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Sybil Procedure: The role of fear in the practice of law

Sybil Dunlop

Sybil Dunlop

The legal profession is finally waking up to the fact that practicing law is stressful. The ABA is emphasizing lawyer well-being. And a slew of books have hit the market discussing the role of fear in the practice of law, including Heidi K. Brown’s “Untangling Fear in Lawyering: A Four-Step Journey Toward Powerful Advocacy” and Jeena Cho’s “The Anxious Lawyer.”

I felt the most fear and anxiety in this profession as a newer lawyer. I primarily worried about the unknown unknowables: the deadline that I would miss simply because I didn’t know it existed. The filing that I would get wrong because I didn’t know about an ECF rule. I knew myself — I would never violate a court rule or requirement deliberately, but what if I just missed one?

To address these anxieties, I read the rules. I started reading the rules of civil procedure, the general rules of practice, and the ECF guidelines at night. Whatever the rules were governing the case that I was worried about, I read them. And I didn’t just read them once. I read the appellate rules at the beginning of an appeal, during the brief-drafting process, and before oral argument. I knew I needed to keep reading them because I realized that sometimes I didn’t really see a rule — understand its import — until I was doing the thing that the rule covered. I wouldn’t necessarily remember a rule about what color covers needed to be for motions until I needed to put a cover on the brief. But the good news is that my method at least let me spot issues — I generally remembered that there was a rule about the color of motion briefs when it came time to put a cover on it. I just needed to go look which color.

There were still mess ups. I had a brief due in federal court on a Monday federal holiday. I turned to the rules and determined that my brief would be due on the “next day” that wasn’t a federal holiday. It never even occurred to me to look up whether the rules defined “next day.” Except the Friday before the holiday weekend, I had a moment of prescience. I looked at the rule one more time, and realized (with horror) that the rules defined “next day.” According to Rule 6, the “next day” is determined by continuing to count forward when the period is measured after an event and backward when measured before an event. This meant that my (unfinished brief) was due that very day.

The moment of realizing that I’ve messed up is accompanied by physical symptoms. I feel an unseen hand squeezing my stomach and I feel a heat start to creep across my face. But I did act.

I called the court and my opposing counsel and fell on my sword, explaining my failure to grasp what “next day” meant. They said I could hand in the brief on Tuesday. I then explained to the senior partner that I had made a mistake, but that it was already solved. And I returned to reading the rules with new diligence.

But in a way, realizing that errors could happen (and the world wouldn’t end) was strangely liberating. I still lived in fear of missing a deadline but the worry was dulled a bit. My worries were less “wake you up in the middle of the night” worries and more “let’s just double check before filing” worries. A healthier type of worry.

My own process mirrors Heidi Brown’s advice in “Untangling Fear in Lawyering: A Four-Step Journey Toward Powerful Advocacy.” She recommends a four-step process for lawyers to help reframe fear into fortitude:

  • First, she advises that we identify scenarios in our personal and professional lives that perhaps should induce fear but do not, and those that arguably should not, but do.
  • Next, she recommends that we reframe and reboot our mental approach to fear in lawyering—using vulnerability, authenticity and humility to tap into personal power.
  • Then, she advises cultivating an athlete’s mindset toward the physicality of fear.
  • Finally, she recommends that we foster a culture of fortitude in tackling individual legal challenges and in helping others.

As a newer lawyer, I identified the scenarios that induced fear for me (the unknown unknowables), and when I erred, I tapped into humility to confess my error and solve the problem. And an athlete’s mindset toward the physicality of fear? I know that I feel fear physically sometimes (before an oral argument or before a meet and confer that I anticipate may be particularly nasty). But I always plunge ahead. And sometimes I attack the fear directly. I will tell an opposing counsel that I don’t want to fight about something — “it’s fine if we disagree; we can just bring this to the judge.” I will tell a court reporter to glare at me or wave if I speak to quickly. Addressing my fear takes the edge off of it.

But how do we foster a culture of fortitude in helping others? We can forgive the folks that we work with when they err. I have worked with folks who forgot to give me discovery requests after they arrived in the mail, folks who filed things incorrectly and with typos. And while we always chat about what we can do to prevent errors from happening, I also tell people that (1) mistakes are inevitable; and (2) we need to forgive ourselves.

I have a friend who works at a big firm in town. In her very first filing, she missed a single typo in a brief. The senior partner yelled at her after the fact, saying “this is (name of big firm), we don’t have typos.” Of course they do. And it’s that type of attitude—pressure to be absolutely perfect—that cripples people in our profession.

I want to tell each new lawyer that they will make mistakes, as has every lawyer who has come before them. The trick is to learn from the mistakes. And to forgive ourselves and others who will similarly err.

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