Transcript: LCA President Michael Ehrenstein interviews Deborah Perry on Resiliency

LCA President Michael Ehrenstein interviews Deborah Perry on Resiliency

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Michael Ehrenstein 00:01
And good day. My name is Michael Erenstein. I am the current president of the Litigation Council of America, and I’m joined today by my friend Deborah Perry, also a senior fellow in the Litigation Council of America, a great lawyer, and a partner at Munch Heart in Dallas.   

Michael Ehrenstein 00:20
Today, Deborah is going to be speaking with us about the concept of resilience in our profession, why it’s important and how we can develop it and also pass it on to the next generation. Deborah’s background is particularly supportive of the concept of resilience because, as you may hear from her today, she not only has tried and is involved in huge commercial litigation matters and unbelievably large and complicated commercial restructurings and bankruptcy cases, she’s also a leader within her firm.   

Michael Ehrenstein 01:11
And in that capacity, I’m sure, has the opportunity to deal with issues surrounding resilience from her younger colleagues. So with that introduction welcome, Deborah. 

Deborah Perry 01:29
Thank you, Michael. Happy to be here.

Michael Ehrenstein 01:32
Always great to see you, and I’m really looking forward to seeing you in person really soon. 

Deborah Perry 01:37
I am hoping to be there. I have a docket that Thursday, and so I’m trying to figure out how to deal with that. But if I can be there, I will be.

Michael Ehrenstein 01:49
Okay, well, I could always file a motion for continuance for you. 

Deborah Perry 01:53
There you go. I may be, or we may be able to do it via zoom given. Given all those opportunities that have appeared during COVID for remote hearings. 

Michael Ehrenstein 02:06
So let’s get into it. Let’s talk a little bit about resilience.  

Michael Ehrenstein 02:13
What is it? How do you define it and why is it important in our profession? 

Deborah Perry 02:18
I think it’s a good question because there are many different definitions of resilience. And from my perspective, it is the ability to accept an outcome, take from that outcome the lessons that you can apply later on and then move on from it. 

Deborah Perry 02:43
And that is probably the hardest. But the most important part is being able to move on from something that, frankly, I think it’s fair to say is traumatic. When we have a loss in the courtroom or a loss in connection with a deal.   

Deborah Perry 03:07
I feel that we minimize the impact of that on our psyche. And so resilience to me is being able to accept, learn from, and then leave it in the rearview mirror to some extent and move forward, applying those lessons we’ve learned, but looking at them in a positive framework and moving forward in our practice.   

Michael Ehrenstein 03:33
So you’ve just very eloquently stated what in my world is, is a much simpler concept. Resilience to me in the fighting world was you get punched in the face, you end up on the floor, and you’re resilient enough to stand up again and keep going.  

Michael Ehrenstein 03:54
But your definition actually is much more, I think. Elegant and accurate, because it’s not just about being tough. It’s about being tough and being real and learning from the mistake or learning the lesson.

Michael Ehrenstein 04:16
So if I was getting punched in the face, I probably was doing something wrong, right? There was a lesson there for me to learn. Maybe I didn’t learn it every time, but eventually you get punched in the face enough, you learn it.

Michael Ehrenstein 04:31
In your definition, though, you are not just learning from it, but you’re being real about it. One of the things that you said that caught my ear was we sort of minimize the impact on our psyche when we have a loss or a bad outcome.

Michael Ehrenstein 04:52
And the truth of the matter is, it happens to all of us. Anybody who’s been in the practice for even a little while is going to experience a loss, and it can be soul crushing. It can be really debilitating. 

Michael Ehrenstein 05:10
Are you suggesting that we not minimize the impact on our psyche and that we confront it?

Deborah Perry 05:18
I am, and I liked your analogy. I was actually thinking about this in my preparation, and I thought when I think about going into court, I do think of it sort of like a gladiator going in. 

Deborah Perry 05:31
Like you’re going in to fight in the arena for your clients rights. And, you know, particularly as like, a woman. I mean, I’ve never I’ve never been hit, thankfully. I didn’t do a lot of teen sports when I was growing up. 

Deborah Perry 05:48
I was worried about A and the arts and things like that. So I haven’t sort of physically had that impact. But I thought it’s similar. It is similar in a lot of ways. And I think and I agree that we just shouldn’t we shouldn’t minimize the impact, because I think of it sometimes it’s like it’s death by a thousand cuts sometimes, especially depending on if you’re if you have a case. 

Deborah Perry 06:13
And I you know, we’ve all had these where every hearing, every discovery fight is a battle. And so you’re are getting nicked up one after another after another after another. And I think those are some of the hardest ones because it goes on over the year or years of that litigation. 

Deborah Perry 06:38
And we shouldn’t minimize what that does to you. Face it, but then try to gain more perspective from that. And in connection with that, realize that you’re not alone, that everyone goes through this. 

Deborah Perry 06:58
I feel like even when you are with a big firm and surrounded by people, you can feel very alone. In the moment of a tough case.

Michael Ehrenstein 07:14
There’s a lot to unpack in what you just said. Let me kind of break it down into a few steps. 

Michael Ehrenstein 07:21
One of the things that you said is we shouldn’t minimize the impact to our psyche, which to me sounds like we should be real with ourselves. We shouldn’t dilute ourselves into thinking that each one of these little nicks or each one of these punches we take to the face doesn’t hurt. 

Michael Ehrenstein 07:42
If that’s the case, if we’re going to be real about it and be honest with ourselves and honest with our colleagues. How would you describe the impact of, of these losses or these nicks that we face when we’re not real about it? 

Deborah Perry 08:08
That’s a good question. I think the way I have looked at it in my practice is I feel like I should be able to control all the outcomes. I think a lot of lawyers are controlled briefs, right, and perfectionist. 

Deborah Perry 08:24
And so we take on so many things where we say, okay, if I could have just done this a little bit differently, then maybe the judge would have ruled this way. If I could have done this a little bit differently, maybe this discovery outcome would have been different. 

Deborah Perry 08:37
There’s a lot of this sort of Monday morning quarterbacking, if you will, and certainly there are times when, yes, we could have done something differently and maybe we made a mistake or the strategy we picked wasn’t the best strategy. 

Deborah Perry 08:54
But many times in hindsight, we are not putting ourselves back in the place we were when we made that decision. And I think to me that is key. And I would say this to younger lawyers, when something has happened in your case and you’re further down and you’re like, I really wish I had done this differently. 

Deborah Perry 09:16
Well, sure, now that you have this additional information, but what information did you have at the time? And you have to be real with yourself there too, because if you have the information, then you have to accept like, all right, maybe I should have done that a little bit differently. 

Deborah Perry 09:29
I’m going to learn from that on a go forward basis. But I say most of the time, at least for me, I have to remind myself, well, you didn’t know XYZ when you made that decision, and there was no way you could have known that, so you couldn’t have made that decision back then. 

Deborah Perry 09:44
So you have to be real with what were you working with and what can you control? I feel like I also sort of think I should be in some ways. Superwoman here. Like, I should just be able to power through it, like, just keep going. 

Deborah Perry 10:03
And I think some of that comes from my parents are from the Midwest. They have a very stoic sort of sensibility, and, like, many of us, we just sort of think, if we can just if we can just buckle down, if we can just get clear, we’ll be able to push through it. 

Deborah Perry 10:21
But I think that leads to if we don’t address it, it piles up. Those nicks pile up. And then you find yourself in a mode where you can kind of get almost paralyzed in your case of moving forward.

Michael Ehrenstein 10:40
Or even it sounds like even worse than being paralyzed within the case itself. 

Michael Ehrenstein 10:47
You become almost depressed. I suffer from the same control freak construct that I think most lawyers do. I should be able to control this. And the reality is you can’t control everything. I should be able to have made a better argument. 

Michael Ehrenstein 11:13
I should have if only I had said this in that moment. Hindsight is always perfect, right? But if we continue to beat ourselves up over these things, and you don’t have the ability to be real and open up with your colleagues about this is something that was a problem, it really can lead to more than just paralysis in the case. 

Michael Ehrenstein 11:43
It can lead to real depression and mental health issues, I would think, especially because, like, you, many of us have that stoic. Not going to let the other guy see that when he punched me in the face, it really hurt. 

Michael Ehrenstein 12:01
Right? I’m going to get up and keep fighting because that’s my job. That’s what I’m trained to do. Can you share with us an example of an instance where you really were challenged by a case or an outcome and you needed to dig deep to find the resilience to continue performing? 

Deborah Perry 12:35
Absolutely. And before I turn to that, I just wanted to touch on one thing that you said, because I absolutely agree. I think what this does lead to, if you don’t address it, is depression and anxiety. 

Deborah Perry 12:46
And we know that from studies that in the legal profession, we have a higher level of lawyers of depression and anxiety, alcohol abuse than the general population. And so I do think that’s one reason why it is so critical to try to address these issues and also talk about these issues with our younger colleagues so that hopefully they can learn from our experience and have better outcomes and also just be more open. 

Deborah Perry 13:24
So let’s turn to I had a case several years ago that was very challenging for me. It was a litigation case. And not only did have opposing counsel who was incredibly difficult to work with, I also had a client who was not very sympathetic. 

Deborah Perry 13:48
And I had a judge who, because of the nature of the claims and who my client was, was certainly not predisposed to my client. And in hindsight, I certainly understand that in the moment, you’re in there fighting for your client, and we zealously represent our clients. 

Deborah Perry 14:13
So it was difficult because how I found myself was, all right, I have a client that’s unsympathetic. I have opposing counsel who’s completely unrealistic, and there’s no chance of settling this because of the amounts that they’re asking for. 

Deborah Perry 14:34
And there were other claims that could be brought. This is the type of case where clients settled that just could open the floodgates for other claims by this lawyer, for similarly situated plaintiffs or other lawyers to kind of blom on, even if you keep the settlement confidential. 

Deborah Perry 14:56
But the most difficult part of it was that I didn’t feel like it was an even playing field, because I was in a forum where it just seemed clear to me that it was such an uphill battle with the judge. 

Deborah Perry 15:19
And I personally have never had an experience like that where I felt like I was not only battling on the front with opposing counsel, but also sort of battling on the front with the judge, him or herself. 

Deborah Perry 15:36
And that really struck me to the core of being a lawyer, the legal profession. And I just knew every time I would get up and have a hearing that I was going to lose. So. Faced with, how do you get up psychologically, when you know you’re going to lose? 

Deborah Perry 15:59
How do you go in knowing you’re going to take the beating, essentially? And psychologically, how do you do that? And what I had to kind of come up with was, how do we define winning? What is winning in that situation? 

Deborah Perry 16:17
Because I knew I was not going to win the hearings. It was not going to happen. Maybe I wouldn’t completely lose, but I knew I was going to win. And I think that’s very difficult to grapple with, but basically, that’s how I did it. 

Deborah Perry 16:34
Okay, how am I going to redefine winning? I am going to preserve every point for appeal that I can here. And so I had to shift my focus to what is prevailing within the context of this piece of litigation. 

Deborah Perry 16:53
What can I do? And that, to me, was incredibly helpful to kind of reset and just understand what I can control and what I can’t, because every case is going to be different as to what you’re able to control. 

Deborah Perry 17:08
And there were just so many elements that I had to just accept, which is part of this. With resilience one of the steps is like accepting things. I had to accept that. And that was very helpful to me in that case, in that particular case, which was, I would say, one of the most difficult cases of my career, where I certainly had some dark nights that I think we can all identify with. 

Michael Ehrenstein 17:37
Yeah, it’s it’s amazing. I guess one of the it’s a blessing and a curse to have the ego that you need to have in order to be an effective trial lawyer sometimes. You need to believe in yourself, and you need to be able to think, at least partially, well, I can control this, and I can advocate this, but in reality, we can never control as much as we think we can. 

Michael Ehrenstein 18:09
We’re just not that important. And when we have this sort of perfectionist complex, it does great harm, maybe not just to our own psyches, but to our clients as well, because we can’t effectively define the victory for the client if we’re blinded by the perfectionism that says we have to win in every instance, in every moment.

Michael Ehrenstein 18:41
I think what you said was really great, though, about finding a way to get yourself up psychologically to be able to go and walk into a battle that you know you’re going to lose because you know that you’re going to win the war or you’re aiming to win the war by preserving every error that could support your client on appeal. 

Michael Ehrenstein 19:11
Was that a tactic that you kind of came up with on your own? Or were you given did you talk about this case with some other people that maybe gave you some insight and helped you discover this strategy to deal with the challenges of that case and to grow your resilience? 

Deborah Perry 19:40
It’s interesting, especially since we’re doing this through an LCA webinar. But I’m I brought up the issue at one of the LCA conferences a couple of years ago. I was in the breakout for the Complex Commercial Litigation Institute, and I can literally still remember where I was sitting. 

Deborah Perry 20:04
I can remember the room. I can remember sort of the pit in my stomach of I was going to sort of be vulnerable and bring this up,  even though these were many people in that room who I knew, and we had mutual respect, but some I didn’t know. 

Deborah Perry 20:23
And I brought it up. I just said, how do you guys get up knowing you’re going to live? How do you do that? And one of the first people to speak up was Bill Wagner, who is a past president of the LCA and just a titan in the field. 

Deborah Perry 20:45
And I miss him a lot. He passed away last year. I think of Bill when I’m in tough situations because he was always just brilliant and a great strategist, but like the best person and so ethical and a lawyer. 

Deborah Perry 21:05
I would aspire I still aspire to be like and he said, “Well, I’ve absolutely had that situation.” I had a case where I was in a forum like that. We had to fly out there. And he said, I can remember walking in there. 

Deborah Perry 21:22
I can remember how the courtroom looked. And I knew that this was what was going to happen. And he said, you know, one way I got through it was I wrote Breeze at the top of my legal path. And to me, that was just an amazing I was so, like, impressed that he shared that. 

Deborah Perry 21:47
Because here is someone who’s accomplished so much, so revered and well regarded and something so simple, but so humble to share that and put that there. And I do it sometimes on that legal path. I put breathes at the top and I always think of Bill and it made such a difference. 

Deborah Perry 22:10
And we talked about how do we frame winning? How do we do that? It made a huge difference. And there were other people in the room who spoke up. I had a couple follow up with me because I had a hearing the next week, checking to see how did it go? 

Deborah Perry 22:30
And they said this should be a topic at some point. How do you deal with these things? And it was so I don’t know the right word, even though I’m a lawyer, but it just was so comforting to know I was not alone, that here were people that I hold in such high regard who had experienced this, understood it, empathized with it and could help strategize about it. 

Deborah Perry 22:59
And after that, I felt so much better. And I think that’s one thing that from a resilience standpoint is important. Have people that you can have these conversations with. Sometimes they’re inside your firm. 

Deborah Perry 23:16
But don’t underestimate the power of people outside the firm who may have had exposure experiences but have your people and be open and vulnerable with them.

Michael Ehrenstein 23:34
What’s the downside of being a little vulnerable? 

Michael Ehrenstein 23:36
What’s going to happen? Right? We’re also afraid to let anybody know that I haven’t won every case I’ve ever tried. Really. So what’s the downside? We let somebody know that we’re human and at the end of it we walk away fortified because hopefully they’ve given us some some good insight. 

Michael Ehrenstein 23:57
I know it took it wasn’t a natural thing for you to do when you were at the CCLI meeting to go, I’m getting my ass kicked every day and I really am struggling with this. How do you guys suggest I get around it? 

Michael Ehrenstein 24:14
But you did it in front of the right group. The LCA and the CCLI are full of caring. Not just great trial lawyers, but people who are good people and care in our firms. We have to really try to encourage the youngers to carefully select their mentors and with whom they’re going to be sharing this kind of information.

Michael Ehrenstein 24:46
But they have to share it, otherwise their practices can go sideways along with their mental health. So summing up a little bit from my end just to recap. The importance of resilience in being able to continue with our profession when we’re facing daunting challenges is critical for our own well being.

Michael Ehrenstein 25:20
And the way that you’ve gotten there is by having the courage to share the challenges that you face and by being kind enough to yourself to realize that, well, we really can’t control everything and we’re not perfect and we should pick up, have a little mental flexibility. 

Michael Ehrenstein 25:44
To learn what we can from the experience and then move on. Fair? Did I get it?

Deborah Perry 25:49
Yeah, I think that is fair. And I think when we started talking about this or maybe we talked about this ahead of time, we all tell the worst stories where there’s a great outcome, there’s sort of the Ah ha! moment, but we don’t necessarily tell the stories of the case pieces that were hard. 

Deborah Perry 26:11
And I think it’s important to do that. As I have practiced, I guess as the years have passed in my practice, I have seen sort of the importance of a personal story and personal statements to people because that is more impactful sometimes than just objectively speaking about something. 

Deborah Perry 26:39
And an example of that would be, I guess it does play into resilience. So I’m the co chair of our women’s initiative group and we were in a session talking about a variety of things. But I did mention one time case I’d had and I had a witness that made sort of, let’s just say an off color inappropriate comment to me after he testified and I kind of let it roll off my back, whatever. 

Deborah Perry 27:11
I mean, he’s not going to impact my career but it wasn’t great. I didn’t feel good about it. And I kind of later on wish I confronted him about it. But I mentioned this and it was really just more empassing because it wasn’t something that I thought of as particularly important in my career. 

Deborah Perry 27:31
But later I had several people come up to me and say that really mattered to me because I couldn’t believe that could happen to you. Because I will say I probably have a bit of a persona of don’t mess with me. 

Deborah Perry 27:51
And so the takeaway for some of the younger female attorneys was like, well, if that can happen to her, like, if it happened to me, I certainly didn’t bite that because we know Perry. Whatever, and so that really struck me because I am also not someone who really wears their heart on their sleeve, and it takes, as you put courage to kind of be vulnerable and talk about some of these issues. 

Deborah Perry 28:21
But I could see the positive impact that that made, which is another reason why I think we really have to think hard about how we are mentoring our younger attorneys. And I’ll give an example from as a first year lawyer, not at my current firm, full disclosure, I had a case with a lawyer who was really tough, and I did a lot of work for him, and this is right when I started. 

Deborah Perry 28:50
So we had responses to interrogatories, request for production, request for admission, and he asked me to do verifications for each one of us. Okay, so that’s a little odd because you only have to verify derogatories. 

Deborah Perry 29:04
So I’ve written this down. So I go down to my office, and I’m like, this doesn’t seem right. So I go back down to his office, and I said, I just want to make sure my notes are right. He said to do verifications for each one of these. 

Deborah Perry 29:13
And his response was, I didn’t ask you. I didn’t ask you to think about what you were doing. I just asked you to do it, please. So that is not helpful. That is an example of not helpful. Right. But when something like that happens to you as a first year attorney, how are you going to approach the rest of your career? 

Deborah Perry 29:39
I mean, I look back and I think, wow, I think that probably had a much bigger impact on me than I imagined, because basically, it was like, don’t ask questions. And if we’re not open to our younger attorneys asking us questions and having that open door policy, how can we ever expect them to ask us really tough questions? 

Deborah Perry 30:06
Right. Which is why it’s important, and it’s hard. We all have bad days to really think about how you’re mentoring people and then also to share these stories so that then people feel open sharing their stories and can figure out who the right people are to talk to when they have an issue come up. 

Michael Ehrenstein 30:31
Yeah. Sharing the stories of the losses is something that I think is important, but is really difficult to do because, first of all, you lost. You don’t want to end up having to relive it when you’re sharing with them. 

Michael Ehrenstein 30:46
Listen, when I try a case, when I win, I’m depressed when the case is over because my adrenaline is gone. When I try a case and I lose, I’m down for a couple of days, and I don’t want to come back into the office and start sharing with everybody how I’m feeling about having lost.

Michael Ehrenstein 31:12
But I guess in listening to you, it’s something that I should that we all should consider doing, even if it’s a little bit painful to relive it because of the benefit that the next generation can get from hearing it. 

Deborah Perry 31:36
And I think it’s important to approach it as, this is what I learned from this. You know, you can always put a positive spin, a constructive spin on it. But I think it’s important to sort of pair those two things. 

Deborah Perry 31:51
And I think that also leads me to another strategy to employ with respect to resilience, which is, I think I know that for myself, I have a hard time reminding myself of the really great outcomes because I expect myself to generate great outcomes, which is a little bit ridiculous, I have to say. 

Deborah Perry 32:18
But I kind of have that expectation. The bar set so high. And I think some of that also just like how you’re raised and sort of I was raised, this is what we do. We accomplish things and this is what we do. 

Deborah Perry 32:36
This is like ground zero here. And I think it’s important, especially when you’re going through a tough case, to remind yourself of the cases that went well and also to think through what made that case go well and are there any strategies that I employed in that case that I can carry over to this case that might improve this case? 

Deborah Perry 33:01
What was it about that case that made it successful or enjoyable? Because we’ve all had cases that we really enjoy. Is that because of the client? Is that because of the claims? What is behind that? And sort of try to overlay that onto tough case and then also think to yourself, I really enjoyed those cases. 

Deborah Perry 33:27
How do I get more of those types of cases? We don’t always choose our cases, but sometimes we have opportunities to shift our practice more focused on one area or with one client. Or a couple of clients. 

Deborah Perry 33:42
And because I think we’ve sort of been talking about resilience and all of some of the negative things. But to me, what I have found, and I think COVID really made me think about what’s important to me, and I think it did that for a lot of people, was my docket. 

Deborah Perry 34:04
What do I want my docket to look look like? And which cases do I enjoy the most? Which cases am I the best at? I’m good at a lot of things, but what am I the best at and what do I get the most joy from? 

Deborah Perry 34:17
And I realize we don’t always have the luxury of picking our cases, of course, but I think it’s important to really think about what we enjoy from the practice of law and try to put more of that on our plate. 

Michael Ehrenstein 34:34
Or even when you have the challenging case, find the joy. If you have a case. Speaking for myself, if I have a case that comes to me and I can’t find some aspect of it that makes me want to be in the fight, like to really want it, I don’t take the case. 

Michael Ehrenstein 35:05
It’s just not worth it. It’s not worth it. I’ve taken hard cases with really difficult facts, difficult clients, but if they’re there has to have been something in that case that made me go, this is the thing that I’m going to get my joy out of or my that’s going to fire me up.

Michael Ehrenstein 35:28
This is the thing that is going to keep me going in every one of them. Otherwise it’s not worth it. So I think that’s also an important strategy in terms of resilience is to. Even when you’re in that tough case, there is something in that case that you can grab onto that makes it worth it. 

Michael Ehrenstein 35:50
There’s got to be. Otherwise you shouldn’t be in it.

Deborah Perry 35:52
Absolutely. And I think we as lawyers have a hard time, especially as younger lawyers. And again, I recognize we cannot always use our docket, but whenever I’ve had a case come in where I’ve been a little bit, my gut instinct is like, they’ll take this and I take it. 

Deborah Perry 36:12
Those are generally the worst cases

Michael Ehrenstein 36:14
Your gut was right.

Deborah Perry 36:15
And not necessarily like the worst outcome, but just the worst cases to deal with. Right. So I always trust your gut instinct and to the extent you can try to find clients and cases that align with your values because I think that’s another thing that, at least for me, kind of came out of COVID what can I do in my life to have my life be in more alignment and balance? 

Deborah Perry 36:45
And some of that is alignment with your core values. Because I would say the cases that I have enjoyed the most, the ones that have gotten me fired up, are when you have clients that align with your values and it’s just so much more enjoyable. 

Deborah Perry 37:05
Right. Because that part of it. That’s one aspect. So this kind of goes back to control, to the extent you can control that aspect of it, try to.

Michael Ehrenstein 37:15
Sure. Absolutely. So summing up, is there anything else, Deborah, that you would like to share with us about resilience before we wrap up today? 

Deborah Perry 37:28
I honestly think we’ve pretty much covered it. The last thing I would say, and what I’ve heard been saying throughout, is just to remember that. You’re not alone in this. We, as lawyers all face these issues, and we are stronger together and when we talk to each other about them than we are on our own. 

Michael Ehrenstein 37:52
Agreed? A million percent. Thank you very much for taking the time to speak with us today. Thank you for having the courage to share about a topic that is not comfortable. It’s not a war story about how we won. 

Michael Ehrenstein 38:13
It’s something about the reality of our profession that sometimes it’s just really tough. And I think you’ve given us some good insight and some good tools to use to be resilient when we’re dealing with the tough cases. 

Michael Ehrenstein 38:32
Thank you for your time.

Deborah Perry 38:33
Well, thank you for asking me.

Michael Ehrenstein 38:35
Appreciate it.