Readers of a certain age will remember the Oct. 13, 1992, vice presidential debate between Vice President Dan Quayle, soon-to-be Vice President Al Gore, and a charming, elderly grandpa figure wedged between them named James Stockdale.
As far as popular culture goes, Quayle and Gore have faded from the headlines, if not memory. But, unfortunately, Stockdale faded farther and faster still. If he is remembered, it was for a perceived lousy debate performance. He opened up his turn at the podium by asking, “Who am I?” and “Why am I here?” which, even by 1992 standards, was worthy of extensive “Saturday Night Live” parodies.
What the casual viewers missed or misunderstood was that Stockdale was being rhetorically philosophical, seeking to engage in a conversation about higher meaning. A nationally televised debate, however, was not the right moment for such an existential inquiry. In addition, many viewers also missed (or perhaps glossed over) the backstory of James Stockdale and why he was there.
Stockdale—a graduate of Annapolis and Stanford, retired admiral, former Navy fighter pilot, and recipient of the Medal of Honor—was the highest-ranking serviceman in Vietnam to be held as a prisoner of war (POW). A leader in every sense of the word, he endured seven and a half years of captivity while working tirelessly in unimaginable conditions to actively resist his captivity while keeping his fellow POWs safe and their dignity intact. After the war, he served as an academic, wrote books, and even had a TV movie about his experiences air on NBC.
Years later, when interviewed by researcher and author Jim Collins about his exploits, Stockdale offered a concise analysis of what it took to survive by explaining which individuals did not make it home:
The optimists. Oh, they were the ones who said, “We’re going to be out by Christmas.” And Christmas would come, and Christmas would go. Then they’d say, “We’re going to be out by Easter.” And Easter would come, and Easter would go. And then Thanksgiving, and then it would be Christmas again. And they died of a broken heart.
This is a very important lesson. You must never confuse faith that you will prevail in the end—which you can never afford to lose—with the discipline to confront the most brutal facts of your current reality, whatever they might be.
Imagine the strength, the sheer guts, and the wisdom to understand, in his bones, the delicate nuance between believing you will prevail and also understanding that you must find the strength to endure unimaginably difficult and complex challenges before you get there. I only wish this brilliant concept had some application for our line of work (cue rhetorical sarcasm sound).
Stockdale did not come up with this maxim by sheer brilliance or divine intervention. At Stanford, he explored philosophy as a discipline and was fond of a particular school of philosophy known as Stoicism. At its essence, Stoicism was a practical philosophy that focused on establishing a set of ordering principles that one could study and apply to live a balanced, virtuous life. The most famous Stoic thinker was Marcus Aurelius, a Roman emperor who reigned from approximately 161 to 180 CE (and who was not killed by Joaquin Phoenix when he gave the throne to Russell Crowe—no disrespect to the brilliant Ridley Scott). Aurelius penned what today is referred to as “Meditations,” which amounted to his personal journal and notes to himself, where he reflected on his life, beliefs, and how he coped with internal and external challenges.
At their core, the Stoics believed not only in self-discipline, but also in understanding and accepting the world’s reality (i.e., that bad things happen and that we should expect them). By the time Stockdale was captured at age 41, he was familiar enough with Stoic thinking to have developed his life-ordering (and, frankly, lifesaving) principles, which he then applied to himself and his fellow prisoners during captivity.
Building Litigation Resilience
Obviously, litigation is not a prison camp. Sitting through a nine-hour deposition with a difficult client or having a judge admonish you from the bench cannot compare to the human suffering endured by Stockdale and others.
However, we can learn something from Stockdale and apply it to the betterment of our profession. Drawing on philosophy and wisdom that has been preserved for thousands of years can have a tremendous benefit and impact on our professional and personal lives. To wit, you likely read the same clickbait news articles I do. The legal profession on both sides of the “v.” is under assault from within. There is job dissatisfaction, anxiety, burnout, and languishing.
It is easy to fall into pessimism, and to perhaps ask, “Why do I even try?” Admiral Stockdale’s experience offers a clear answer: because, quite often, we are the solution to our problems.
Let’s unpack what the Stockdale Paradox, as Collins called it, is saying. At its essence, it requires an internal faith that you will prevail, while simultaneously understanding that victory will not be easy. Remember, for us in the litigation and claims worlds, victory and winning are not the same. So much is beyond our control. Victory, for us, should be in the quality of the representation we provide and how we manage, evaluate, and make decisions on our cases and claims. That is not some Hemingway-esque mantra where the victory lies in knowing we caught the fish, even if all we have are bones to show for it. It is more than that.
Rather, we are ethically bound to provide an effective representation for our clients to the best of our abilities, and it is our responsibility not to let internal frustrations or petty grievances get in the way. Additionally, we should not fall into the trap of trading a win for bad form. Wins often happen for no apparent reason, least of all an attorney’s intervention. But how we practice law and what we provide our clients—even if they are not always grateful—need to transcend and be at the forefront of our thoughts when working on a case. By focusing on those aspects of the case that we can control and giving it our best, we may just find ourselves on a path toward a better work life.
We must be confident that we will provide quality representation, and that claims will be evaluated and managed to the best of our ability. We must commit to the faith that we know how to do our jobs and execute our decisions efficiently and do them well. And we must accept, at the same time, that there will be difficult days ahead. Our planning needs to account for these things, and we must truly reflect on what can go wrong. The list incudes:
• Unrealistic clients.
• Uncooperative insureds.
• Difficult personalities.
• Mistakes.
• Bad rulings.
• Bad judges.
• Bad facts.
• Bad luck.
Once we think through the potential eventualities at the start of a case and prepare our minds for these challenges, we can begin our attack. Our own Stockdale-like resistance. Instead of grinning, baring our teeth, and blindly hoping that tomorrow will be better, we need something more substantial: a plan. And that plan has to include a way to deal with the extreme highs and lows of what we do.
We are great at planning out case strategy moves; we need to do the same thing with our internal responses. So, if X happens, then it will cause me to feel Y, and I’ll respond with Z. Planning this out will further build your litigation resilience.
We all know the frustrations and professional angst that befall us at times. Burnout has happened, is happening, or will happen to all of us. Putting an ordered system of values and planned responses into our professional lives may be the antidote.
Before Stockdale, There Was Lincoln
What we can control the most is our mindset. The preferred mindset may be in resisting our natural impulses to spiral down the litigation rabbit holes and instead change how we interact with ourselves and other members of the profession. We are the source of a lot of our problems. We read a lot about lawyers who fail to handle the pressure of the job, but rarely do we see any acknowledgment that our demeanor and our contentious conduct are at the core of the problem.
Here is a positive example from the true patron saint of American lawyers, Abraham Lincoln. There is a wonderful aside in Doris Kearns Goodwin’s classic tome, “Team of Rivals,” that bears a closer look. In the mid-1850s, Lincoln’s clout as a lawyer was rising, he was approached to handle a significant patent case. The client wanted a prominent Illinois attorney because the matter’s presumed venue would be Chicago.
Lincoln was hired (reluctantly) and poured himself into the case—reading, outlining, and preparing for months. Unbeknownst to him, the venue changed from Chicago to Cincinnati. The client then decided to switch attorneys—without notifying Lincoln—and replaced him with another prominent attorney of the era, Edwin Stanton.
Lincoln eventually discovered the venue issue and, when the client would not respond to his inquiries, took it upon himself to travel to Cincinnati to argue the case. Only when he arrived in Ohio did he learn that Stanton had replaced him. He decided to stay and observe the court proceedings, again presumably to offer his assistance if needed. Unfortunately, the client and Stanton were so uninterested in Lincoln’s help that, despite sharing the same lodgings in the city, they would not even invite him to sit at their dinner table. He sat alone, humbled and shamed. And then he left.
Sometime later, the client, feeling some apparent pangs of guilt, attempted to pay Lincoln for his time. Lincoln’s first reaction was to return the check. Only after subsequent prompts did he eventually cash it.
Despite this humiliating experience, Lincoln later appointed Stanton as his Secretary of War, arguably the most important cabinet position. He gave the most significant job to a man who would not even share a meal with him a few years earlier. Why? For the greater good. Think about that the next time you get into a spat over some petty grievance with opposing counsel, or file that aggressive discovery motion, or hit send on that flippant email.
Rest assured; I am no Lincoln—I’ve done all three. But that does not mean there is nothing to learn or reflect on, despite failing to meet the Lincoln or Stockdale tests for greatness. Their importance transcended practicality and political expediency.
Lincoln was able to put aside the recriminations of the past to do what he believed was right in the most difficult of circumstances. Stockdale did the same. No doubt, the examples of each represent more complicated decisions than we mortals can ever comprehend. But Lincoln and Stockdale can give us the little boost and reminder we need when we are rummaging around in the litigation sewers of our own making.