“I only know that I know nothing.”
I am a big fan of Socrates. After reading Plato’s famous renditions of Socrates’ dialogues in college, I decided to go to law school. It is there, I said to myself, that I can conjure real wisdom, Socratic wisdom. After clearing my mind of preconceived notions and acquiring total knowledge of my unawareness, I imagined a clear, unobscured vision of what is true and just. But when I read Pennoyer v. Neff during my first day in law school (civil procedure), I felt like Pinocchio turning into a donkey. How could such mundaneness have equal stead with the Constitution? I anxiously worried: Is this what law school is ultimately about? But I remained undaunted. On one hand, it seemed somewhat silly to see volumes of caselaw about how to do law, rather than what law is or ought to be. On the other hand, I began to realize that one cannot “practice” law without “practical” knowledge, so to speak.
So over many years, I found a kind of “sub-wisdom.” It came not from law study or research, but rather from living with real world cases. I actually discovered the wonder of civil procedure. Imagine my rapture. Risking permanent geek-ness, I was drawn to methods as much as ideals. I was fascinated with the intersection of intellectual thought and temporal systems, that is, where civil procedure becomes substantive law. Consequently, I stumbled onto the Zen of case management.
Knowing what you don’t know is a precious gift for judges (my non-knowledge could fill a Super Bowl at any venue). Such Socratic perspective allows one to approach a problem with wide-open eyes instead of a made-up mind. Many issues can be better resolved by using the patience it takes to wait for an answer – from a found case, from a fact, from an idea, sometimes just from thinking about it. Lawyers who tackle the difficulties of clients often find it difficult to tackle their own shortcomings, unless they can understand what they don’t know and figure it out. The toughest cases eventually require an intriguing balance of law, intuition, research, non-legal considerations, innovation, creativity and experience. Whatever we lack among these attributes will leave us unwise and feeling lost. Civil procedure teaches us that first things are first. “The larger stones do not lie well without the lesser,” says Socrates. Therefore, case management is the cornerstone of every law practice.
Under the Zen approach, it is taught, “The journey of a thousand miles must begin with a single step.” This is why a modified lawyer-Zen technique seems so appropriate for our constant case challenges. Wonder where to start on that mountain of motions? Sometimes it is better to avoid macro-analysis and wander around to find the best way to organize. “A jug fills drop by drop,” says Buddha. So don’t try to figure it out until the jug is full. More importantly, a Zen approach favors the experiential over the theoretical – deriving knowledge from basic everyday circumstances rather than unseen principles. In other words, let the problem come to you. Could civil procedure be a Zen practice? Not by Eastern standards, but case management is a Zen-like practice, full of calm, resourceful mindfulness. An old mentor of mine would always put the case file on the floor 90 days before trial (or whatever available time). It would lay chronologically, including exhibits, depositions, correspondence, the works. It could cover a whole room or more. In this way, he said, he would always see things he had not seen before, realize something new, find something that needed to be done and have the whole case in his visual memory. His wisdom was knowing how to find out what he did not know. Every lawyer has his or her own way – and a lifetime of practice to develop it.
But we face more common case management problems. Lawyers are often tempted to put the cart in front of the horse, or more precisely, the case management order before thinking about the case with your client and opposing counsel. There are few better ways to get on the wrong side of a judge than lack of planning, especially when that final pretrial tempts one to be like Pinocchio and his nose. Be a Zen-master and look around for insight. It surely is in front of you if you can schedule time to see it. Other helpful suggestions include:
• Lay the case on the floor (see above) – yoga mat is optional.
• Find good case management software – designers are usually from California, so they are very Zen-oriented.
• Read Plato – at least you feel like you are wise.
• Figure out a case management plan for each case – find your favorite techniques, but use your style as well the facts, law and the client to logically adapt the file to fit each case.
• Keep a chronological log of pleadings, correspondence, etc., but arrange the paper by priority rather than date – this will let you get to the motions fast (this even works with software/electronic files as well).
And consider making Socrates your secret, silent senior partner. Understanding your lack of knowledge and being open to change may be all the enlightenment you need to be a good case manager.•
Judge David J. Dreyer has been a judge for the Marion Superior Court since 1997. He is a graduate of the University of Notre Dame and Notre Dame Law School. He is a former board member of the Indiana Judges Association. The opinions expressed are those of the author.