John Keats was an English poet who produced a prodigious amount of work before dying at the ripe age of 25 from the same affliction that Doc Holliday succumbed to. He was hardly recognized for his work, until after his death, when he became posthumously world-renowned, studied in English classes all over the world, to this day.
Keats coined a term that piqued my interest—“Negative Capability”—which I understand to mean the ability to accept uncertainty or confusion in whatever your pursuit is or in whichever line of work you find yourself, and to pursue it anyway, maybe even for that reason.
But why use my understanding of it. Here’s what Keats wrote himself, in a letter:
“[A]t once it struck me what quality went to form a Man of Achievement, especially in Literature, and which Shakespeare possessed so enormously — I mean Negative Capability, that is, when a man is capable of being in uncertainties, mysteries, doubts, without any irritable reaching after fact and reason….” (emphasis added)
This “Negative Capability” is a mindset, or a skill that can be developed, I’d like to surmise, that might allow us to be able to pursue something just for its own sake, for its beauty, precisely because it is heading into uncharted territory. We pursue it even though there is a very real possibility that at the end, the pursuit will not have a satisfying resolution. And Keats might say that this uncertainty is the very reason to pursue the task.
It takes bravery to do this. How much of what you do in your work—hell, in life—is certain? Short of being a nail-hammerer, in your line of work there are probably numerous contingencies you can try to plan for, too many to count, and after you’ve accounted for those, what about all the possibilities that you cannot plan for, those that were never on your radar because you’ve never seen it before. You don’t know what you don’t know. See the book “Black Swan” by Nicholas Taleb.
I find this notion of “Negative Capability” to tie in, if somewhat loosely, with this F. Scott Fitzgerald quote:
“The test of a first-rate intelligence is the ability to hold two opposing ideas in mind at the same time and still retain the ability to function.”
This ability, seeing both of these opposing ideas in your mind, held up, in all their glitter and blemish, while being comfortable with the fact that when those ideas clash, anything could happen and someone might lose?
Well, that sounds like being a lawyer.
More pointedly, that’s the crux of being able to live with being a lawyer. Many people cannot embrace uncertainty. Indeed, that’s where anxiety comes from—fear of uncertainty—and we all have it. I am no exception. And when it comes to “legal anxiety”, it is hard to let go of the fact that no outcome is ever guaranteed, and I’ll tell clients as much.
For it is one thing to have your own anxiety, and to use whatever coping mechanisms you’ve come up with, poisonous and not, to work through them. But when it’s a client’s—someone else’s—livelihood in the balance, well, how do you cope with the uncertainty of what could happen to them?
You could work harder, of course, but this isn’t Suits—there is no Harvey Specter in the real world, an omniscient legal mind that knows how every case could possibly go, which way it could turn, holding an ace in the hole at the end of every episode, especially one that’s only practiced law for 15 years or so. (To say nothing of how nice it would be to have a boy-genius associate working with you that can read a million words a minute and memorize all of it. Yeah, OK.)
“Look, we can take this case to trial,” I will tell a client, “But there’s no guarantee we’ll win. We can have all the facts on our side, but it can still go sideways, it does not matter how good of a case we put on. Maybe the jury doesn’t like you. Maybe the judge has it out for you. Maybe there are facts yet to be uncovered that could expose you. Litigation is messy, and its stressful, not least because of the uncertainty of the outcome.”
This struggle to hold two opposing ideas in the mind at the same time is good for law school exams. It allows you to write a solid, focused-with-some-meandering, two thousand-word answer to the numerous issues that the professor’s problem presents, and your ability to go down all sorts of rabbit holes to show off your knowledge of the law and how it might affect a factual situation will get you near the top of the curve.
In the real world, however, you eventually you have to pick a side. Don’t you? Don’t we all? Just because you know the possible angles of what you think is every possible outcome, just because you can see both sides… where does that get you? If you do not actually get in the ring, what then?
It feels safe outside the ring. I like staying out of the ring too. But once you pick a side—and a lawyer cannot escape picking the side of the client that hires him or her—now you have to put aside what you know to be your weaknesses. You think your client wronged someone else? Well, you have to defend them anyway. You must take their side, as you swore to do when you received your bar license. You must put on a mask that tries to downplay what your client did, and “win” at all costs, short of ethical or legal violations. Morality may go to the wayside.
You do not get to play both sides in a legal dispute. Even a judge just calls balls and strikes—they take no sides (they’re not supposed to anyway)—and they make a ruling based only on the facts and legal issues presented.
Lawyers must do their best to foresee all the issues that could come up, but they cannot plan for everything. They must embrace the fact that the whole case could go to hell, yet take their client’s side, try to tear up the other side, and stress all the while about where the verdict will end up.
And we must accept that we may lose. We must have the Negative Capability to sit in the balance of uncertainty.
Unless the case settles (which most do), there will be a clear winner and a clear loser. I have been on both sides of that. It is not fun to talk outside of the courthouse with your client after you just lost the case. After all the money they spent on you? After all that work and effort, months, sometimes years, only to lose?
It’s really no different than in life. Only thing is, it’s your client’s livelihood in the balance, not yours. I can lose and beat myself up. But when I feel I’ve let someone down, that’s hard. “If only I’d have done this or that differently,” I mutter to myself, as I drive home to see my family, trying to rid my mind of what happened so I can be present for the dinner conversation.
But then that’s where Negative Capability comes in. And that’s what you must relay to your client:
“You have a decent case, buddy, but as good as your case is, and as capable of a lawyer as I am, we may still lose, and so long as you are OK with this possible uncertainty, then let’s go, full speed ahead.”
Know this upfront. Convey it to yourself and the others involved. Manage expectations, they always say, because it’s a maxim, no doubt.
We control very little of our fate, in life and in the courtroom. But you already knew this. You just have a hard time, like me, of living with the uncertainty of what could be. But the uncertainty will never not be there, so try to remember Keats’ bliss when describing “Negative Capability,” and practice it every day.
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