Recently, I was invited to give a lecture at the University of Saskatchewan College of Law. This talk grew out of my post, Legal Stress, which summarized how the law and legal system can be very stressful for everyone who comes in contact with it including parties, lawyers, law students, and even law professors. Law students composed most of the audience at my talk, which also included some faculty and practitioners.
Using a Stone Soup process, I elicited input from the audience and promised to write this post to summarize the discussion. I also promised to post my powerpoint so that they could focus on the conversation instead of madly scribbling all my words of wisdom. Thanks to my host, Michaela Keet, and her daughter, Lauren, who took notes of the discussion so that I didn’t have to madly scribble them during the talk. Thanks also to Heather Heavin, the students, and everyone I met at US for the wonderful warm Canadian welcome. As I noted in my talk, there may be differences between the US and Canada on some issues we discussed.
This post summarizes some highlights of the discussion. It starts by discussing benefits of conflict and litigation and then some risks. It concludes by focusing on what lawyers and law students can do to avoid and minimize the risks for themselves and legal clients. You can read the Legal Stress post and powerpoint for more detail.
Benefits of Conflict and Litigation
Although the focus of the talk was about potential adverse effects of the law and litigation, I didn’t want to imply that all the effects are negative, so I started by asking about the benefits.
Conflict and litigation can give people opportunities to express themselves and be heard by the other disputants and outsiders. Disputants can have their concerns addressed in a formal, public proceeding and possibly be vindicated and win what they seek. Litigation is important to resolve disputes that parties can’t resolve by themselves – and the fear of adverse court decisions may stimulate negotiation and settlement that would not occur without the risk of losing in court. Litigation can provide valuable learning experiences so that disputants learn about the other side’s perspective and gain insights for handling future conflicts.
For lawyers and other dispute resolution professionals, litigation can provide employment, income, professional satisfaction, and opportunities to help clients.
On a societal level, litigation can promote justice and deter potential violations of the law.
Risks of Conflict and Litigation for Disputants
On the other hand, conflict and litigation have real potential downsides. They can stimulate intense and volatile emotions over an extended period of time. Opponents challenge disputants’ arguments and the process can define how disputants feel about the conflict, themselves, and the other side. For kind and innocent disputants, litigation can feel like others are taking unfair advantage. It can be expensive and burdensome, with a lot of legal papers that they don’t understand.
We all have cognitive biases causing us to make poor judgments, and litigation often exacerbates these biases.
When parties are represented by lawyers, there often is tension between lawyers and clients. Lawyers often become frustrated having to deliver bad news to their clients that the legal system can’t provide what the clients believe they are legally entitled to. Parties may think that the other lawyer deserves to go to hell. Parties’ lawyers may agree about the opposing counsel – or believe that they are just doing their jobs.
Leaders of large organizations that are parties often have similar reactions as individual parties. Organizations face additional risks as litigation can harm relationships inside and outside of the organizations, damage reputations, and impose opportunity costs by diverting the organizations from their goals.
Risks for Lawyers
Litigation, including dealing with clients, is extremely stressful. Lawyers often encounter people when they are in bad places in their lives, and lawyers often experience a range of negative emotions in response. Lawyers often have to validate clients’ feelings – and then tell them that what they want to do is not a wise course of action and won’t produce the results they want. One lawyer famously said that half the job of being a lawyer is telling clients that they are being damn fools and they should stop. Some lawyers lack the emotional intelligence and interpersonal skills to communicate well with clients.
There is a great pressure to “win” and it can be depressing to lose.
Litigation practice is expensive with overhead and potentially large student loan debt.
A larger proportion of lawyers abuse substances than the general population. Some lawyers may not have good supports to help deal with the stress, lawyers may not be aware of supports that do exist, and some are not willing to take advantage of them.
Risks for Law Students
Law school is stressful. Law school is competitive and teaching techniques generally are not well designed to promote learning. Law students learn the law, to a large extent, by reading appellate case reports, which generally relegate parties to being “bit players” in their disputes. Appellate opinions focus on contested legal issues, which generally are not what motivate parties. Rather than focusing on parties’ actual perspectives, opinions center on the judges’ perspectives, often casting lawyers as fools for failing to make what the judges believe to be the right arguments (though other judges often disagree). Litigation provides remedies focused on what happened in the past, but normally doesn’t address the future. Lots of parties just want to resolve their disputes and move on. Students often aren’t taught these realities while in school. Working with clients and others in their cases involves significant emotional interactions that law students generally are not trained to handle.
Many students assume that the law provides clear-cut answers, but the law often is ambiguous. Even if the law is clear, the results at trial are not certain because of numerous contingencies, e.g., the judge or jury may be biased, lawyers may be particularly effective or ineffective, witnesses might not show up or be persuasive. So it is hard to make confident predictions about what would happen at trial. This is a different mindset than in the law school case method, where facts are clearly established and taken as given from the outset of the case. So law graduates may go into practice with unrealistic expectations and feel unprepared to do the work they supposedly are competent to do.
One study found that law students enter law school with relatively normal mental health compared with the general population, and a substantial proportion of students leave with elevated mental health symptoms.
What Law Students and Lawyers Can Do to Take Care of Themselves
Analogizing airlines’ instructions to passengers to put on their own oxygen masks before helping others, I said that it’s important for lawyers to take care of themselves so that they can be effective in helping clients.
Because law school can be so stressful, law students should develop supportive relationships to help their classmates when they need help – and get help when they need it.
Law students and lawyers should do a lot of self reflection and planning about what kind of work they want to do professionally. For example, they should consider what kind of clients they want to work with.
Law students and lawyers should consider that legal practice is not for everyone and they may not be cut out for it. TV, movies, and news reports create a distorted image of lawyers, especially as clear heros when the facts usually are complex. Unrealistic expectations can lead to major disappointments.
A mediator advised creating a practice that provides a sense of integrity. She developed a mediation practice because she is more comfortable in a neutral role. Some lawyers are more comfortable as advocates, and others are comfortable in both roles. Of course, people can’t always get the opportunities they want, but it helps to identify one’s goals and work toward achieving them over time.
Get enough sleep, eat a good diet, exercise, and do yoga or meditation if it would help.
Don’t try to “solve” problems with alcohol or other drugs. Many law schools have wellness programs to help students. Saskatchewan has a particularly robust program for its students.
Many bar associations sponsor lawyer assistance programs that provide confidential help. If lawyers get mental health services, the communications should be privileged, so this shouldn’t violate their confidentiality requirements. Also, lawyers can discuss cases without providing names or other identifying information.
If you are having problems, ask for help. If you see colleagues who seem to have problems, ask if they need help.
What Lawyers Can Do to Help Clients
Lawyers should ask clients what are their goals and not assume that clients always or only want to win or end up with as much money as possible. Lawyers should ask clients about their concerns or fears about litigation, noting that it is normal to have these feelings. Lawyers should explain to clients the various ways to handle disputes and discuss what the clients would prefer.
Some clients would benefit from mental health counseling. There is a stigma about getting counseling so it can be challenging for lawyers to raise the issue with clients. Again, it can be helpful to normalize this, noting that many clients benefit from counseling to help them deal with the challenges of litigation.
Invitation to Students to Add to This Post
This post is being distributed to Saskatchewan students and I invite you to add your thoughts in a comment below. (Andrea’s and others’ students too.)