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  • Why lawyers are unhappy
  • By Martin Seligman, Paul Verkuil and Terry Kang
  • Lawyers Weekly
  • 06/12/2008 Make a Comment
  • Contributed by: PrincePlanet ( 6 articles in 2008 )
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Lawyers’ growing unhappiness stems from the nature of their jobs, the law and the people themselves, say Martin Seligman, Paul Verkuil and Terry Kang

Happiness and the law

Much attention has been paid recently to the disillusionment among lawyers. The New York City Bar Association, a leader among bar groups, has focused upon the lawyer's (especially young associate's) ‘quality of life’. Its Task Force Report cites ‘unhappiness’ among young lawyers and measures its impact. The implication and costs of this unhappiness are significant, as 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.

Defining the unhappiness problem

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. This undercurrent of dissatisfaction cannot be ignored or hidden by the many rueful jokes often told by lawyers about lawyers. Among practitioners responding to a 1992 poll, 52 per cent described themselves as dissatisfied, and many are retiring early or leaving the profession altogether. In many cases, the problem is not financial. 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. 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.

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. 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 can injure their clients by failing to provide adequate representation. Unhappiness and depression are intimately associated with passivity and poor productivity at work. The task, then, is to protect the public against harm by addressing potential problems before they rise to the level of disciplinary offences.

That said, we must remember that not all lawyers are unhappy or dysfunctional; indeed, many are very happy and highly functional. And some may channel their unhappiness into professional excellence. So we must be cautious in our conclusions. Law is, after all, a prestigious and remunerative profession and law school classrooms are full of fresh candidates.

Psychological explanations for lawyer unhappiness

Research in positive psychology suggests three principal causes of the demoralization prevailing among lawyers. Each of these causes needs to be understood both on its own terms and in relation to the countervailing benefits each brings.

Pessimism

Research reveals a surprising correlation between pessimism and success in law school. Pessimism encompasses certain ‘positive’ dimensions; it contains what we call – in less pejorative terms – ‘prudence’. A prudent perspective, which requires caution, scepticism and ‘reality-appreciation’, may be an asset for law or other skill-based professions.

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 prudence when they leave the office. The challenge is how to remain prudent professionally and yet contain pessimistic tendencies in domains of life outside the office.

Low Decision Latitude

A second psychological factor producing lawyer unhappiness is low decision latitude, which refers to the number of choices one has or believes one has. Workers in occupations that involve little or no control are at risk for depression and for poor physical health.

Junior associates at major law firms fall into this category. These lawyers often confront situations of high pressure combined with low decision latitude. In these high-pressure, low decision latitude positions, the associates are likely candidates for negative health effects. These same associates are, not surprisingly, candidates for early departure from law firms.

Remedies for pessimism and for low decision latitude

There are well-documented antidotes for the difficulty lawyers face because of their pessimism and low decision latitude. As to pessimism, the antidote is to enlist its opposite dimension: optimism. Optimism is the ability to dispute recurrent catastrophic thoughts effectively, and it can be learned. ‘Flexible optimism’ can be taught to enable lawyers to determine how and in what situations one should use optimism and when to use pessimism, allowing them to use optimism in their personal lives, yet maintain an adaptive pessimism in their professional lives. Learned Optimism (Seligman, 1990) discusses procedures for stably changing pessimism to optimism.

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. Those firms who understand the need to make these changes will benefit.

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 with a set of unused signature strengths, such as leadership, originality, fairness, enthusiasm, perseverance, and social intelligence. As lawyers' jobs are crafted now, these strengths do not get much play, and when situations call for them, they do not necessarily fall to those who have the relevant strengths. 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 well-validated test for signature strengths can be taken at www.reflectivehappiness.com.

The harder case: zero vs. non-zero sum games

Zero-Sum Games and Emotion

A zero-sum game is a familiar occurrence. It is an endeavour in which the net result is zero. For every gain by one side, there is a counterbalancing loss by the other. A non-zero-sum game, in contrast, is an endeavour in which there is a net gain.

The Adversary System as a Zero-Sum Game

The adversary process, which lies at the heart of the American (and Australian) 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 fuelled by negative emotions, can be a source of lawyer demoralization, even if it fulfils a social function. The adversary model is entrenched in the ethics of law. The introduction of more non-zero-sum situations – for example, leaning in the direction of mediation rather than litigation – potentially decreases demoralization only 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.

The Adversary System as a Social Good

Social psychology has analysed the adversary system from the standpoints of fairness and satisfaction. An accepted virtue of the common law, adversarial system of justice is that it leaves more control in the parties (through their attorneys).The civil law, accusatory system, on the other hand, places more control on the judge (or other decision-maker). 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 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 behaviour. 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.

Softening the Adversary Model Through ‘Cooperative’ Litigation

While we accept the social necessity for an adversary model, with its zero-sum implications, we also applaud efforts to separate the two concepts when possible. It has been proposed, for example, that the benefits of the adversary system can be expanded without zero-sum consequences. If litigation itself can be avoided, or our judge cantered system used in a back-up role, the client may still retain control over the outcome while increasing the probability of cooperative solutions. However, cooperating within the normally competitive confines of the adversary system is an ongoing and established practice. There are many ways that cooperation can be incorporated into the adversary system so as to minimize its zero-sum effects, without jeopardizing the social values it serves.

The role and responsibility of law schools

Law schools are both a source of the problem and a necessary part of the solution. The students' adversarial skills are honed by withstanding questioning from sceptical interrogators. Moreover, competition for grades, adds to the challenges. We encourage further study into the relationships among teaching style, grading methods, and the pessimistic tendencies of law students.

Summary and next steps

The pervasive disenchantment among lawyers and the concomitant attrition rate among law firms can be remedied. The solutions will be found not by increasing compensation or perks, but instead by using more valuable, but 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. The prospect of a profession that better understands itself is not utopian. We suggest that by decreasing pessimism, increasing decision latitude, and leavening zero-sum games with a cooperative dimension, the practice of law can become healthier and no less profitable. Admittedly, this is a challenging agenda.

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* This article first appeared in Volume 23 of the Cardozo Law Review (November 2001)

Martin Seligman is the Robert A. Fox Leadership Professor of Psychology, University of Pennsylvania; Paul Verkuil is Professor, Benjamin N. Cardozo School of Law, Yeshiva University; Terry Kang is assistant to Professor Martin Seligman at the University of Pennsylvania .

Source: https://www.lawyersweekly.com.au/articles/Why-lawyers-are-unhappy_z66728.htm


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