A few years back I read an article written by law researchers E. P. Martin, P. Seligman, Paul R. Verkuil, and Terry H. Kang, entitled “Why Lawyers Are Unhappy.” I wish to recall its salient points for the benefit of lawyers visiting this blog.
Much attention has been paid recently to the disillusionment among lawyers, especially young associates’ “quality of life.” Many bright attorneys grow disillusioned and cynical, with diminishing career opportunities.
Unhappy associates fail to achieve their full potential at a cost to them, their firms, their clients, and even their families. Invariably many lawyers leave the law firm, and some the practice of law, prematurely, resulting in undesirable turnover, and a loss of talent to the profession.
The hypotheses of the authors suggested that much of the unhappiness of lawyers, which, by the way, is curable, stemmed from three causes:
(1) Lawyers are selected for their pessimism (or “prudence”) and this generalizes to the rest of their lives;
(2) Young associates hold jobs that are characterized by high pressure and low decision latitude, exactly the conditions that promote poor health and poor morale; and
(3) Law is to some extent a zero-sum game, and negative emotions flow from zero-sum games.
There is little doubt that “a dysfunctional legal profession will have a negative effect on the law itself”.
Since lawyers are members of a “public profession,” their dysfunction entails societal, as well as personal, costs. Indeed, the creation of law itself is in one sense bound up with the health of judges, lawyers, legislators, and academicians.
The authors theorized that the new field of “positive psychology” (which seeks to cultivate human strengths, rather than focus on human weaknesses), offers coping strategies to reduce unhappiness, and can be adapted successfully to the legal setting, in particular the large law firm.
One of the triggers for combating demoralization involves the avoidance of “zero-sum situations”. In law, such situations seem inevitable; they lie at the heart of our adversarial system of justice. If we accept that the “adversary model” embraces important social values, displacing it may not be in our interest. If so, some degree of lawyer unhappiness may be unavoidable if we are to achieve societal goals.
This raises the ironic possibility that “lawyers can be made happier only at public expense”. It also may be why lawyers have long been “known for their saturnine personalities.”
The authors stated that their prescriptions have to account for “the connection between the goals of the legal system and the nature of its practitioners”. They believe that steps can be taken to improve the lives of lawyers.
Even assuming “lawyer pessimism has a social purpose”, recognition of that fact may well facilitate deeper understanding by lawyers of their role in society. Even “exercises in introspection can help to improve the quality of a lawyer’s life.”
Practitioners have increasingly acknowledged that “law is a profession in crisis”, and the crisis they speak of relates to the “widespread disenchantment among even the most talented lawyers.”
According to the authors, among practitioners responding to a 1992 poll, 52 percent described themselves as dissatisfied, and many are retiring early or leaving the profession altogether.
In many cases, “the problem is not financial”. Associates at top firms can earn (with bonuses) up to $200,000 per year in their first year of practice.
In the last decade, lawyers have surpassed doctors as the highest-paid professionals.
But financial recognition may just be “a symptom of the problem”. The recent pay increases at large law firms are themselves “partially caused by lawyer dissatisfaction”.
The euphemistic “retention bonuses” are awarded to ensure that young associates “extend their service beyond two or three years”. Combating this desire to leave early is among law firms’ highest priorities, since they can only “recoup their investment in new lawyers over a longer period of time”.
The authors stated that in addition to being disenchanted, lawyers are “in remarkably poor health.” They are at much greater risk than the general population for “depression, heart disease, alcoholism and illegal drug use”.
They cited Johns Hopkins University study which found statistically significant elevations of major depressive disorder (“MDD”) in only three of 104 occupations surveyed. When adjusted for socio-demographic factors, lawyers topped the list, suffering from MDD at a rate 3.6 times higher than employed persons generally.
The studies confirm the hypothesis that “lawyer unhappiness can lead to serious health and social problems that pose a threat to the legal profession.”
Unhappy lawyers not only burden their families. Given their role in a public profession they can also “injure their clients by failing to provide adequate representation”. Unhappiness and depression are intimately associated with “passivity and poor productivity at work”. Lawyers who violate their clients’ interests often become disciplinary problems.
But formal recognition usually comes late in lawyers’ careers, after “a long period of unrecognized and unaddressed problematic behavior”. By that point, inadequate representation may already have caused “irreparable injuries to clients and the legal system”. The potential problems must be addressed “before they rise to the level of disciplinary offenses”.
Some law students have selected law because of their “pessimistic personalities” and so they are “at risk of depression when they become lawyers”. Law schools are themselves a “potential breeding ground for lawyer demoralization”.
Research in positive psychology suggests three principal causes of the
demoralization prevailing among lawyers:
(a) Pessimism,
(b) Low decision latitude, and
(c) The “zero-sum game” nature of the job.
“Pessimism” is a term emerging from a reformulation of “learned helplessness theory”, a theory first systematically articulated by researchers studying animal behavior.
Pessimism is defined not in the colloquial sense: “seeing the glass as half full or half empty” but rather, as a pessimistic “explanatory style.”
This is the tendency to interpret the causes of negative events in stable, global and internal ways: “It’s going to last forever; it’s going to undermine everything; it’s my own fault.” Under this definition, the pessimist will view bad events as unchangeable.
The optimist, in contrast, sees setbacks as temporary.
Research has revealed, predictably, that “pessimism is maladaptive in most endeavors”.
Pessimistic sales agents make fewer sales attempts, are less productive and persistent, and quit more readily than optimistic agents. Pessimistic undergraduates get lower grades.
Pessimistic swimmers have more sub-standard swims. Pessimistic world leaders take fewer risks and act more passively during political conflicts than their optimistic counterparts.
But while pessimists tend to be losers on many fronts, there is one striking exception: “pessimists may fare better in law”. Research reveals a “surprising correlation between pessimism and success in law school”.
In a 1987 study of Virginia law students, it was revealed that law students whose attributional style defined them as “pessimistic” actually fared better than their optimistic peers. Specifically, the pessimists outperformed more optimistic students on traditional measures of achievement, such as grade-point average and law journal success.
These data suggest that what is labeled as pessimism is “not a detriment and may even be a virtue for lawyers”.
Pessimism encompasses certain “positive” dimensions; it contains what we call - in less pejorative terms - “prudence.” A prudent perspective, which requires caution, skepticism and “reality appreciation,” may be an asset for law or other skill-based professions.
It is certainly a quality that is embraced in legal education. Prudence enables a good lawyer “to see snares and catastrophes” that might conceivably occur in any given transaction.
The “ability to anticipate a whole range of problems that non-lawyers do not see” is highly adaptive for the practicing lawyer. Indeed clients would be less effectively served if lawyers did not so behave, even though this ability to question occasionally leads to lawyers being labeled as “deal breakers or obstructionists”.
The qualities that make for “a good lawyer”, however, may not make for “a happy human being”. Pessimism is well-documented as “a major risk factor for unhappiness and depression”.
Lawyers cannot easily turn off their pessimism (i.e. prudence) when they leave the office. Lawyers who can see acutely how bad things might be for clients are also burdened with the tendency “to see how bad things might be for themselves”. Pessimists are more likely than optimists “to believe they will not make partner, that their profession is a racket, or that the economy is headed for disaster”. In this manner, pessimism that might be adaptive in the profession also “carries the risk of depression and anxiety in the lawyer’s personal life”.
The challenge is how to “remain prudent professionally” and yet “contain pessimistic tendencies in domains of life outside the office”.
A second psychological factor producing lawyer unhappiness is “low decision latitude”.
Decision latitude refers to the “number of choices one has or, as it turns out, one believes one has”. Workers in occupations that involve “little or no control” are at risk for depression and for poor physical health.
An important study of the “correlation of job conditions with depression and coronary disease” used two dimensions: (1) job demands and (2) decision latitude.
Beyond the “intense job demands of law practice”, low decision latitude is also a frequently cited problem. Associates often have “little voice or control over their work, only limited contact with their superiors, and virtually no client contact”. Instead, for at least the first few years of practice, many remain “cloistered and isolated in a library (or behind a computer screen), researching and drafting memos”.
In these high-pressure, low decision latitude positions, the associates are likely candidates for negative health effects, such as “higher rates of heart disease and for higher divorce rates”. These same associates are candidates for “early departure from law firms”. As such, they are often the object of “retention bonuses.” Not surprisingly, many young lawyers who do leave firms early choose “alternative legal careers”, such as legal aid or assistant district attorney, “where the pay is considerably lower but the decision latitude is considerably greater”.
There antidote for pessimism is optimism.
Optimism is the ability to dispute recurrent catastrophic thoughts effectively, and it can be learned.
“Flexible optimism” can be taught to both children and adults to enable them to determine how and in what situations one should use optimism and when to use pessimism.
The techniques of “learned optimism,” can teach lawyers to use optimism in their personal lives, yet maintain an adaptive pessimism in their professional lives.
Flexible optimism can be taught in a group setting such as law firms.
Learned optimism recommends that individuals employ a “disputing technique” to control their negative emotions.
In the disputing technique, the lawyer first learns to identify catastrophic thoughts she has, and the circumstances under which they occur. Then she learns to treat these thoughts as if they were uttered by a rival for her job, a third person whose mission is to make her life miserable. She then learns to “marshal evidence against the catastrophic thoughts”.
Credible disputing of pessimistic thinking is “self-maintaining because one feels better at the moment one does it”.
As to the high pressure-low decision latitude problem, there is a remedy as well. We accept that pressure is an inescapable aspect of law practice. But high pressure itself does not seem to be the problem; rather, it is the combination of high pressure and low decision latitude that causes negative health effects. By modifying this dimension, lawyers can become both more satisfied and more productive.
One solution is to tailor a lawyer’s day so there is considerably “more personal control over work”.
Antidotes to associate malaise include “more substantive training, mentoring, a voice in management, and earlier client contact”.
Research on the problem of decision latitude revealed that the “mere illusion of decision latitude has beneficial effects on morale”.
“Perceived control” can be just as effective an experimental condition as “actual control”. This means that “efforts to meet and communicate about problems” can have beneficial effects. Establishing a committee on associate morale, coupled with surveys and interviews of young associates, is one way to accomplish this result. But young lawyers are a highly skeptical group, and they are quick to challenge attempts at talk and no action.
A law firm can gain by learning more about associates’ strengths and employing that knowledge to help “shape the work environment”.
When a young lawyer enters a firm, he or she comes equipped not only with prudence and other lawyerly talents like high verbal intelligence, but with an additional set of unused signature strengths, such as “leadership, originality, fairness, enthusiasm, perseverance, and social intelligence”.
Law firms should discover the particular signature strengths of their associates. Exploiting them could make the difference between a demoralized associate and an energized, productive colleague.
A firm can produce higher morale by setting aside five to ten hours of the work week for “signature strength time,” (i.e., a non-routine assignment that uses the signature strengths). Over time, higher morale will translate into higher billing hours.
If an associate’s strengths include leadership he or she could be assigned to associate committee work; or if it is social intelligence, he or she could be exposed to clients at an earlier stage. Originality might send an associate to the library to search out a non-obvious theory to an intractable legal problem.
A zero-sum game is an endeavor in which “the net result is zero”. For every gain by one side, there is a counterbalancing loss by the other. A sports event is a zero-sum game, in that there must be winners and losers. A non-zero-sum game, in contrast, is an endeavor in which there is a net gain.
Negative emotions (i.e. anger, anxiety, and sadness) have evolved from zero-sum games, and that positive emotions have evolved from non-zero-sum games.
Historians argue that human civilization has reached its present state of social development by harnessing non-zero interactions, and that as humans continue to evolve, non-zero-sum games have become more numerous and elaborate, and have produced collective benefits to society.
Mutual profit can be achieved in zero-sum interactions if two problems are solved: “communication and trust”. If these conditions are obtained, stable, cooperative relationships emerge.
Much of the lawyer’s relationship to his client, the court and even fellow lawyers is premised on “established, norm-based commitments”. If these “core values of the profession can move in the direction of non-zero status”, the profession can also be benefited.
Positive emotions, such as joy, amusement and interest, are broadening; they build social and intellectual resources. By contrast, negative emotions narrow and restrict the social and cognitive environment.
The “adversary process”, which lies at the heart of the system of law, has long been viewed as a “classic zero-sum game”. In litigation, one side’s gain often moves in lockstep with the other side’s loss.
Lawyers are trained to be “aggressive and competitive” precisely because they “must win the litigation game”. This training, because it is fueled by negative emotions, can be a source of “lawyer demoralization”, even if it fulfills a “social function”.
One problem with the “adversarial paradigm” is that “the single-minded drive toward winning the competition will make young lawyers not only less useful citizens but also less good as lawyers, less sympathetic to other people’s troubles, and less valuable to their clients.”
When the practice of law is tied up with a large number of zero-sum games, it will produce predictable emotional consequences for the practitioner, who will be “anxious, angry and sad much of his professional life”.
The adversary model is “entrenched in the ethics of law”. The introduction of more non zero-sum situations, e.g., conciliation, mediation, and arbitration, decreases demoralization, but at the cost of our system of justice.
By understanding the values of the adversary system in terms of its zero-sum nature, we can assess alternatives that seek to “soften competition with cooperation”.
Modifications to our legal system must be justified both in terms of an individual’s well-being, and of our system of justice.
Social psychology has analyzed the adversary system from the standpoints of “fairness and satisfaction”. The adversarial system of justice leaves “more control in the parties (through their attorneys)”.
Since control has a salutary psychological effect, the adversary model is one expression of a “satisfactory political system”.
By placing control in the individual over the state, the adversary system reflects “deeper values of liberalism and even natural justice”.
In this way, the lawyer has a central role “as a public servant, a preserver of the values inherent in our political structure, even when he or she is seemingly only arguing for a client’s self-interest”.
The authors argue that “self-interest serves the public interest”.
The psychological question is “whether adversaries can be competitive without being pessimistic”.
The way adversariness is perceived by lawyers helps shape their character and encourages pessimistic behavior. Sometimes “competitiveness is unnecessarily combative”.
The lawyers’ code of ethics emphasizes “zealous” representation. But what does zealous representation add to competent representation?
Many have asked why the legal profession envisions litigation as war. The question is, can lawyers serve the adversary system without generating conflict on a personal level?
Civility need not weaken the lawyer’s commitment to the adversary system.
In fact, a growing number of law schools and law firms now recognize the importance of instilling civility and teaching team-building skills. Under this vision, it may be possible “to retain the virtues of adversariness while discarding some of its negative dimensions”.
The zero-sum effects of the adversary model, in terms of its “winner-take-all” mentality, usually occur where cases are tried to judgment—a small minority of cases. Where settlements occur, both sides frequently have made wise choices that allow them to claim victory.
Outside of litigation, non-zero expectations can play an even greater role. Most lawyers are not litigators; rather they are specialists in “normative ordering.” The notion of normative ordering suggests a role that fits the lawyer-statesman ideal. When lawyers assume these roles, cooperation challenges the virtue of competition.
While the authors accept the “social necessity for an adversary model”, with its zero-sum implications, they feel that the benefits of the adversary system can be expanded without zero-sum consequences. If litigation itself can be avoided, the client may still retain control over the outcome while increasing the probability of cooperative solutions.
The authors stated that choosing lawyers with reputations for cooperation can produce positive litigation outcomes. They see health and economic effects through cooperation because of its non-zero characteristics.
The combination of both effects has significant social promise. If the positive role of adversaries can be expanded, benefits would occur for society and the legal profession.
Finally, the authors noted that the zero-sum dimension was not the whole story in litigation. While the ends may often be zero-sum, the means can encompass non-zero dimensions.
As applied to the litigation context, iteration might help extend ideas of cooperation into the adversary process.
For example, “standstill agreements” between potential litigants are used to permit settlement discussions to proceed on a cooperative basis, without fear of having concessions used later in a courtroom.
Similarly, “mandatory mediation provisions” in contract disputes are designed to free up the parties to explore alternatives before litigation commences.
Law schools are both a source of the problem and a necessary part of the solution. The Socratic teaching method—employed especially in large, first-year classes—cultivates and encourages adversarial thinking by emphasizing zero-sum situations. The students’ adversarial skills are honed by withstanding questioning from skeptical interrogators.
In this respect, law school pedagogy differs from that of business schools, where cooperative projects and thinking are the rule in leading MBA programs. Moreover, competition for grades, among a group who self selects law for its pessimistic qualities, adds to the challenges.
There is a need for further study into the “relationships among teaching style, grading methods, and the pessimistic tendencies of law students”.
The pervasive disenchantment among lawyers and the concomitant attrition rate among law firms can be remedied not by increasing compensation or perks but by using more valuable and less tangible rewards.
This will require changes in law firm culture — greater emphasis on “positive-sum games and cooperation” — as well as reforms at three levels: individual, firm-wide, and institutional.
At the individual level, lawyers must first recognize that “pessimism is maladaptive outside of work”. Perhaps they then can learn to apply the techniques of “flexible optimism in their private lives”.
At the law firm level, those members with the most power to effect change should actively participate in “creating more decision latitude for junior associates”.
At the least, partners should “create mentoring relationships with junior associates”. They should also delegate responsibilities and allocate tasks to junior associates that better speak to their “signature strengths”, thereby providing more control and decision-making power at an earlier stage in their development.
At the institutional level, bar associations that “foster and promote civility” among their members are on the right track. Judges and counsel who “encourage settlement and direct cases toward mediation” deserve credit for dampening the zero-sum nature of practice.
The law schools also play an institutional role. They are the entry point to the profession and help shape the system.
By “assisting new lawyers to adapt to the demands of practice” they can become agents for positive change.
The goal is clear: create a “psychologically healthier profession while honoring the essential role of lawyers as client representatives”.
These need not be incompatible objectives.
