Why Thriving Is Hard for Lawyers

Thriving — achieving personally meaningful goals in multiple areas of life despite significant challenges — is tough for lawyers because we face a uniquely tough set of challenges. Everyone faces challenges, but lawyers face a unique configuration of five challenges and, unfortunately, law school not only did not prepare us for these challenges, it tipped us into some adaptations for them that get us by but inhibit thriving.

You have probably seen the data on the low level of lawyer thriving in various forms. It is generally expressed by looking at those who have reached some marker such as “depressed”, but it can also be seen in those of us who are just getting by. More than 20 years of research shows that lawyers experience:

  • the highest rate of major depressive disorders of any of 104 occupational groups (2-4 times that of the general population)[1]
  • rates of anxiety, phobia, and interpersonal sensitivity 5-15 times higher than in the general population[2],
  • high levels of suicide and substance abuse[3], and
  • significantly lower levels of happiness than their socio-economic peers[4].

More of us were thriving before we went to law school. Rather, something happens in law school, and that something seems to be significantly connected to a decreased connection to important personal values. Students entering law school look much like other college seniors. For example, less than 10 percent are depressed. Although we can identify some small differences,[5] 1Ls on the first day of class are more similar to their peers in medical or business school, or to the general public, than to practicing lawyers. Then law school changes many of them.

By the end of the first year of law school, approximately 30 percent of all students are depressed, and this rate increases to 40 percent by the end of their third year[6]. One recent study of the students at a major national law school found that 53 percent of the respondents were clinically depressed.[7] Anxiety and hostility also go up throughout law school. Law students also tend to move from personally meaningful goals and values for their legal careers to more status-seeking, externally oriented goals and values[8]. In other words, students move from wanting to "do good and be good" to wanting to "get the goods." Materialism, the pursuit of money above other values, predicts decreased well-being.[9] Thus, the shift from intrinsic to extrinsic values does not bode well for law students.

Why? And, what can we do about it?

Why? Why should law school hit law students so hard? And why should lawyers show significantly lower levels of well-being and higher levels of psychological dysfunction than their peers in other professions? And, more importantly, what can we do about it? The short answers are:

  • Lawyers perform an important role for society that places tremendous personal stress on them.
  • Much of that stress comes from a unique configuration of five challenges to thriving.
  • Over hundreds of years of the development of the western legal system, lawyers have developed a set of common, minimal adaptations to the stress placed on them by law in general and to the five challenges in particular.
  • Although some lawyers have developed a set of thriving adaptations — by chance, due to “good genes”, or perhaps through good role models or mentors — for most of us, the minimal adaptations may allow us to function, but they inhibit high levels of thriving. This may just mean we are not functioning at our best, and not enjoying our lives as much as we reasonably could. Or it may mean we are suffering from depression, anxiety, or weak, unsatisfying connections with others, or have turned to alcohol or other means of escape.
  • Strong evidence exists to suggest we can, individually and together, learn, adopt, practice and become comfortable and proficient with a set of skills that can help us adapt to the pressure of the law in general, and the five challenges in particular, in a manner that will significantly increase our levels of thriving.

Lawyers perform an important role for society that places tremendous personal stress on them in the form of a unique configuration of five challenges to thriving.

Law resolves (and tries to avoid) the toughest problems our society creates — the ones that cannot be otherwise resolved. It is often not pretty. The process is frequently painful. And it can take both time and money. But we get it done. Our clients often want us to deliver a pretty, pain-free, inexpensive product, so they are frequently not happy. But, we get it done. Because of the nature of these disputes and the adversarial system through which law resolves them, lawyers are faced with a unique exposure to a set of personal challenges. Legal culture, beginning in law school, transmits and sustains a set of minimal adaptations to these challenges. These minimal adaptations inhibit personal thriving. Other, more thriving-oriented adaptations are possible, but many of us do not have a roadmap for finding them and have not practiced them to mastery.

Let’s take a look at the five unique challenges lawyers face.

Thriving Challenge #1: Conflicting Values

Societies around the world endorse a common set of ten categories of values[10]. These are core values endorsed by most individuals, but the values are in conflict; they pull against each other. Shalom Schwartz, the originator of this research, has found that these values are in a circumplex relationship. Values close to each other conflict very little, those further around the circle are more directly in conflict. Many legal conflicts also involve disputes where values are so in conflict that other resolution methods fail. Criminal cases may pit the rights of the accused and safeguards on government overreaching (Self-Direction) against safety and security for society in general (Security). Divorce cases may pit a parent’s opportunity to advance in their careers and provide for their children (Achievement) against the value of the other parent’s presence in the children’s lives made possible through geographic proximity (Benevolence, Tradition). Few, if any, legal cases are good vs. evil. Almost all involve one good — something we value, and therefore a “value” — against another good, another value. As a result, law school teaching subtly (and without conscious intent by law professors) trains students to treat arguments based on values, social consequences, and moral reasoning as “throwaways.”[11] Legal precedents are carefully parsed, but arguments from values are made and countered casually and carelessly — an “anything goes” approach.[12] This sends a message that values are not useful, and feeds the tendency of law students to detach from their values.

Thriving Challenge #2: Zero-Sum Situations

Zero-sum situations, where one participant's gain is necessarily at the expense of another participant's loss, are often described as win-lose, as opposed to win-win, situations.[13] Zero-sum situations elicit negative emotions. As an article about a Tennessee divorce attorney said, “It is a daily grind of disappointment, stress and strife, of humans at their most fragile, greedy or vindictive.”[14] Further, performance in such situations can be enhanced by such emotions. For example, recent research shows that many individuals tend to choose to feel anger when facing confrontational situations, and that this emotion seems to facilitate better performance.[15] But, attorneys face substantially more zero-sum situations than other professionals, and also face them with a skilled, trained adversary on the other side. This aspect of practice can result in an unusually high level of negative emotions, or the tendency to damp down all emotional responses. Either way, the impact upon relationships, achievement, and general well-being is quite corrosive.[16]

Thriving Challenge #3: Adversarial Skills

The lawyer’s role in resolving values-heavy, zero-sum conflicts (or in negotiating agreements to avoid them) often requires the use of adversarial skills. We are trained in how to argue, but we are not trained in how to argue andmaintain a relationship. We are also not trained in when not to use our adversarial skills. We are not equally skilled in other forms of communication such as appreciative or assertive approaches. Our training elevates adversarial skills to the highest form of discourse. We often judge another’s intelligence and ability as a lawyer by how skilled they are in verbal combat.[17] As a result, we can become adversarial. It becomes our stance toward any disagreement or conflict. Research suggests this stance can severely affect our ability to sustain close relationships. For example, John Gottman, a leading researcher on relationships, notes that a “harsh startup” to a conflict, especially if it includes criticism, defensiveness, contempt, and stonewalling, predicts poor conversational outcomes and relationship distress.[18] Yet making a strong opening statement is a key skill of an advocate! We may be uncomfortable with appreciative exploration of solutions, so we go straight to adversarial argument. This adversarial stance can create zero-sum situations where none may have existed before. At the very least, it sets us up for more frequent and stronger negative emotions.

Thriving Challenge #4: Necessary Evils

A “necessary evil” occurs when a professional must inflict emotional or physical pain upon another human being in service to some higher good. [19] A doctor performing surgery performs a necessary evil by inflicting pain and injury on the patient in service to the patient's ultimate health. Lawyers not only must frequently participate in necessary evils, they must often do so in the full conscious presence of the recipient of the harm, and with a skilled adversary arguing that the evil is not necessary. So, whether it is a criminal defense attorney cross-examining a child witness in a child sex abuse prosecution, a civil trial practitioner arguing that the fault for a plaintiff's injury rests with the defendant, an employment law practitioner advising on how to fire an employee or close a plant, or any one of hundreds of other situations, lawyers are routinely engaged in necessary evils. Again, the result is often either an excess of negative emotions or an attempt to reduce all emotionality. This challenge, like the challenge of values conflicts, can also make us question the meaning and purpose of what we do.

Thriving Challenge #5: Culture

Because of the effects of the factors listed above, and the inability of attorneys to adopt alternative attitude/behavior sets, lawyers often utilize adversarial, non-emotional (or negatively emotional) approaches in non-adversarial situations, including with their colleagues in law firms or legal departments.[20] We can also have trouble focusing on meaning and purpose (values) as the foundation for how we work with each other. The result is that lawyers frequently exist within organizations and offices that are not sufficiently positive to encourage thriving. A strong line of research over the last 15 years or so has established that, whether we consider an individual, a couple, or a business unit, positive emotions (even brief and mild) and interactions must outweigh negative by at least 3:1 for the individual, couple, or organization to experience the highest levels of success — i.e., “thriving”.[21]

Minimal Adaptations to the Five Challenges

In the face of these five common challenges, lawyers as individuals and groups adapt. Some find a set of adaptations that allow them to thrive. Many of us, however did not receive any help in the challenges, and we often saw only minimal adaptations modeled by other lawyers. Thus, we made only unconscious, minimal adaptations that, while allowing us to function, limit our ability to thrive. Listed below are some common minimal adaptations with brief descriptions. As you look through these, consider marking those that you may have incorporated to some degree into your own set of adaptations — this could help you identify ways to move forward.

De-valuing Values: We can sometimes subtly disconnect from our values. Elizabeth Mertz noted this adaptation in her research into the commonalities of law school instruction across the country.[22] Think about it. Many of us went into law school right out of college. We were young. We had not tested and confirmed our values in the arena of adult life and work. Then we were immersed in a world where every day we were implicitly but powerfully informed that whatever values we held, they did not work to solve the tough problems we were studying. This was never discussed openly and with rigor, and Mertz identifies common patterns in law school teaching work to subtly de-value values.

The minimal adaptation is to detach from those values to some degree. But, in doing so, we start to send the wrong signals to those around us who are still living by and endorsing these values that have enabled human societies to develop. My own research into the endorsement of 24 universal character strengths by lawyers and law students also supports this conclusion. Again, at the start of law school, beginning 1Ls endorse this set of strengths in a manner very similar to the US population as a whole. But practicing lawyers endorse 21 of the 24 strengths less than the average, and only three intellectual strengths higher: judgment, love of learning, and curiosity.

The minimal adaptation of De-valuing Values can contribute to:

  • Sense of meaninglessness, lack of purpose — just getting by
  • Low job satisfactions
  • More “distance” in personal and professional relationships than you like
  • Lack of interest in community or social efforts or pro bono work

“White-Hat” Partisanship: Lawyers can extend pride in their role in the system to the point of committing the “fundamental attribution error” of seeing their personal behaviors as stemming from admirable qualities manifesting within the demands of the practice of law, while seeing those of lawyers representing differing interests as evidence of undesirable qualities. So, the plaintiff’s personal injury lawyer can see herself as valiantly representing the weak and disadvantaged while viewing defense attorneys as “selling out” to the large corporations. Criminal defense attorneys may see themselves as defending our system of constitutional protections and the rights of the individual, while prosecutors may view them as “low-lifes taking blood money to defend criminals.” Similar White-Hat Partisanship adaptations can be found in domestic law (representing primarily or exclusively husbands or wives), government law (“representing society” vs. “petty bureaucrat”) and many others. Having a positive mental representation of one’s role is fine. The problem arises when this approach is taken too far and blinds us to the values represented by the other side.

The minimal adaptation of White-Hat Partisanship can contribute to:

  • Unnecessary and unhelpful anger, irritation, or frustration
  • Feelings of disgust for other lawyers, their clients or positions
  • “Rambo” litigation tactics or “Scorched-Earth” negotiation strategies
  • Self-righteousness or arrogance — and consequent difficulty with relationships
  • Excessive focus on being right — even in social or family situations

Zealotry: This minimal adaptation pulls from language once included in disciplinary statements about the duty of zealous advocacy to justify any behavior undertaken in representation of a client. In Tennessee’s current Rules of Professional Conduct (Supreme Court Rule 8), this term now appears only in the preamble. In some states, it has been omitted entirely. This is an adaptation that may be especially attractive to highly competitive lawyers since it excuses hostile, abusive, duplicitous behavior as “just representing my client.” This adaptation can affect the boundaries of ethical behavior, such as by leading a lawyer to interpret discovery requests extremely narrowly and omit items from the response on the basis that it is “up to the other side to check.”

The minimal adaptation of Zealotry can contribute to:

  • Excessive hostility in relationships with opposing counsel
  • Disrepute in the eyes of both lawyers and non-lawyers, and hence distant relationships
  • Anxiety over “getting caught” or whether one has “stepped over the line”
  • A strong tendency to use adversarial skills across all interactions

Pessimism: This minimal adaptation involves a tendency to identify the causes of adversities, misfortunes, and obstacles as relatively permanent and broadly applicable to many areas of life, and as well as mostly out of one’s control. While there is some evidence that this trait may actually help in law school, there is no evidence that it helps in lawyering. On the other hand, there is solid scientific evidence that this type of pessimistic thinking drives toward helplessness and depression, and is associated with poor health, broken relationships, and failure at work.[23]

The minimal adaptation of Pessimism can contribute to:

  • Depression
  • Hopelessness
  • Failure to pursue opportunities
  • Perception by clients and others that one is not “solution-oriented”

Negativity: One minimal adaptation to the negative emotions generated by many legal problems is to simply adopt those emotions as “reality.” The attorney using this adaptation protects himself from being disappointed or upset by negative emotions arising in a matter by simply treating these emotions as what is to be expected from life and deriding positive emotions as “fake” or “fluffy.” Of course, this makes it virtually impossible to achieve the 3:1 or higher positive emotional balance mentioned earlier.

The minimal adaptation of Negativity can contribute to:

  • An excessive focus on what is not working
  • Excessively critical views of others
  • Cynicism

Experiential Avoidance: This is, in some ways, the opposite of negativity. We get short-term relief from just pushing unwanted thoughts, emotions, or experiences away from us. You may have heard a lawyer say, “let’s just get the emotions out of it.” Even in a case, dealing with emotions rather than ignoring them (emotional intelligence) can be helpful, but taken as an approach to life, even just for “negative” emotions, this is a recipe for failure. Over time, this adaptation becomes a resistance to any thought, belief, or judgment that could induce unpleasant or unwanted emotions, and can become a disconnect from emotions generally. Since our emotional system is closely integrated with our ability to detect patterns, assess directions, select goals and respond to challenges, this adaptation can prove subtly problematic.

The minimal adaptation of Experiential Avoidance can contribute to:

  • Isolation due to increasing avoidance of a growing list of individuals and situations
  • Very low levels of self-awareness
  • An unwillingness and inability to understand and accept the emotions of others, with consequent damage to relationships

Materialism: The minimal adaptation of materialism may well begin in law school. Extensive research by Ken Sheldon, psychologist from the Univesity of Missouri, and Larry Krieger, law professor, Florida State University, shows that along with the increase in depression, anxiety, substance abuse and other dysfunctional coping strategies that starts in the first few months of law school and continues through all three years and out into practice, there is also a parallel change in motivation. Student’s first abandon whatever “intrinsic” motivations they may have had coming in – to help people or to do interesting work. Later, they also lose extrinsic motivation — to make a lot of money or achieve status. But, as Tim Kasser of Knox College[24] and other researchers have shown, materialism does not serve us well. Pursuing money and status does not bring happiness — it brings detachment, disillusionment, and often despair.[25] (Sorry if that sounds like a sermon you may have once heard, but the science is solid.)

On a large scale, this effect may be the cause of the Easterlin Paradox: as developed economies have increased the standard of living for their participants, the level of well-being or happiness has not gone up correspondingly — in fact, it hasn’t moved much at all. On an individual level, the Gallup organization and others have researched this question in some detail, and generally in the US, household income matters to well-being up to about $75,000 per year.[26] After that, it matters a little, but not all that much. Despite this, law firms in particular are managed almost exclusively on the metric of profits-per-partner. And, yet, the mega-money-doesn’t-beget-mega-happiness observation is true for lawyers.

Not long after I began speaking on these topics, I gave a talk called “Beyond Money” at a Tennessee Bar Association CLE seminar for the managing partners. Immediately preceding me on the program was a partner with a large management consulting firm for lawyers. It occurred to me I should go hear what he had to say, just in case. He couldn’t have set me up better. He said he did a lot of compensation studies for law firms and in the course of those studies had a conversations such as this repeatedly:

Partner: “This is confidential, right?”
Consultant: “Right.”
Partner: “You won’t tell anyone what I say, not even the managing partner?”
Consultant: “Right.”
Partner: “I make more money than I know what to do with; I just don’t want to make a dollar less than that S.O.B. in the next office!”

Or, as a lawyer wrote in a comment to a survey I conducted several years ago:

I gave notice of my resignation this week after many years at a large, well-regarded law firm. The place is full of miserable millionaires who fight over every last dollar.

Of course, not every lawyer works for big bucks in a private law firm. Many government lawyers are never going to be rich. I didn’t make many friends when, while serving on the Nashville School Board during a salary dispute with teachers, I pointed out that a beginning teacher with a bachelor’s degree made more per-week than a beginning prosecutor with a JD, and that a teacher topped out in experience and educational credentials made more than a district attorney topped out on that scale. That said — two-income lawyer (or teacher!) families are generally close to or above that $75,000 per year level of household income. And materialism can manifest itself as dissatisfaction and resentment with one’s income just as it can take the form of the too-effortful pursuit of an even larger income.

The minimal adaptation of Materialism can result in:

  • “Time poverty” – the experience of inadequate time for self, family, friends, church and community
  • High levels of dissatisfaction coupled with unease about the source
  • Stress and fatigue
  • Broken relationships — professional and personal — as a result of money disputes

Legal Cultures Can Reinforce Minimal Adaptations

I have suggested that the fifth challenge law presents to thriving is that of culture. Each of us is strongly affected by those around us. Legal cultures — our patterns of talking, relating, celebrating, setting goals, assessing progress, determining the causes for failure and assigning blame — are permeated with and enable minimal adaptations to the five challenges. Thus, in addition to our own adaptations, we are affected by the adaptations of others, and our adaptations affect them. Your ability to learn, practice, and become proficient in thriving adaptations to the five challenges will be affected by the cultures around you, particularly the organizational culture of your primary practice setting. You must assess the extent to which you can change within your current culture, the amount of change you can bring to bear on that culture, and the possibility of long-term change in a desired direction in dynamic relationship to the cultures (organizational, family, and community) in which you are embedded. However, as you change, you will also change those around you and the culture, thus making it easier for both you and others to continue making desired changes.

References

  • American College of Sports Medicine (2011). Two minutes of exercise a day can keep the pain away. Retrieved June 7, 2011, from http://www.acsm.org/AM/Template.cfm?Section=About_ACSM&CONTENTID=15972&T...
  • Benjamin, G.A. (1986). The Role of Legal Education in Producing Psychological Distress Among Law Students and Lawyers. Am. B. Found. Res. J. 225.
  • Burton, C. and King, L. (2007). Effects of (very) brief writing on health: the two minute miracle. British Journal of Health Psycholgy, 00, 1-7.
  • Daicoff, S. S. (2004a). Lawyer and law student distress. In S. S. Daicoff (Ed.), Lawyer, know thyself: A psychological analysis of personality strengths and weaknesses.; lawyer, know thyself: A psychological analysis of personality strengths and weaknesses. law and public policy (pp. 113-139). Washington, DC, US: American Psychological Association
  • Daicoff, S. S. (2004b). Precursors to the lawyer personality. In S. S. Daicoff (Ed.), Lawyer, know thyself: A psychological analysis of personality strengths and weaknesses.; lawyer, know thyself: A psychological analysis of personality strengths and weaknesses. law and public policy (pp. 51-98). Washington, DC, US: American Psychological Association.
  • Diener, E. and Biswas-Diener,R. (2008). Happiness: Unlocking the mysteries of psychological wealth. Malden, MA: Blackwell Publishing.
  • Fredrickson, B.L. (2009). Positivity, New York, NY: Crown Publishers.
  • Fredrickson, B. L., & Losada, M. F. (2005). Positive affect and the complex dynamics of human flourishing.American Psychologist, 60(7), 678-686.
  • Grant, A., & Sonnentag, S. (2008). Doing good buffers against feeling bad: Prosocial impact compensates for negative task and self evaluations. Organizational Behavior and Human Decision Processes 111, 13-22.
  • Gottman, J. (2011). The science of trust: emotional attunement for couples. New York, NY: W.W. Norton & Company.
  • Halvorson, H. (2010). Succeed: How we can reach our goals. New York, NY: Hudson Street Press.
  • Kasser, T. (2002). The high price of materialism. Cambridge, MA: MIT Press.
  • Maister, D. (2008). Strategy and the fat smoker. Boston, MA: Spangle Press.
  • Mertz, E. (2007). The language of law school: Learning to" think like a lawyer". New York, NY: Oxford University Press.
  • Molinsky, A., & Margolis, J. (2005). Necessary evils and interpersonal sensitivity in organizations.Academy of Management Review, 30(2), 245-268.
  • Muraven, M. (2010). Building self-control strength: practicing self-control leads to improved self-control performance. Journal of Experimental Soicial Psychology 46, 465-468.
  • Peterson, T. D., & Peterson, E. W. (2009). Stemming the tide of law student depression: What law schools need to learn from the science of positive psycholgy.Yale Journal of Health Policy, Law & Ethics, IX(2).
  • Peterson, C., Ruch, W., Beermann, U., Park, N., & Seligman, M. E. P. (2007). Strengths of character, orientations to happiness, and life satisfaction.The Journal of Positive Psychology, 2(3), 149-156.
  • Reivich, K., & Shatté, A. (2002). The resilience factor: 7 essential skills for overcoming life's inevitable obstacles. Broadway Books, New York, NY.
  • Robison, J. (2011). Happiness is love - and $75,000. Gallup Business Journal, November 17, 2011. Retrieved 1/1/2013 from http://businessjournal.gallup.com/content/150671/happiness-is-love-and-7....
  • Schwartz, S. H. (2007). Basic human values: Theory, methods, and application.Risorsa Uomo: Rivista Di Psicologia Del Lavoro e Dell' Organizzazione, 13(2), 261-283.
  • Seligman, M. (1991). Learned optimism. Knopf, New York, NY.
  • Seligman, M. E. P., Verkuil, P. R., & Kang, T. H. (2001). Why lawyers are unhappy.Cardozo Law Review, 23, 33.
  • Seligman, M. E. P., Park, N., & Peterson, C. (2004). The values in action (VIA) classification of character strengths.Ricerche Di Psicologia.Special Issue: Positive Psychology, 27(1), 63-78.
  • Seligman, M. E. P., Steen, T. A., Park, N., & Peterson, C. (2005). Positive psychology progress: Empirical validation of interventions.American Psychologist, 60(5), 410-421.
  • Sheldon, K. M., & Krieger, L. S. (2004). Does legal education have undermining effects on law students? evaluating changes in motivation, values, and well-being.Behavioral Sciences & the Law, 22(2), 261-286.
  • Sheldon, K. M., & Krieger, L. S. (2007). Understanding the negative effects of legal education on law students: A longitudinal test of self-determination theory.Personality and Social Psychology Bulletin, 33(6), 883-897.
  • Tamir, M., Mitchell, C., & Gross, J. J. (2008). Hedonic and instrumental motives in anger regulation. Psychological Science, 19, 324-328.
  • Wright, R. (2000). Non-zero. Random House, Inc., New York, NY

Notes

  1. Sheldon & Krieger, 2004.
  2. Id.
  3. Id.
  4. Analysis by the author of over 80,000 records from a 15-month period at www.authentichappiness.org.
  5. Daicoff,Susan S. 2004(a); Daicoff,Susan S. 2004(b).
  6. Benjamin, G.A. (1986).
  7. Peterson & Peterson, 2009.
  8. Sheldon & Krieger, 2007.
  9. Kasser & Kanner, 2004.
  10. Schwartz, S., 2007.
  11. Mertz, E., 2007.
  12. Id.
  13. Wright, 2000, at 5.
  14. Retrieved 12/31/2012 from: http://www.nashvillescene.com/nashville/headed-for-splitsville-just-hope...
  15. Tamir, M., Mitchell, G., & Gross, J., 2010.
  16. Seligman,M., Verkuil, P. & Kang, T., 2001
  17. Mertz, E., 2007.
  18. Gottman, J., 2011.
  19. Molinsky & Margolis, 2005.
  20. Maister, 2008.
  21. Fredrickson & Losada, 2005. See, generally, Fredrickson, 2009.
  22. Mertz, E., 2007.
  23. Seligman, M. (1991).
  24. Kasser, T. (2002)
  25. Diener & Biswas-Diener (2008).
  26. Robison, J. (2011)
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