In Embracing the Dying, One Lawyer Enlivens His Practice

By Fiona Smith – Daily Journal Staff Writer

SAN FRANCISCO — Death is never far from Timothy Tosta’s thoughts. But the land use attorney is far from morbid — in fact, he’s using what he’s learned to inspire some of his colleagues to live fuller lives and maybe even practice law a bit better.

It all started when Tosta was diagnosed with cancer and given two years to live. That was 16 years ago.

He was a tough, aggressive and successful lawyer, he said, but he realized the success had come at a price. He’d often been an absentee father who told himself he’d “live life” later. He embarked on a soul-searching odyssey — immersing himself for years in philosophy, psychology, Eastern religious theory, yoga and meditation.

In that time, his skin cancer went into remission. But instead of putting his brush with death behind him, the 59-year-old Tosta puts it front and center every day. It’s why he looks forward to his weekly visits with terminal hospice patients and it’s why he’s suggested something unexpected — lawyers have a lot to learn from the dying.

He first got this message out when the California State Bar’s Real Property section asked him to speak at its annual retreat last April. Tosta took the ideas and experiences swirling around in head and decided to go out on a limb. He told the 80 or so lawyers in attendance about the loving relationships he’d developed with dying cancer patients and how this had not just made him appreciate each day of his life, it transformed the way he practiced land use law.

“I tied the elements that I saw in dying into the way I saw people responding to large-scale development … it sounds a bit of a stretch, but what I started to see was people’s response to large-scale development reflected the same kinds of fears I saw in people that were dying,” he said.

Changes brought about by development are like a little death for the affected community, and that’s why people often fight against it, Tosta said. Rather than automatically approaching the community as an adversary to be won over, Tosta said he now encourages his clients to suspend judgment and really listen and engage with the community.

“His insight came from an experience most lawyers don’t have and because of Tim’s success, I think people decided to listen,” said Elaine Andersson, regional counsel for Boston Properties, who arranged for Tosta to speak. “He’s not some new age thinker coming in and telling us to do stuff. Tim is practicing in the real world and dealing with the real world.”

He’s been practicing law for more than 30 years, representing developers in major office, hotel, residential and mixed-use projects such as the Crescent Heights and Infinity towers projects in San Francisco’s South of Market neighborhood. Tosta also helped the Bacara Resort & Spa in Santa Barbara, which faced lawsuits and community opposition, to get built.

Word has spread about Tosta’s talk and it has led to invitations for him to speak to other lawyers and even banks and insurance companies. His ideas go beyond strategic advice. He prods lawyers to step back from their often frantic lifestyles where egotism, aggression and multi-tasking prevail over being present in the moment and making time for family or hobbies.

“There are a bunch of lawyers who recognize the madness that is thrust upon you by taking a career at face value as defined by others … I think to the extent we don’t take care of ourselves, we aren’t very good at taking care of each other. We’re earning a reputation as being soulless operatives in this world,” Tosta said.

Now Tosta, a partner at the San Francisco office of Luce, Forward, Hamilton & Scripps, is hoping to hearten his colleagues by becoming the firm’s in-house life coach. Tosta hopes to help people look hard in the mirror and find more happiness. He gleaned lessons from years of reading books on religious theory, psychology, listening, negotiating, happiness and memory. As he does with himself, he encourages people to be less controlling, to talk less and listen more without judging. He wants people to honestly examine how their attitudes, biases and unreliable memory may be causing problems in their relationships.

He’s started his life-coach training a few weeks ago and hopes to get certified by the International Coach Federation next year. But for several years now, Tosta has been inadvertently coaching his colleagues.

Charlotte Ito, a trust and estate planning lawyer at Luce Forward, said Tosta has been like a spark in her life — motivating her to change the way she practices law and to better balance her work and family life. While out for lunch together a few years ago, Tosta asked her if she talked about death with her clients. She admitted that despite her practice revolving around planning for death, she studiously avoided actually bringing up the d-word to clients.

“Working with Tim has taken it to a different level because now it’s not so horrifying to talk about death itself,” Ito said. “I help them go to that place.”

Now that she actively encourages her clients to really contemplate their deaths and the effects it will have, she said she is crafting even better estate plans.

Luce Forward appellate lawyer Charles Bird, who heard Tosta speak at the firm’s office retreat in June, said Tosta’s mention of the philosophy behind the Japanese martial art aikido inspired him.

“There are lots of stories about people in law and business and elsewhere who have these transformative experiences and end up becoming clergy or open a homeless shelter,” Bird said. “There’s not a lot of stories of people that have that kind of experience and bring it back to the profession both pragmatically and as teachers. Part of what he discusses, the part that comes a lot out of aikido themes and ethics, I’ve found to be a very powerful message about practicing law more respectfully and more effectively at the same time.”

When recently drafting a response to an amicus curiae brief, Bird said he could have easily written a very sharp-edged response.

“Instead, my approach to the amicus curiae, or to many of its arguments and positions, was that they’re important and enlightening in their incorrectness,” Bird said. “It’s not like I agreed with them, but their viewpoints actually illuminated the strengths on my side … I’m not sure I would have found that approach if I hadn’t heard Tim’s presentation and thought how it could be used in appellate law.”

Tosta, too, is less sharp-edged than he was back when he was fresh out of law school and building up his solo practice. Spending time with indigent hospice patients at Laguna Honda Hospital, who often have just a few months or weeks to live, has helped Tosta mellow.

With mortality on his mind, he says he’s “living life” more today than he was when he first learned of his cancer. Tosta finds more time to listen without distraction, to meditate, to play Tin Pan Alley songs on his banjo and ukulele and to hang out with family and friends.

Witnessing the dying process of hospice patients has not only taught him to accept rather than fear change, it’s shown him that forging connections with other people is what really counts in life, he said.

“The most glorious thing about it is, and this is heretical from a lawyer, the power of love and the way that it can come upon you instantly and stays with you as a memory or a feeling for a long, long period,” Tosta said.