In Episode 7 of Lawyerpreneur, David Kempston and I talk about his two books, That’s Why They Call It Practicing Law and Lessons Learned on the Run; the importance of having a restorative place to recharge; how writing a book about lawyering led to opportunities he hadn’t expected; and more.
David Kempston has been running and practicing law for most of his life. Now his written books about both of those pursuits. While we discuss both of those things in this interview, perhaps the most important thing we talk about is what of person goes running when it’s -29 Fahrenheit with howling wind when a polar vortex hits Minnesota.
The Convergence of Running, Creativity, and the Practice of Law with David Kempston
Jeremy Richter: Welcome to Lawyerpreneur, where we discuss the alternate paths that allow lawyers to engage their entrepreneurialism and distinguish themselves from others. Because being a lawyer doesn’t have to mean doing business as usual. I’m your host, Jeremy Richter. My guest today is David Kempston, who is a worker’s comp lawyer from Minnesota. He’s also been running for 40 years. And today we’re going to talk about both of those things. He is the author of two books, That’s Why They Call It Practicing Law and most recently, Lessons Learned on the Run. David, welcome to Lawyerpreneur.
David Kempston: Thanks, Jeremy. It’s great to be on your show. I appreciate a chance to speak with you today.
Jeremy Richter: I’m really excited to do this. My very first question is I saw in your book Lessons Learned on the Run that you went running during the polar vortex last year when it was negative 29 degrees. As a southerner, I don’t like running when it’s positive 29 degrees. So I guess the first question is why?
David Kempston: You know, it’s a great question. And I wrote a chapter on that in my book, Lessons Learned on the Run. And the reason that I like to run outside all winter is you got to redeem the time. And when you live in Minnesota, winters are dark. I mean, they’re dark everywhere, but it’s cold and it’s dark, and there are less hours of sunlight. And if you let weather crowd you inside, then you’re missing out on so much that the environment has to offer. And so I snowboard, I walk dogs outside, but I’ve run outside all winter for a number of years. And yeah, a year ago in January, we had the polar vortex and it was minus 29 ambient — that wasn’t air temperature and I actually have a live photo on my iPhone and you can hear the wind, you can hear the wind going in the background — so I don’t know what the wind temp was. It was really cold. But yeah, there’s a great saying. I think the Norwegian said that there’s no such thing as bad weather, just inadequate clothing.
But after I moved here, I just decided at some point, hey, you got to get outside. You got to start taking advantage of the weather and my wife would always talk about the benefits of fourth of the four seasons and in that you experience And something different in each of them. And it’s, and I finally it clicked. And I finally swung around to her way of thinking. And you think about what CS Lewis said about friendship in the Four Loves. And he said that each friend draws out a different element of our personality, a different facet, if you will. And he was referencing I think, Tolkien when he said that, and maybe I’m confusing a letter or an article he wrote later about that friendship was something that was in the Four Loves, but you know, there’s just more to experience. If you’re a literature student, it’s the foil, you know, the coldness of winter contrast with what he meant at summer. So that’s a long winded answer to say, Yep. I love to run all year long.
And as a lawyer, you just want to be prepared and if you are prepared, then you could face the elements. My wife and I, I went to college in Santa Barbara, California. And that was a long time ago. I’m now 52 years old. I’ve lived here for three decades, long enough to keep you know to contribute four children and three grandchildren to the general population. But in the early years, I didn’t like the weather. I always say that four years in Santa Barbara will wreck anybody because it’s the perfect climate.
Jeremy Richter: Well, I can appreciate that to some degree because well, so I have a young family and I haven’t run with any regularity in the last four or five years. But before that, I ran pretty regularly, and did some half marathons. Nothing, you know, too extreme but enough that it was how I stayed in shape and I really enjoyed it. But I just abhorred running on a treadmill. I would rather not run than run on a treadmill. So I can appreciate.
David Kempston: The short answer, the alternate answer is I’m fragile. I’m not an Iron Man, and my body wears out. I don’t do well on treadmills.
Jeremy Richter: Well, I’d always intended to run a full marathon, and still would like to do that at some point. But I kept getting injured during my training for half marathons with every one that I did. I think I did five, I got some different sort of injury that kept me from being able to push that training further.
David Kempston: Sure. And that’s very common with a lot of runners. You know, I think that a marathon is much, much harder on your body than a half, not just the distance but the preparation that goes into being able to pull it off. You know that so often I hear from friends and just anecdotally that people get injured as they prepare for a marathon. And that was my own experience. So it’s not that there’s some magical distance I wrote about it in my book, That’s Why They Call It Practicing Law, Winston Churchill wrote a wonderful book called Painting as a Pastime. And I get such a kick out of Winston Churchill. I’m listening right now to The Last Lion by William Manchester on Audible. It’s a great elegy and the man was prodigious, you know, and he had a wonderful saying that he loved it. It’s good for lawyers. He said, “There’s no good time to take a vacation. So take one anyway.” Okay, well, if a guy who’s prodigious in his writing and his statesmanship and, you know, take time to take time, we should too and in this book called Painting as a Pastime, it’s a collection of his oil painting. And I’m no art critic, I’ve heard that they’re reasonably good. They’re not top shelf, but they will draw a decent amount of money at a sale because Winston Churchill painted them.
But his whole point is that a person needs to have two or three bona fide hobbies, things that are utterly disconnected from work. And he says that, you know, to be to be truly happy, a person needs to have these other activities that they pursue from time to time, because he talks about the frenetic pace of the mind. And he goes on to say that a change is as good as the rest. So hearkening back to the running that you used to do, I always say, you know, running is cheaper than a psychiatrist. And I think that that’s true, as long as you don’t get hurt all the time. You know, but you need to have things that you do that help you recreate things that you do that take you away from your business or your practice of law, things that you do that give you energy and refresh you.
Jeremy Richter: In your book, you talked about having a restorative place, which I think is what you’re talking about here. Is that space running for you?
David Kempston: It is. It’s not just running, but there’s something about running, and my wife has teased me for the last 30 years. She’s like, you have this weird, emotional connection to running that is not rational, David. When I was about nine years old, my dad was training for a race in Spokane, Washington, where we lived at the time called the Lilac Booms Day Run. It was about eight miles at the time, and he wanted me to run it with him. So we started training together and I ran with my father for many, many years and since that time, I’ve since gone on to run with five generations. My grandpa would pedal his bicycle with me when I ran; he didn’t actually run he just was more my my Sherpa. And I push my grandchildren, on many, many a run, and I run with my peers and I’ve run with my children, most of whom won’t run with me anymore. But, you know, so I do, my wife is correct. There’s this deep connection to running. But that said, it’s not that running is the thing. It’s that for me, running is the thing. And I think that’s true for everybody, whether it’s painting or walking or reading or some other activity, whether you’re a lawyer or a business person, it’s so important to have other things that you do that work different areas of your brain because back to the quote that I beat to death, a change is as good as a rest. And we’re all too busy. I know in the COVID season, you know, saying we’re too busy. Maybe I’m six weeks too late, but prior to that, we were too busy. And my guess is, you know, a couple months hence, will be too busy again.
Jeremy Richter: No, I think that’s really true. And I think lawyers — it is difficult to take vacation, it’s difficult to turn things off. Because if you, I think particularly in a billable hourly practice, like I have, like I think you have, you can get really caught up in that mindset of, if I’m not working, that I am, in some ways actively losing money that I could otherwise have. And it’s easy to get caught up in that. For me, early in my career. I would not do any creative writing. I would not do any of some of the other things that I wanted to pursue, because I was just caught up in this mindset of, well, if I’m not billing, even on Saturday morning, or, you know, Sunday morning before church, like I could be and I’m taking money out of my pocket or my firm’s pocket by not doing it and it was really difficult to turn that off. Obviously, you do. You’ve written a couple books. You have a regular running practice. How have you have you been able to sustain that practice of pursuing these other things?
David Kempston: Well, a friend of mine used to say that boundaries are easy to set, but they’re hard to enforce. And I think that that’s true. One thing is, you need to be reasonable in setting a goal. You know, sometimes I’ll have friends I’ll say, Well, I’m going to start running an hour a day, or they’re going to go from 0 to 60. I don’t do anything right now, but I’m going to start exercising for an hour a day, or I’m going to start reading for an hour a day. And I think you have to move incrementally. You know, don’t bite off more than you can chew. Don’t pick something that’s unrealistic in terms of what you have done thus far compared to what you want to do you have to ramp up. That said, you know, there’s a great saying, “Dependability is the best ability.”
And along those lines of consistency, Gretchen Rubin wrote a book called Better Than Before. And she says in that book that keeping up is easier than catching up. And if you’ve ever tried to shed winter pounds, you maybe don’t have a warm climate up here in Minnesota, you know, even though you’re active during the winter, you’re not mowing your yard, you’re not outside anywhere near to the extent that you are in the summer during the darker winter months. But I think just carving that time I’ve come to realize, you know, for me to be effective as an attorney. And my goal when I use the word effective, I want to be fruitful. If you think about your lawyer friends, Jeremy, or your lawyer acquaintances, you know, lawyers tend to be people who complain about how busy they are, or like to brag about how much they work or that they never took a vacation. I don’t hear things like discussions about how fruitful people are, you know. I mean, you know. You work in an insurance defense firm. Say you bill a jillion hours a year, but your clients only pay you for 10% of those hours for whatever reason, well, that’s not very fruitful. You know, if you are a plaintiff’s lawyer who’s like me has a contingent practice and you’re chasing pie in the sky by-and-by, and you’re trying lots of cases, but you’re getting your teeth broke off in most of them, and not recovering anything again, you’re not being fruitful. And I came to realize that, for me to be fruitful, I need to be balanced, whether that’s decent sleep, and then, you know, pursuing some hobbies, having some relationships.
I had an epiphanal moment when I was in my early 30s. I was miserable. And I actually made up a list of things that Dave used to like to do, because I had three little kids at the time and worked all the time and was pretty wretched. And I made a list of things I used to like to do and there was about five things on there and I decided, you know what, by golly, I’m going to start doing these things. And I started doing that. But I do think that consistently. And being realistic is important. You have to prioritize. You know, some people can do things at different times throughout the day, but for me, especially if it’s a work day, if I want to be exercising, I got to do that in the morning, otherwise at the end of the day I’m too burned, it’s not going to happen.
Jeremy Richter: Yeah, I always found the same thing to be true for me. If I was going to have an effective run, I really preferred to do it first thing in the morning. And it’s the same thing has been true in writing that first thing in the morning when I get up, so whether it’s writing fiction or nonfiction, it doesn’t really matter. That is my most productive time of the day is in those early morning hours while the rest of the house is still quiet and while most of the world is still asleep. That’s the most productive time of day for me, regardless of, you know, whether it’s running or writing or whatever creative pursuit, and I think it’s really important to know that about yourself, because while that’s true for me and while it’s true for you, there are other people who are going to say, I really feel like I’m at my best at, you know, nine o’clock, and that’s when I want to go run and shed the day or whatever. And it’s just you’ve got to know your own body and figure that out.
David Kempston: I agree. And that is something that changes, I’m 52 years old, and I don’t have the same body that I did when I was 28. I don’t even have the same sleep or eating patterns. And so I think it’s wise to understand that you know, things do change, they may change imperceptibly or they may change like this latest season of COVID life, all of a sudden, boom, things are really different. And you have to be flexible. So even though I preach consistency, and I do really adhere to that you need to be consistent. That said, you got to be flexible. You must realize that things do change.
Jeremy Richter: Have you found that pursuing these other creative outlets has helped you to be more fruitful and fulfilled in your practice?
David Kempston: You know, it’s interesting, because the answer would be, yes, but not the way I thought. You know, it’s funny, we always we chart a path and then it goes a different direction. And so I write a book on lawyering, which really is my philosophy of lawyering. And it’s really about maintaining the client relationship and the premise there is that you know, clients don’t always recognize a good lawyer, but they do always usually recognize good customer service and they respond to it. And i’m i’m not saying hey, don’t know substantive law; don’t master your area of the law. I mean, be excellent. Be an excellent attorney. As a technician, know the substance; know the procedure. Be excellent. But on top of that, then understand that the heart of the practice of law is a relationship is called the attorney-client relationship, and really work on improving that relationship because clients are going to perceive the way that you that you treat them as being good lawyers.
So I write this book and I, I guess I didn’t — my wife asked me a great question, “What do you think this is going to do for you?” And I was hoping I’m going to be a New York Times bestseller. Oh, it’s great stuff. No, that’s not what happened. I’ve had some modest sales. But what it’s done for me, Jeremy, is it’s opened up a lot of opportunities to speak to different groups. It’s been really fun because I’m a work comp lawyer. I’ve been a plaintiff work comp lawyer for about 24 years, was an insurance defense attorney for a few years prior to that. And I speak a lot but I speak in the work comp realm, that’s my area of expertise. So this has been fun because it’s launched me out into a larger lawyer world where I’ve been going to the Minnesota State Bar Association. I’ve spoken to lots of different groups, not just attorneys. I’ve spoken to financial planners. I’ve spoken to vocational rehabilitation providers. I’ve spoken to lots and lots of student groups. And that’s been really fun. So, yeah, it’s opened up a new chapter in my practice that I didn’t see coming.
You know, and what’s interesting is I had the running book I just put out about a month ago, so we’re still fresh in the process. And I don’t know that that will open up another venue like the lawyer book, did I hope so. But for me, just to just to think through and articulate, you know, you write, I know you’ve even got a novel in the hopper. So, you know, those just to work on finding that voice and expressing truth with that voice, it’s a different voice than say, brief writing or arguing in the courtroom or letters to clients or communication with experts or letter to other attorneys. It’s just a different voice. And so it’s fun to — I mean, fun, silly F word, but it is fun. I mean, it’s refreshing.
Jeremy Richter: Yeah. Well, I think your perspective in, That’s Why They Call It Practicing Law is really important because client relationships aren’t something that lawyers are trained on. It’s not something that a lot of times we’re very good at, and communicating to clients and potential clients about how we can help them. It’s also something that typically, lawyers don’t do very well. Because we try to focus on ourselves and our credentials, and all of the things that we think either make us important, or that the client wants to hear, but really what they need to hear from you is that you know how to identify their problem, and what you can do for them. And I’ve written a lot about those things. And I just think that that perspective is really essential.
David Kempston: You know that the two things and I just thought of this, this is what happens on my mouth goes and then like — but I’ve often lamented the fact that law school doesn’t ever teach anybody how to listen. You know, I keep a little list of barriers to listening. And I have a note card. The other six barriers that I identified here, the first is talking. When you’re talking, it’s hard to listen to someone else. And the second one preparing to talk. This is what happens when you go to law school. Rather, they teach you how to argue so you go home and every conversation you have, you’re ready to argue. Mentally arguing or preoccupation is another one. Poor environment. We’re working on something else, you know, all of those issues that are preclude us from listening to someone else.
And the thing that I just realized was that there’s a thread between my two books. Not just me. Sure. Not just my experience. Yeah. But you’re running in a sense as a way of listening. And what I mean by that is, when I run, yeah, I have my iPhone on me. And I have my Apple Watch. And I’m kind of keeping track of the metrics a little bit. But I’m not usually trying to. I’m not trying to email clients, not trying to text my parents. I’m not trying to follow up with my children, other than just out running and observing and, in a sense, listening. And that’s where I think our learning happens. And with clients, you know, I’ve been doing this for a long time; people come to see me or they come to see a work comp lawyer. You know, for years. I didn’t ask them, “And what brings you to see me at this point?” it took me I don’t know 18 years of plaintiff practice to start asking that, you know, because before that I knew well, I’m an expert. Of course they’re coming in, they got a problem, and I’m an expert. I’ll fix it for him. Yeah, I’m an expert in the area I practice, but doesn’t mean I’m a good mind reader. So why don’t you be quiet and ask the client, what in particular is it that brings you here today?
And, you know, so back to running, I mean, there’s an element of just listening to yourself when you run and there’s a, what I found is that, for me, running is a time of tremendous creativity. I wrote a chapter on this in my running book, I there’s different theories on why we’re more creative when we run. But you know, it’s interesting because, you know, as I run, oftentimes, themes or ways to present a case or a particular way to deal with, especially if I got a deposition coming up that day or something, you know, how am I going to go at this expert How do I want to present this? No often gel into place. And I found that to be remarkably helpful to the point now where sometimes I’ll just upload stuff as I’m getting ready and then you know the next morning and go for a run and it will really gel and I’m not saying last minute preparation here, but it’s part of my process and really helps me to think things through I think it’s because my brain’s finally listening to the information that’s in there.
Jeremy Richter: Well, on the topic of listening, there is at least one law professor out there who is teaching this to her students. I don’t know if you’ve come across Jennifer Romig, who’s at Emory University, but she has a blog, Listen Like a Lawyer, which I think is a little bit tongue in cheek. But she writes a great deal about listening. And so there’s somebody out there that has recognized the same problem as you and is actively pursuing a solution.
But I wanted to ask you, what was the motivation for writing your first book, the lawyering book, because it’s a lot of work. I know that. You mentioned having the same aspiration of becoming, you know, a New York Times bestseller, you know, that comes across everybody’s mind. And I just released my third book a couple of weeks ago, which I had — I was working with my cover designer, and she was helping me through a bunch of it. We were talking about whether I was going to make it a book for all business people who have client-facing businesses, or just narrow it down to being more specifically tailored to lawyers, which is what I ended up doing. Because, you know, I thought, well, if I make this for all business people, maybe I’ll become the next Seven Habits of Highly Effective People or whatever. But then I brought it back to my niche because that’s the people I communicate with regularly. And that’s, you know, I adopted what she told me. And she said, look, you can eventually build up enough of a backlist and have enough books that you come to be a dominant force in this niche. Or you can write a much broader book that doesn’t find an audience anywhere because it’s not for anybody specifically. So we all have different ambitions and motivations when we write and it’s a lot of work and it doesn’t have a lot of immediate reward all the time. So I just wanted to ask you, what was your motivation to writing your first one?
David Kempston: The first book really was a compilation of my philosophy of litigation because if you read it from start to finish, it really is about the relationship and in so many ways, it’s about what I call dumb Dave stories, you know, all the things that I did wrong in terms of litigating. I’ve tried a lot of cases, I’ve tried over 400 cases. And granted, most of them are administrative law cases. So it’s not 400 jury trials, but I’ve tried a whole lot of cases, and I always say that’s why they call it practicing law. They don’t call it perfecting law. They call it practicing law. Because theoretically, if you’re willing to learn from your mistakes, you can improve what you do over time. And taking care of the client was impressed upon me by my boss. And so the lawyer I went to work for many years ago, and it just jelled, and I gave it initially as a seminar a couple of times, and it just was in my head and I kept talking about it, my wife finally said, “Well, you should write about it.” so that began the process. And, you know, I had about half in my head as a seminar, but as you know, it’s very different to take something that you speak off the cuff on and then put it into form for someone else to read.
But I wanted to do that and, you know, was able to do that and finish it off. And in many ways, it really is my philosophy of litigation that and it doesn’t at all undercut advocacy. I know, not at all. But if you nurture that relationship, and take care of it and tend to it while doing the other lawyer things, it really puts you in a better spot. So the other part of it was that I really, I believe in this, you know, it’s not peddling some snake oil. And here, you do this. And, you know, this is the three easy steps to success because it’s not that at all. I mean, these are some of these things — nothing in there is rocket science. I think Alexander Pope said many years ago, what oft was thought and ne’er so well expressed. And I’m not saying that that’s where my lawyer book goes, but it’s a good distillation of principles that if a person puts in the application, it’s going to improve what they do.
Now similar to the discussion that you had with your personnel a while back, my son is graduating from Baylor in about three weeks. I guess we won’t, there won’t be any ceremony, but he’s waiting. And he’s a double major business and professional sales. And he just has laughed at me, “Dad, could you have picked a more narrow audience?” He’s like, “This is a great book about customer service. How come you aimed at lawyers?” Yeah. It’s like, well, honey, that’s, you know, that’s my audience. That’s who I know, I wrote to the people that I know. I wrote about a context that I know. You know, when I was an English major, a long time ago, I took a seminar class on William Faulkner. And Faulkner, he had a couple initial attempts at novels that just weren’t that good, until he came up with Yoknapatawpha County in Mississippi. And, you know, he was told, hey, write about what you know about and that way, there’s going to be truth. You’re going to have an authentic voice. You’re going to have something of value to offer. So I hear what you’re saying, you know, who is your audience. Whether we’re speaking to a jury, to a judge, to a client, to an expert witness, or we’re speaking to a book reading audience, we need to know who were aiming at.
Jeremy Richter: That’s good. Whether it’s other lawyers or anybody else who is considering writing a book, considering some other creative endeavor, but is a little bit hesitant to jump into it, what advice would you have for them?
David Kempston: I think it’s great to explore book writing. I think Solomon wrote in Ecclesiastes that in the writing of many books, there is no end, or something to that effect, depending on which translation you read. That’s okay. A well-written book with good thoughts put at a level where people can access them. That’s a useful thing. So a great saying, “If you don’t know where you’re going, any train will get you there.” You know, you need to have a plan. And it’s not ever enough to have a plan; you need to execute your plan. And that goes to like you said, you know, when am I creative? How am I going to do that? You know, there’s, there’s some great lines about writing a book, you know, someone said, writing the first draft of a book is like filling a swimming pool one teaspoon at a time. or writing the first draft of a book is like pushing a peanut across a dirty floor with your nose. And I think those things are true. And then so you get it done. And then then what you got to do is you got to be willing to kill your darlings. What do I mean by that? You know, there’s another great saying, “You better be brutal with your own writing, because absolutely everybody else will be.” You’re gonna float something public. You better get some good input. You better have a good editor; you better have some good content people, and you better have some good proofreaders and all of that to help you pull it together tightly. And I think that, you know, and then the pace at which you go, that’s going to be totally up to you. I mean, some people just grind through things and other people take years and years and years. And I don’t think that the ultimate product has anything to do with whether you’re a grinder who gets it done in a short period of time, or you take a protracted period to accomplish it. I don’t think that matters. I think you got to work within your system.
Jeremy Richter: That’s really good. We are out of time for what we’ve got today. But I want people to be able to find you and find your books. So whereas the best places for them to do those things.
David Kempston: Now you can go to LinkedIn — David Kempston — I’m on LinkedIn, that’s a great place to go. You go to Amazon, just Google my name David Kempston books, and you’ll find That’s Why They Call It Practicing Law or Lessons Learned on the Run. Either of those can be easily accessed that way.
Jeremy Richter: All right, great. Thank you for coming on to the show today. I really enjoyed it.
David Kempston: Thanks a lot, Jeremy. I appreciate you well.
Jeremy Richter: If you’ve enjoyed the show, you can support it by rating it on Apple podcasts or wherever it is you’re listening. And make sure to subscribe so you don’t miss anything. You can also support the show on Patreon at patreon.com/lawyerpreneur. Thank you for listening.