The Law Can Be Hazardous to Your Health

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.)

2 thoughts on “The Law Can Be Hazardous to Your Health”

  1. Every one of the ‘noble professions’ believes it is the most noble and demanding, and—therefore—potentially unhealthy. My first career was in ordained ministry, and every conference/meeting included copious reminders of ill-health among clergy and the importance of self-care/healthy boundaries, together with copious rounds of bragging about 90-hour work-weeks. I have doctors in my family who regularly hear at their own conferences about how unhealthy the healers are, while their institutions continue to adhere to insane scheduling practices that promote ill health.

    Workaholism, with all its attendant behavioral problems, is an epidemic baked into our hyper-competitive market economy, where every personal transaction is monetized and impersonalized.

    This is why ADR—particularly mediation—may be one key ingredient in helping the legal community manage some of its endemic dysfunctional patterns.

    On the one hand, litigation must continue to be a thriving aspect of the legal system. Common law *is* the law, and without litigation, the law’s evolution rests solely in the hands of a hyper-ideological and special-interest-beholden legislative process. Legislatures *can* be deliberative and thoughtful, but that seems fairly rare these days. Judges can be ideological and beholden, as well—but the appellate process, stare decisis, and a less-ideological appointment/election/retention system tend to mitigate those forces. So not every case should settle.

    That said, especially from the perspective of helping lawyers, law students, and clients be more healthy, mediation, restorative justice, and other client/person-centered ADR processes can help temper the isolating, combative, and ugly aspects of the adversarial process.

    In my current role as a law clerk at a PI firm, I have attended several motion hearings, trials, and depositions—as well as a few mediations. The differences are stark.

    In litigation, after intake, there is virtually no client contact. Lawyers collaborate on strategy in the office, but largely everyone sits behind their computers and writes, reads, emails, and yammers on the phone. The majority of courtroom time is spent with two opposing counsel, a judge, and a court reporter—and basically no one else in the room. The facts of the case are interesting and sometimes meaningful, but largely the discussions center on legal principles and litigation tactics. The majority of a litigator’s time appears to be spent either alone or with other litigators and their support staff. This breeds isolation, competition, and reinforced negative feedback loops. The practice of law can become very impersonal and theoretical, which doesn’t necessarily promote good human behaviors.

    In mediation, the clients take center stage. Even in shuttle/caucus situations, the clients (at least on Plaintiffs’ side) are in the room with the attorneys. Personal stories are on the table. When the mediator isn’t in the room, relationships between clients and attorneys/clerks grow, often in casual conversation. Not only are cases often settled more quickly and efficiently, the process itself seems far more personal and human—and human beings tend to treat each other and themselves in healthier ways than disembodied theories and principles.

    In my previous life, interpersonal conflict resolution processes often led to stronger relationships, and stronger relationships often bred better behaviors. Person-centered processes tend to be more accountable in general, and accountability in one arena has a capacity to bleed over into other areas of life as well.

    That’s my hunch and experience, anyway. It is one way lawyers can be a little more healthy. That, and a standing appointment with a therapist, recovery meeting/sponsor, mentor, colleague, and/or supportive partner/spouse/parent/friend.

  2. I want to focus my first comments on the stresses of law school and the risks it poses to law students before a final touching point on litigation and ADR.

    Law school is by far the most stressful thing I have ever done in my life. I think most law students would echo this but many fail to recognize how to maintain a healthy law school/life balance. That’s not a knock on them by any means. We are under a remarkable amount of stress to get the best grades and make sure we are applying for the right jobs and making sure we are setting ourselves up for the most success. It doesn’t change the fact that we are still humans and need to take time to ourselves. I do my best to shut my law school brain off when I go home for the evening. Often, I do not even bring books home because I want my home to be free of the law school stress. In addition, my friends and I go to play trivia at a local restaurant and have a meal together. In fact, it has become less about the trivia and some of us have characterized it as “family dinner”. I love the analogy above about putting your own oxygen mask on before you help others. We can sign up for volunteer shifts, speaker series, and all different manner of things but without taking care of ourselves we are not giving ourselves a fighting chance to thrive.

    One last point to mention is that we cannot be afraid to ask for help. I often say that I love seeing Twitter posts nowadays about people joking about funny things they say to their therapists. Not because what they are saying is funny, but that people are going to therapy and are willing to be open about it. Too often the stigma of therapy keeps people away and I am glad to see we are moving away from that. Talk to someone. Get the help you need. YOU owe it to yourself.

    Shifting more towards the stress on clients and attorneys, one big thing attorneys can do to mitigate this is to stress the importance of ADR. Mediation, for one, can be a remarkable tool for expediting processes and alleviating client stress. Clients could have a slam dunk case in the eyes of the lawyer but the judge could be having a terrible day. In that case, going to mediation and allowing the parties to hash out whatever the dispute may be would be remarkably helpful in finding a solution. Mediation and ADR is by no means a catch-all but when matters necessitate, it is a great tool.

    Litigation can be super stressful as mentioned in the post. Reasons for coming to litigation or even pursuing it are stressful enough. I work once a week at a family forms clinic and having to tell people that a court date could be 9-12 months away usually stresses them out quite a bit. ADR and other measures can help alleviate that.

    In summary: Develop a routine, take care of yourself, don’t be afraid to ask for help, and use ADR when appropriate.

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