Cancer and the practice of law

Massachusetts Lawyers Weekly

June 1996

Harvey A. Schwartz

Rodgers, Powers & Schwartz

18 Tremont Street, Boston MA 02108

(617) 742-7010

As I was rolled into the donut hole on the CT machine that was going to reveal a grapefruit-sized cancerous tumor in my chest I commented to the technician that at that very moment my case was being called for argument in the Supreme Judicial Court. That was Tuesday, November 7, 1995. My preparation for arguing a First Amendment religious rights case came to a screeching halt at noon the day before when my doctor called and solemnly told me to meet him at the hospital right away.

"Bring your toothbrush," he said.

"Bring your toothbrush." Those of us who cut our legal teeth doing court-appointed criminal defense well know that portentous phrase. When you told your client to bring his toothbrush to court you were telling him he wasn't going home for a while.

Cancer focuses the concentration. It is the ultimate meditation. It sorts out the important from the trivial. Cancer changes the way I practice law. I think more lawyers need cancer, curable cancer, but at least life threatening curable cancer. An epidemic of curable legal cancer would bring instant civility to the bar and would make practicing law more pleasant and more rewarding. Or maybe it would convince many of us that practicing law is not how we want to spend our lives.

How does cancer focus you? Think of the lawyers we all know and can't stand -- present company excluded, of course -- whose idea of litigation is to search for the picayune after uncovering the obscure, who rest soundly at night only after the tenth day of the plaintiff's deposition has exhausted the witness' memory of every course she took in college, every sneeze she ever sneezed and every person she ever spoke with. Think of the lawyers -- present company still excluded -- who think assenting to an additional week to file a pleading is as disloyal as selling their client's virgin child to pirates. Think of the lawyers who can't separate themselves from their clients, the opposing party from opposing counsel, lawyers who equate politeness with weakness, civility with frailty.

These lawyers need cancer. These lawyers need to share my experience having my photograph taken by Massachusetts Lawyers Weekly as one of the ten Lawyers of the Year ... and going home that evening to shave off the last whisps of hair on my head, losing my beard and seeing my chin for the first time since 1967, courtesy of the first round of chemotherapy. Those of us who used to feel that standing in front of a jury came as easily and naturally as breathing, after coming face to face with cancer realize we've taken breathing too much for granted.

So if cancer is such a great thing for a lawyer, what does it give you? My life hasn't rushed past my eyes these last months, it has crawled, an event at a time, a decision made, a decision not made, opportunities taken and untaken. And thoughts about the law and lawyers, thoughts about being a lawyer and not being a lawyer.

Being a lawyer is OK. The law and medicine and art and music and carpentry are all OK. None is better than the other; it is how we do them that makes the difference. So many lawyers are unhappy lawyers because of the way they do the law. They do the law with anger, anger at other lawyers, anger at themselves for representing the clients they represent, anger at being a small part in a large system. There are probably plenty of angry carpenters, too, but we don't hear as much about them as we hear about angry, unhappy lawyers.

If you practiced law as if your doctor were going to call you tomorrow and tell you to bring your toothbrush to the hospital, would you feel better about being a lawyer? Probably. If you knew the case you are working today on could be your last case, your last opportunity to do some quality legal research, your last chance to stand in front of a judge and argue for your client, your last chance to identify yourself as a lawyer, how hard would you try? How much would you care that your last job was done well? If today's conversation with opposing counsel were to be your last conversation, would you act like a jerk and be remembered forever after as a jerk?

Sure, you don't have cancer. I hope you don't even have an ingrown toe nail. And sure, I expected to beat my disease and keep on keeping on for as long as I feel like keeping on. And sure I don't expect today's case to be my last one, not if my family is going to eat. What I am talking about is a goal, not an accomplishment. What I am suggesting is that you consider, for a moment, your own mortality. Cancer leaves you no choice but to answer questions we spend our lives afraid to ask. Questions like, "Have I screwed up this life I've been given?" Questions like, "Have I spent the last twenty years doing what I wanted to do?" Questions like, "Am I proud of what I've done so far in life?"

I urge you to sit down and ask yourself these difficult questions. Pretend you have cancer. Put yourself in my hospital bed, in your mind, for a moment. Try it. Its scary but try it. Ask the questions. Try it now. Do you think asking yourself these questions could make you a better lawyer ... or a happier one?

Of course I don't really want more lawyers to get cancer. I simply urge you to take the time aside to force yourself to ask and answer the questions that will come into your mind when mortality pokes its head in the door and stares you in the eyes. I'm satisfied with my answers to these questions and that satisfaction has given me strength and rejuvenation. I'm proud to be a lawyer. I'm proud of the nobility of what the law lets us do. My cancer -- now that its history -- was a gift. I suspect, however, that with some effort you can get the gift without the cancer. Give it a try. Be selfish. Take the time for yourself to speak with yourself.

By the way, while you're asking yourself difficult questions, thinking about the worst that could happen to you, I urge you to ask a few more, just in case. Try this one: "Is your disability insurance policy in place and ready to protect you?" Mine wasn't. Here's another to try: "Will your partners (employer) support you financially and emotionally, more and better than you could possibly imagine, if something awful happens to you?" Mine did.

I'm back at work now. My doctor is strutting around as if he's the one who made my cancer go away. Sometimes medicine does work. My struggle now is maintaining that cancer state of mind, that heightened consciousness my disease gave me, and avoiding falling back into my pre-cancer habit of working too much and too long, of getting overwhelmed with the minutia of being a lawyer and losing sight of the majesty of it.

I'm struggling with this. I hope I'm winning this struggle. My fear is that the memory of cancer will fade. So if you should happen to call me and ask if you can have another week or so to get me some interrogatory answers because you are coaching your kid's soccer team and time has gotten tight and if I should hesitate for even a moment, please nudge me, I'll say sure you can.