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Article by Philip Thomas Featured Author

Posted March 2020

In January I announced I would stop blogging after a final post. Maybe I’ll start back later, but that’s not the current plan.

I have practiced law for 26 years. When I started this blog 11 years ago, I planned to practice for 50 years. I won’t make it. This post is a self-exploration of what changed.

I’ve heard some of the speculation. I don’t have another job lined up. I have no plans to move (before I stop practicing). The chances of those happening in the next year are not 0%, but neither are likely. My life is complicated. Muddling through as a solo might be my best move.

My blog is not as good as it used to be. I know it. It’s because I don’t spend as much time on it as I once did. I used to spend 8–10 hours a week writing blog posts. It’s hard to maintain the quality when that number goes down to 1 hour a week.

People ask me about blogging all the time. Blogging is hard. It takes a lot of time. Having an idea for 5 posts is a lot different from being able to write 50 posts. It’s hard to come up with topics.

Some people don’t like what you write. They let you know. It’s not a great feeling.

There are posts I’d like to have back. Especially when I started, I didn’t have a good feel for what topics I should not write about. It’s easy to fall into viewing page views and chasing them by writing about subjects that garner the most attention. Viewer stats were exciting at first. I remember getting excited when 10, then 50 or a hundred people read my blog. It was neat.

It took a while, but I figured out that writing for page views wasn’t for me. I stopped looking at viewer stats years ago. If people mention my blog, I figured I was reaching my audience — the approximately 5,000 attorneys in Mississippi.

Some lawyers who lost a trial don’t like to see me write about the verdict. I understand. I’m not proud of my losses either. But when I hear about a trial result, I never think the lawyer for the losing side blew it. Litigators are better off having a record of trying cases and losing them than never trying a case.

Litigators are interesting. We wrap our identity in the results of our cases. But we don’t apply that standard to our colleagues. We judge colleagues on diligence, not wins and losses. It sucks that we don’t apply that standard to ourselves.

I’m old enough to have friends who are judges. If they are a representative sample, judges do not judge attorney competency by won-loss records.

It would be disingenuous if I said I did not start blogging for attention. At the time, I would have told you it was to address a deep frustration I felt about ignorance within the Mississippi legal community about the mounting obstacles to litigating cases in Mississippi.

Hard as it is to believe now, a common refrain among defense lawyers when tort reform was enacted was: “plaintiff lawyers will always file cases.” I still remember some lawyers who said that. Not one has thrived in the current environment. Ironically, some no longer practice law. If you think about it, that shouldn’t be a surprise.

According to the Miss. Jury Verdict Reporter, in 2019 there were 0 products liability trials in Mississippi. Zero!

There were 10 medical malpractice trials with plaintiffs going a respectable 3–7. Good luck to the 3 winners on appeal. There were 35 car wreck trials. Most trials were fender benders. There were 10 employment cases. God bless the plaintiff employment lawyers. I took one employment case and vowed it would be my last when at the settlement conference the magistrate advised us to accept a mid 3-figure settlement offer.

Every Sunday and Monday attorneys from Butler Snow and other firms board planes and travel to places where significant litigation is happening. I’m not saying Mississippi should be one of those places. But it’s tough to see when it once was.

I’m not proud of results. I’m proud of work ethic and effort. I learned how to work at age 16 on the underground crew at Coast Electric Power Association in Gulfport. The underground crew put in the buried power lines. My job was to dig trenches with post hole diggers. On my first day, we had a about a 15 ft. stretch of primary trench that had to be dug by hand. We buried primary lines 4 ft. deep. That’s deeper than it sounds if you’ve never dug a 4 ft. hole. It’s the length of the shaft on a shovel — that’s how we measured whether the hole was deep enough. They broke that news the first time I asked how deep I needed to dig. I still had about 3 ft. to go.

I dug the entire 15 ft. myself. I didn’t know it, but it was a test. Usually, others on the crew would chip in and help. But they wanted to see if I had it. It took me 2 hours. When I was done, my hands were bleeding. But I never complained and I never stopped. I arrived at the job that day a pampered outsider. I left a respected member of the crew. Only then did they tell me the stories of the many people who couldn’t hack it.

Not that the job became easy. It was a hard job. It was summer. It wasn’t just digging — you had to go at a minimum pace and had to get sufficient dirt on every shovel or post-hole dig. I wasn’t hazed constantly. But I was hazed, particularly by the crew foreman. Now I appreciate it. There is no way I would have made it to law school, through law school and to where I am without that hazing and that experience.

I used to think I had a work-life balance. Only lately did I understand I didn’t. Work came first. Life came second. As far as where I devoted mental energy, work was always first. I was like that from 1993 to July 2015.

For me, to be the best attorney I could be, I had to let it consume me mentally for long stretches, particularly if a trial was approaching. My wife calls it my ‘turtle mode.’ I go into my shell and mentally disappear. It’s a fair analogy. Anyone who has ever tried a case with me understands.

I was in turtle mode a lot. Too much actually. I have regrets on that, but not on the whole. Work had to come first for me. It wouldn’t have worked for me otherwise.

The journey was the reward — not the results. The journey was litigating cases. I loved it more than anyone I knew. I can’t tell you how much I loved litigating cases.

And now I don’t. It’s okay. But I don’t love it. Even if I did, it wouldn’t be smart for me to do it much longer. It’s not good for me. Not mentally; not physically.

What changed? My wife got sick. 2015 was a hard year. I had hip surgery at end of 2014 and my hip just got worse in 2015. I couldn’t hike, which is my happy place the same way being in the outdoors is healing for hunters or fisherman. I couldn’t even walk more than a quarter mile pain free. I was in chronic pain and depressed. Then shit got really bad.

My wife played on a national championship basketball team at Delta State and is the best female athlete I’ve ever known. In 20 years, I’ve beaten her in horse once. Ten years ago she could still play shortstop. Her having health problems was not something I considered remotely possible.

In 2015 Deb was feeling off. She’d go up a flight of stairs and almost pass out. She had been experiencing terrible fatigue a while. She went to a cardiologist and they did a heart echo. I still remember where I was when she called to tell me the diagnosis of pulmonary hypertension. It didn’t sound that bad. Plenty of people have hypertension. It can’t be that bad, right? Wrong.

That night I researched pulmonary hypertension. It’s a rare, progressive life-threatening disease. It is sometimes called an invisible disease because the person can look fine, but not be well. When I Googled ‘pulmonary hypertension life expectancy’ it said 2.5–3 years. She was 43. Our daughters were 19 and 9.

A week later we were at the Mayo Clinic in Rochester Minnesota. We were there a week and a half and have returned often. At a minimum, we go every summer when our youngest daughter is at camp.

The news was not all bad. We caught it early before she had heart damage. An early diagnosis and treatment doubles life expectancy. Some people live with the disease for years. Hopefully, she will be one of them. But as someone who has spent my fair share of time in casinos and betting my own money funding cases, I’m respectful of the odds.

I’ve learned tough lessons in my life. One is what I want to do when a loved one is sick. My mother died of lung cancer in 1998 and I blew it. I didn’t spend enough time with her. I will have guilt and regret about it for the rest of my life. I didn’t repeat the mistake when my father got sick in 2010. I will never make that mistake again.

So when Deb got sick, I went to the house for a month. I had to contemplate a future in which I may raise our youngest daughter alone. One thing I figured out was that future would not include me litigating cases. I would have quit working until she left for college and sorted the rest out then.

I also had to decide how much time I would spend with Deb and the quality of that time. For the first time, I put family first. It changed me as a person. I stepped back in a way I never had before. Enough to get a glimpse of myself when I’m not consumed with litigation. It was illuminating. It’s nearly impossible for me to be present with my family when I’m focused on litigation.

I take at least 2.5 hours to unwind from work, and that’s only to a point. If I want to be present at 5:00 p.m., I need to be winding down by 2:30.

That’s hard to do all the time. I still revert to hyper-focus on work at times — just not all the time. It’s made me a better person. My mood is better. I’m more patient. I’m more present. I feel better.

When I’m consumed with litigation, I focus on being professional all day. Then I go home and act like a jackass half the time. Usually, I don’t even know it until it’s pointed out. Don’t worry, Deb is not reluctant to point it out.

Bars are full of litigators at 6:00 p.m. Most don’t know it, but they’re trying to medicate with booze to speed the unwinding process.

For 20 years my work schedule was 7:30 a.m. to 5:45 p.m. I did my deep work in the morning and spent the afternoon on the phone, blogging or doing administrative or mindless tasks. If I was busy, I brought work home and worked two hours at night. I usually worked 4 hours on weekends. A few times a year, I worked at least 30 straight days. I went many years without taking a week off at one time.

Not anymore. Depending on my workload, I may start now at 4:30 a.m. The goal is to be wrapping up by 2:30 p.m. Ideally, I will hit the gym and be home and present by 4:00 p.m. I take off several weeks per year.

I had to choose. What is best for my career is not what’s best for me personally. I think I’ve made the right choices lately. But who knows?

If I knew I would practice law for 10+ years without my family dynamic, I would move out of Mississippi. Nashville is the hot destination city, so I’d look there first. I would start over career wise. The work I like doing barely exists in Mississippi anymore. It’s like trying to farm in bad soil. I still may make a big move. But my life-work balance makes it a hard decision.

As recently as a decade ago, I thought I would practice at least 50 years. I won’t make it 35. If I don’t stop before I’m sixty, I’m afraid something bad will happen. I’m in tune with my body enough to know that litigating cases is terrible for my health. If something hurts, litigation makes it hurt worse. I have no idea why. I just know it’s true.

I’ve had 4 surgeries in the last 20 years including a total hip replacement. I’m certain that my job and related stress impeded healing. Some believe stress causes heart disease. It makes sense.

We all know attorneys who had heart attacks at young ages. A good friend suffered a heart attack in court at a young age and had bypass surgery. I can name more than a few attorneys who died or had close calls with heart attacks before age 60. I want to get out before that’s me.

I view litigators differently than I used to. Most litigators are insecure and trying to hide it — myself included.

A litigator’s job is to resolve disputes. But that’s not why any of us became litigators. Litigators want to litigate and win. That’s not necessarily a good thing. There is tremendous intangible value for a client in ending a dispute. It’s rarely considered by their attorneys. I’m as bad as anyone on this. I’m much better at convincing other people to settle their cases than I am convincing myself.

I wonder if we need dedicated ADR lawyers who will not be litigating in the trenches if cases don’t settle. The problem with ADR now is it’s done by litigators, so they litigate in the alternative forum.

The few times I’ve dealt with ‘settlement counsel’ have been refreshing. The cases have not always settled, but settlement counsel’s whole approach and communication style differs completely from negotiating with litigators. The system needs more settlement counsel.

I have a growing fear that litigation changes people for the worst. Not everyone and not always, but the trajectory of what it does to the humanity of the person is usually down.

The reasons for this are numerous and complex. Always being immersed in conflict can’t be healthy. Having to deal with parties who — without exception — are emotional about their dispute is wearing. And as an astute colleague once observed, all the stress is cumulative. It never leaves the system.

Ego is another problem for attorneys. Ego is the enemy of litigators. All good litigators have an ego. I doubt there is an exception to the rule. The best of us can control and manage our egos. Some attorneys with the most trouble managing their egos go crazy.

A lawyer’s relationship with his/her ego seems to change during their career. Many lawyers get better with their ego. Some do worse. A lawyer with a runaway ego seems to stand out more the deeper into their career they get. I hope my ego is not what it once was, but if I’m like most people, self-awareness is not my strongest trait.

But the disease may be curable. I’ve encountered many former litigators who seemed like a burden had been lifted. They smiled more, were warmer, seemed less anxious and uptight and had an all-around healthier vibe.

Ego is not the most damaging trait I see in attorneys — that would be envy. For some, it starts in law school with students at the top of the class and never goes away.

Envy is poison. It’s toxic. It ruins people. I don’t know how common it is. It’s one of the few problems this career causes that I’ve never, or almost never, suffered.

Some people try to contain their envy, but it emerges occasionally.

Attorneys speaking from a place of envy often have venom in their voice. It’s visceral. It’s unfair because it makes the envied person disliked by the envier without good reason. It’s also unfair because the envier would happily trade places–that’s what they’re mad about.

Litigators with big egos are mostly just fooling themselves. Litigators are replaceable.

I am replaceable. You are replaceable. Almost no one is as bad a lawyer as you think. Almost no one is as good a lawyer as they think. Just because someone else would do it differently doesn’t mean the outcome would be different. Hundreds of people in Mississippi can do your job as well as you.

Here’s a take a lot of lawyers will disagree with: trial attorneys peak in their 40’s. I’m talking about as courtroom lawyers. The reason is that it is so physically hard to stay sharp day after day during trial.

Anyone who has tried a case for a week or more knows the toll it takes. I’ve tried cases that lasted two weeks where when the adrenaline crashed, I thought I would never feel right again.

Ideally, trial lawyers should be arguing appeals or in management and consultant roles in their 50’s and 60’s. That would be better for them, their firms and their clients.

The future for career litigators in Mississippi has never looked worse. Other than car wrecks, workers comp., criminal and domestic, litigation is on life support as a practice area.

According to the Miss. Jury Verdict Reporter, in 2019 here is the number of trials in Mississippi by practice area: 0 products liability; 5 premises liability; 4 civil rights; 10 employment; and 10 medical malpractice. Those numbers should petrify defense lawyers.

Attorneys who want to work on more complicated civil cases are waiting on a bus that will never arrive. I am one of those attorneys. Prospects are bad.

I don’t know what my professional future will be. I’m at an inflection point in my career. It was researching for this blog post in 2010 when I fully realized how bad of trouble small firm litigators who want to work on big cases are in. I ended that post with this:

It will be interesting to see how plaintiff firms in Mississippi will look 10–15 years from now. My guess is that we are getting close to an era where plaintiff firms in Mississippi get larger. And while this would cause plaintiff lawyers to lose some of their autonomy, it would put them in a better position to compete for leadership slots in national litigation.

That turned out to be true. When was the last time you checked how many attorneys Richard Schwartz and Morgan & Morgan employ in Mississippi? The numbers may surprise you. They surprised me and I try to keep up with these things. Quietly, the plaintiff firms spending the most on advertising are growing.

My personal life makes it complicated. I want to make another run with a big case or group of cases, but it looks unlikely if I stay in Mississippi. I could leave and have a good chance of working on what interests me, but it might not be best for my family.

I know I want to go out at the height of my skills. I never want to be the old litigator who the young litigators hear used to have it. I will be one of the first in my age group to retire from practicing law. Finances will not be a deciding factor. I still know how to work. I could do it for less money and still be happy.

I took a year off from college and law school. I was poor. I remember two-week paychecks in Montana that were sub $200. It was a great year. I should have stayed out west for several years.

It took practice, but I sleep better on the ground in a tent than in a noisy hotel. I can survive happily on much less than my current standard of living. I’m about to turn 53. Anything can happen, but I will be surprised if I’m still practicing when I’m 60. I see myself practicing 4–5 years and walking away.

I used to have a mental list of attorneys I wanted to try cases against. It’s long gone. My list now is of the trails I want to hike. At least once and as many as 3 times a summer, I hike 60–75 miles in 5 days.

Sometimes I hike in groups of 10–12 hikers in supported treks so we don’t have to carry all our gear between camps. I see other hikers break down physically over the week.

The reverse happens to me. I get healthier and stronger. The last day, I’m passing people on climbs who were leaving me behind day 1. I feel great at the end of the week. Something must be wrong when I start these weeks. It’s stress — it has to be.

I’m a different person when I’m hiking. I even use a different name, my ‘trail name.’ I like that person better than Phil the attorney. You probably would too.

My mother died at 58. My father had open heart surgery in his 50’s. At the rate I’m going, I will too.

My wife has a terminal illness. The clock is ticking. I will not kill myself practicing law just in case I live to 90. I do not want to spend my golden years answering discovery. I’ve got to get my daughter out of high school. Then, we will move someplace I can see a mountain out the window. And every day I feel like it, I go hiking.

I’m not saying you should go hiking. But attorneys should get out of their professional bubble.

Find your ‘hiking,’ whatever it is. Do it as much as you can. Because whatever your hiking is, it will beat the hell out of practicing law.

Post-script from Philip Thomas

My “Last Post” struck a chord with many attorneys. In the weeks after I posted it on my blog, I heard from over forty people. Most were attorneys I do not know. I received emails from attorneys in seven states, including as far away as California and Minnesota. Most expressed having some of the same feelings I expressed.

The part that seemed to connect with the most people was the impact of stress on attorneys’ health and their families. It’s easy to chalk up the adverse physical and mental effects of stress as something we signed up for or something that cannot be avoided in the profession. We chose to become attorneys. But our families did not choose for us to become attorneys and did not sign up for the stress we bring home with us. Many attorneys carry guilt and regret over not being more present and less stressed out for their family and friends.

The profession has long had a mental health problem we are only now coming to grips with. Calls to publicly acknowledge and address the mental health challenges of a legal career are not met with uniform support within the bar. Some people still believe that acknowledging our human frailty damages the image of the profession or opens us up to criticism. It’s an opinion I disagree with.

In my professional career, being an attorney has gone from being a badge of honor to something else entirely. Many in the public view attorneys with disdain as people without moral scruples or character. Perhaps if we attorneys were more open about the stresses we endure as human beings, the public would view the profession as a whole with less suspicion and skepticism.

1. Philip Thomas is an attorney based in Jackson, Mississippi. His practice focuses on commercial litigation, business disputes, and other complex litigation.