “Trial Lawyer” without the verb of the work required for excellence.? To achieve something great, there must be a NEED. A need (desire) that gets its identity from our passion and purpose. “I need to do this. I have to do this. I can’t not do it.” Personally, I can’t imagine not being a trial lawyer. It is my identity. I believe we have to have a NEED and a REASON/PURPOSE for that identity. It explains and dictates why we want a particular outcome and why we are willing to do the work and expend the sacrifice to get there. That purpose can be variable but some purpose has to be present. Picking a lane isn’t limiting. It’s really the first act of empowerment. The lane you pick for your purpose needs to answer “Who am I doing this for? And, “What is the reason for it?”?

??????????? We all have heroes. We shouldn’t just steal their style, we should steal the thinking and work behind the style. We should not just want to look like or impersonate our heroes. (That’s just a Halloween costume).? We should want to SEE and FEEL like our heroes. Heroes die just like the rest of us. They just don’t LIVE like the rest of us. They find a purpose and a passion that is bigger than themselves. They pursue that purpose without regard to the consequences and by exposing their vulnerability to outcomes that are not within their total control.? Brené Brown has a great thought on vulnerability:

“Vulnerability is not winning or losing; it’s having the courage to show up and be seen when we have no control over the outcome. Vulnerability is not weakness; it’s our greatest measure of courage.”

?

??????????? Are we as trial lawyers willing to expose our vulnerability by firmly embracing our identity, passion and purpose even if we are in the presence of adversity, challenge, hard work and sacrifice that is at risk for disappointment or failure? Is our behavior and system of habits in alignment with our identity, passion and purpose? In my mind, there must be a reason and purpose for why “I can’t not do this.”

??????????? Let me offer some high level athletic stories that give some instruction to any professional with regard to our “identities” and why we do whatever we do. Novak Djokovic is arguably (and statistically) the greatest tennis player of all time. In a recent interview inquiring why he felt he had been able to achieve such heights and sustain his success at his advancing age, this is what he said:

“I can carry on playing at this level because I like hitting the tennis ball. There are people out there who don’t have the right motivation. If you find the thing you do for its own sake, the compulsive piece of your process, and dial that up and up, beyond the imaginary ceiling for that activity you may be creating; my experience is the world comes to you for that thing and you massively outperform the others who don’t actually love hitting that particular ball.” [emphasis added]

?

??????????? Wow! The love of hitting that particular ball. Not the grand slam championship accomplishments – they came to him because he just loves hitting that ball in practice, in his head and in the matches themselves. It’s all connected to “I can’t not hit a tennis ball. It is me. All of it. Not just the glory but also the boring (to some) repetition and training system. I can’t not love hitting that particular ball” (my interpretation not his).

??????????? The other story comes from Mia Hamm, the great soccer player. When asked how she explained her success she told a story of a time in her career when she felt too much pressure to succeed that was affecting her on the field performance. Her dad gave her this advice:

“Somewhere between the athlete you’ve become and the hours of practice and the coaches who have pushed you is a little girl who fell in love with the game and never looked back. Play for her.”

?

??????????? Let’s be honest. Desires dictate our priorities. Priorities shape our choices. Our choices determine our actions. We all make choices but, in the end, our choices make us. Not everything that we face can be changed, but nothing can be changed until it is faced. To know myself is to know my core – my identity. Who am I? However, that is not the end of the inquiry we must face. Our core identity is also rooted to something outside ourselves. We also need to ask “Whose am I?” Who am I attached to? My family, my clients, my partners, my professional colleagues, my church, my organization, my friends, my jury, the list goes on and on. “Whose am I and Why?” The answer to that question is my charging station. It recharges my energy and motivation. It aligns with my passion and purpose and gives me fuel for the drudgery some might see in the mundane, repetitive system I work within to be a trial lawyer.? I love hitting that particular ball. I can’t not do it. It’s my gift and I must give it to the world. If I don’t, I’m cheating myself, I’m cheating my profession and I’m cheating the world.

??????????? Most of us spend the majority of our time in maintenance. We’re trained to maintain a system someone else invented or developed. We maintain relationships and work projects rather than build them. We are reactive in figuring out what we have to do in order to get a project done but we don’t spend much time thinking about building our capacity, competence and the opportunity for future work. We live lives of obligation instead of inspiration. It’s one thing to say: “I’m the type of person who WANTS THIS.” It’s something else very different to say: “I’m the type of person who IS THIS.” Every opportunity is attached to a person. Opportunities don’t float like clouds in the sky. They are attached to people. They come into existence because of a connection of people who see a common need, vision, passion and purpose. It’s not just maintenance. Trial lawyers are not just judicial janitors who clean up other people’s messes. We speak and act from our identity based upon our individual (and collective) core values and beliefs. We are passionate and purposeful servants of the law and its lofty goals of justice. We are like soldiers. As the author G.K. Chesterton said: “The true soldier fights not because he hates what is in front of him but because he loves what is behind him.” We don’t fight in courtrooms because we hate defendants or defense attorneys who are in front of us. We fight because we love the rights of our civilized society, safety and the law that is behind us.

??????????? Our individual clients and cases come dressed in different facts, injuries, rights and wrongs. We adjust our strategies depending on the law, our clients’ needs and our adversaries. Such is the nature of advocacy in our judicial system. However, our job is not to chameleon our way through our professional lives to the point where we forget what our true colors are. We must find, embrace and develop our IDENTITY.? We must seek an alignment between our behavior and our passion and purpose. We find ourselves not by being the loudest, most seen or most heard but by being the most seeing and listening.? We face our challenges and those of our clients with a passion and purpose that flows through everything we do in all phases of our work; not just the glorified segments of cross-examination or closing argument. We can’t not hit every ball. (motion, deposition, brief, etc.). We engage in all of it because it is who we are, doing what we love (or for the unlucky ones – because we are obligated to do so). The simple change of one word changes our approach to all the balls we have to hit in every case. What if instead of saying: “I have to write a brief today” we change one word that reflects a more inspirational attitude: “I get to write a brief today”? Who would I be if I didn’t have (get) that opportunity to speak for my client and the law? As Daniel Webster once stated for all of us who are privileged to be trial lawyers: “The law, it has honored us; may we honor it.” Our jobs are a privilege. This privilege presents opportunity for growth in alignment with a purpose that confirms it is worth it. A passion that welcomes the challenge and would be woefully anemic without it. I’m not shilling some simple “positive thinking can change your life” self-improvement attitude. I’m inviting you to join me at truly looking at how we see our own identities and accept the vulnerability of how others see them through our behavior!

??????????? I am not so na?ve as to doubt that many who read this article will believe it to be idealistic fluff. Those of us who feel such introspection threatens our current comfort zone of personal/professional identity will employ “identity – protective thinking” to avoid facing ourselves in truth. Who of us would say we are totally satisfied with our identities and systems and they need no improvement?

That “identity – protective thinking” becomes seeking a way to justify our status quo comfort zone. We switch from our internal scorecard for whether we are fulfilling our personal passion and purpose to an external scorecard of comparison. We compare ourselves to others. “Well, at least I’m working harder than Steve” or “I’m doing more good than so and so.” Passion and purpose are internal and personal. They are not based on comparative metrics. Moreover, we likely have gaps in our knowledge about the goals, passion and purpose of the people with whom we compare ourselves. Comparative metrics don’t prioritize our personal desires and drives for self-fulfillment. Actually, comparison with others will either artificially inflate us or deflate us depending upon the characteristics of who we choose for comparison. It substitutes a window for a mirror (and a foggy one at that). There is a temptation to under nourish our passion and purpose because we’ve been in one system so long and it feels too late to change. Things are okay, not great, but okay. I’m not the best I can be, but as I look out the window, I’m not the worst either.

It’s never too late. (my prayer and belief since I’m now in my forty-fourth year as a trial lawyer) Remember the old axiom: “The best day to plant a tree is twenty years ago. The second best day is today.”

??????????? 1978 was my first year as a trial lawyer. I cannot tell you how many times I sat on the floor of our first house listening to the “Logical Song” by Super Tramp. Most of my audience reading this text will have no familiarity with either that group or the song. Two weeks ago, I heard it on the Classic Rock station while headed to an expert’s deposition. The flood of memories and the provoking of new thoughts is what led me to write this article. I close by giving you the lyrics but, I must tell you, it is a poor substitute for going to Google and listening to it.