Muir appeared on a LegalWomen panel entitled “Communicating Unpopular Points of View in a Motivating Manner” at ALM LegalWeek on Thursday, February 2. The panel discussed different aspects of effective communication and the challenges lawyers and women lawyers face.
From Law People Management to you and yours, we wish you peace, prosperity and good health during the holidays and throughout the New Year.
To that end, we are pleased to announce the publication by the American Bar Association of our book The Emotional Intelligence Edge for 21st Century Lawyers currently scheduled for summer of 2017. A first in the industry, the book tackles how lawyers can overcome the stagnant growth, client dissatisfaction, vulnerable profits and debilitating distress that menace law practice in this century by using the proven advantage that emotional intelligence provides. More to come in the New Year!
As noted in our ever-popular posts Lawyers Lusting After Clients and Their Spouses and Addendum to Lust, forum shopping should be on your mind if you’re looking for some nookie from a client. California may soon become one of the “don’t-even-think-about-it” states.
The California Bar Association has proposed that any sexual relationship arising between a lawyer and his/her client during the course of the representation be prohibited by the California Code of Ethics. For those of you under 30 years old, you may be scrutinizing that proposal with incredulity. Yes, indeed, surprisingly enough, that practice is allowed in many states, including, at least arguably, up till now in California. Muir was cited in an article on the proposed change.
To further expand, the current California rule bars lawyers from coercing sex with a client or demanding sex in exchange for legal representation and also bars sex with clients if the relationship causes the lawyer to perform legal services incompetently. Hmmm. Looks like lots of wiggle room there for a tenacious lawyer. The state bar commission notes that of 205 complaints, the bar undertook disciplinary action in only one instance, which it considers evidence that the old formulation is not adequately protecting clients.
The proposed change, modeled after Rule 1.8 (j) of the ABA Model Rules of Professional Conduct, bans any sex with a client unless there was a sexual relationship before the representation (also an exception in 17 other states), with California specifically allowing advice to spouses and registered domestic partners. It also explicitly prohibits a third party — someone not the client — from pursuing disciplinary charges over any alleged sexual impropriety, just to minimize the angry husband/boyfriend fallout. Privacy and the absolution of consent is cited by lawyers against the proposal, which will have to be approved by the California Supreme Court and bar commission trustees.
Forewarned is forearmed.
Starting today, Monday, November 28, you can listen to a podcast on Gen Why Lawyer that Muir contributed to discussing the issues around the Female Lawyer Exodus, particularly as it relates to Millennials, by going here. You can also link to the podcast on iTunes here.
Here’s a thought that will hopefully make us all more likable around the Thanksgiving turkey: “A growing body of research suggests that the way to influence—and to lead—is to begin with expressing emotional warmth.” That is the conclusion–probably surprising to the legal crowd–of an interesting research study looking at what gives leaders the power of influence.
Whether leaders like it or not, we make judgments about our leaders depending on the emotions they project. That study clarifies that we look primarily at two characteristics: first their warmth, which we believe indicates their trustworthiness, and then their strength or competence, and, importantly, in that order. Moreover, “[T]hese two dimensions account for more than 90% of the variance in our positive or negative impressions.” Suppressing emotional warmth and banking on an impression of competence to drive respect, which lawyers often naturally do, can actually lower our standing in the eyes of others, making them distrustful. As the authors of the study concluded: “Leaders who project strength before establishing trust run the risk of eliciting fear, and along with it a host of dysfunctional behaviors.”
This concept may have been demonstrated in the course of the presidential campaigns of Donald Trump and Hilary Clinton, whatever you think of their respective positions or the election outcome. While neither enjoyed high approval ratings, Trump’s strength was apparently in striking an emotional chord in his supporters, while Clinton’s (lawyerly) strength was in projecting her competence, using lengthy position papers and the mastery of wonky details. Newscasters fretted over whether Trump would ever deliver on the substance and Clinton would ever warm up. In spite of repeated attempts to convince her audiences of her bona fides, “untrustworthy” was one of the recurring characteristics she was saddled with. “Warm” was how both a cautious Paul Ryan and combative Lindsey Graham described Trump after first conferring with him as the presumptive Republican nominee, which assessment, not his position papers, apparently led to at least the beginning of a thawing process.
Leaders who express warmth also help groups cooperate and perform. In an experiment at Yale University, a group of volunteers played the role of managers who worked together to allocate bonuses. An actor planted among them always spoke first, projecting one of four emotional states: active cheerfulness, calm warmth, passive sadness, or irritable hostility. Not only was the actor able to infect the entire group with whatever emotion s/he projected (as a result of the well-established rule of emotional contagion), but more importantly the two positive emotions led both of those groups to improved cooperation and fairness, and also to overall better performance. Similarly, in another study, the leaders determined to be the most effective in the U.S. Navy (hardly a bastion of feel-good leadership) were those who were warmer, more outgoing, emotionally expressive and sociable.
How many lawyer leaders are known for projecting warmth or other positive emotions? This is not a common characteristic. Lawyers often look to elevate their most “competent” peers into management, rather than those most liked. Yet, as a study of 51,836 leaders found, likability has to be a factor since the chance that a manager who is strongly disliked will be considered by his/her organization as a good leader is only about one in 2,000.
Is either warmth or likability factors on your performance review checklist?
My experience with a department chair illustrates the cost of ignoring the value of warmth. The woman was a well-known authority and thought leader in a highly complex niche. Members in her department clearly respected that expertise, but to the person they did not enjoy working with her. She was insular, highly critical, unresponsive to interpersonal conflicts, time management issues and other concerns. When she was criticized by subordinates, the firm and she both reiterated to them her high standing in her legal area. She was unquestionably competent. But this leader, who was so well credentialed and attracted clients, was unable to personally connect with those in her group. Most left the department. Those who couldn’t eventually left the firm. The firm finally made her a department of one partner with frequently rotating subordinates, but the lack of stability, coupled with her poor interpersonal skills, eventually turned off many of her clients. She became furious that the firm wasn’t “backing” her by forcing associates and staff to stay in her department and by pushing back against client dissatisfaction. Eventually she decamped for another firm, which no doubt had to wrestle with these issues again.
Upping our emotional intelligence game will make us not only better lawyers but also better leaders. We need to be able to access positive emotions when needed and then be able to project them in a way that maximizes our influence, both with colleagues and clients. Perhaps that is why “transformative leaders,” i.e. those able to effect significant change, can be identified by their high emotional intelligence scores.
Happy Thanksgiving! Remember to keep it positive.
Here we are into another application-to-law-school season and there are hopes that the numbers are starting to look up. After all, the news over the last few years–the lower number of applicants to law school (declining over 40% to the lowest level in 15 years), the low enrollment rate (2014’s was the lowest since 1987), the lower graduation rate (also down), and the lower rate of those passing the bar (the lowest in some states in 27 years), all culminating in the employment rate for law grads falling in 2014 for the sixth consecutive year–are unsettling statistics for an industry premised on providing over-the-top excellence from the best of the best.
And matters may actually get worse. In an effort to maintain enrollment, Pace Law School in New York is matching the tuition at state schools, and the State University of New York-Buffalo Law School and the University of Iowa College of Law announced they would not require the LSAT for applications from top students from their undergraduate schools (although the ABA caps the percentage of LSAT-less matriculants at schools at 10 percent of a first-year class.). Another tactic, favored by the majority of law schools, is simply to lower admissions standards. “Nine in 10 law schools have allowed LSAT scores of students in the bottom quartile to drop–meaning those whose scores are already the lowest of the class are getting even worse,” according to a report by the nonprofit that creates part of the Bar Exam.
Daniel Rodriguez, dean of Northwestern University School of Law, which has cut its first-year class size by 19 percent since 2011, says he pushed for the school to slim its classes partly because, with fewer jobs available, he thought it was “irresponsible” to keep taking in so many new students.
That’s the way the ABA Rules look. Standard 501 of the ABA Standards and Rules of Procedure for Approval of Law Schools 2015-2016 states that “a school shall not admit an applicant who does not appear capable of satisfactorily completing its program of legal education and being admitted to the bar.”
The ABA Council of the Section of Legal Education and Admissions to the Bar is responsible for enforcing this standard. Unfortunately, for the past five years while law school admissions standards have plummeted, the Council has shown no willingness to use this standard to protect unqualified applicants from being admitted to law school when they have poor prospects of actually becoming a lawyer.
According to Council Chair Justice Rebecca White Berch, “the Council is working on revising the Standards to make them clearer and more easily enforceable.”
In the meantime, the legal field is squarely on the horns of an existential dilemma: do the increasingly lower GPAs, LSAT scores, number of applicants, percentage of applicants admitted, and percentage of graduates passing the bar all undermine the cream-of-the-crop position–as in, we only hire the cream of the crop, which is what makes us so smart/effective/successful?
What exactly is the pitch now of legal employers who are in fact hiring only the cream of a vastly dumbed-down crop, if you will? Now are we of the opinion that it only takes a much less smart person than we previously extolled to be a great lawyer? That technology is supplementing our expertise to such an extent that the human factor is less significant? That the legal robot coming online will make up for any deficits in our skills? That it all comes down to marketing in any event?
Add the impact on the profession of these less competitive newcomers to the loss the industry is already suffering of so many lawyers who had high LSATs, GPAs and law school standings in years past–i.e., women, who are leaving the profession in droves and not looking back, along with a sizable number of male lawyers, as well.
Recently a senior partner at a BigLaw firm assured me that they had no concerns–the Ivys were still churning out enough high performers to stock the top-of-the-line firms. And maybe he’s confident for good reason. Many would argue that the most elite law schools remain just as competitive or even more competitive.
But the drop in applications is evident there as well, making a less-well-pedigreed student body than in years past, regardless of how competitive it is once they are in law school. Since 2011, the number of applicants to law schools ranked in the top 20 by U.S. News has dropped by a median 18%: Yale Law School’s applications dipped 13%, Harvard Law School’s 18%. Columbia, Cornell, Berkeley, NYU, Virginia, UCLA, and USC all saw their applications drop by more than 20%.
“The most urgent challenge facing the top schools is that applications from students with the highest test scores have declined. In 2010, 12,177 people with the highest scores on the LSAT (165 and above, the highest possible score being 180) applied to law school. By 2015, only 6,667 people with those scores applied,” or roughly half.
A link has never been established between GPAs, LSATs, and law school standing nor between any of those factors and success in legal practice. Will we now finally start valuing, admitting and hiring for emotional intelligence, the one well-documented advantage that even someone with lower traditional testing credentials might bring to the legal game?
We can either continue to contend that we are the-smartest-of-the-brood or we can take the position that we are still good lawyers, even though our pedigree stats aren’t as impressive, for the right reasons.
Or, hey, with lower standards, maybe this is a good time to apply to law school.
Muir will be anchoring the discussion on “Building Superior Communication Skills” for the Ontario Bar Association’s professional development program on “New Competencies for Lawyers” on March 4, 2016 in Toronto. She is pleased to be joined for that discussion by David Caruso, of the Yale Center for Emotional Intelligence and one of the developers of the Mayer-Salovey-Caruso Emotional Intelligence Test (MSCEIT), who will also be headlining the day with a discussion of emotional intelligence.
Join us! You can register here.
Having just finished an interesting assignment helping a firm resolve conflict among its ranks, I am freshly reminded of what it is that puts lawyers into conflict and then keeps them there. So please indulge me in this seat-of-the-pants riff (for the record, none of which, of course, applies to any of my clients).
Lawyers are on average highly conflict-averse. Yes, you read that right. Lawyers, who specialize in waging and also resolving conflicts, are nonetheless usually personally and deeply conflict-averse. Yet resolving conflict among lawyers is one of the top concerns of law firm managers (and the rank and file) in many firms nationwide.
What does that mean about lawyers, and even how is that possible?
You could make the gladiator point–lawyers are hired to be the ones who go into battle, whether on the corporate playing fields or in the litigation stadiums. So we probably have aggressive qualities in spades that must leak out into our interactions with each other, as well, right?
There’s some truth to that. But why then are we “conflict-averse,” when that should arguably be our preferred arena?
There’s the “unempowered” theory. We have data that many of the people who put on the mantle of law do so because they do not feel personally powerful. This trait often manifests as aggressive competitiveness to show the world otherwise. So we likely have some underlying underdog-type mentality to start with, with a layer of “I’ll show you” on top.
Nearly all of those same law students start law with the stated ambition of wanting to help those who are underdogs. Interesting coincidence, display of empathy or another empowerment ploy?
In any event, most of those young lawyers are thwarted in that goal because it becomes apparent that the “best” lawyers are making a lot of money working for corporate clients, not underdogs, and these same law students are, as we said, competitively trying to prove their worth. So they end up swallowing their do-good ambition and representing a powerful Fortune 500 company in the arena. This “disillusionment” factor is sometimes cited in trying to account for the profound distress levels of law students and lawyers and also the very high job dissatisfaction that a large portion of practicing lawyers register.
Then there’s the rational/emotional divide. Law schools require applicants to jump over some high hurdles in order to matriculate, but as the multi-year, extensive study by University of California Berkeley professors Schultz and Zedeck determined, the attributes applicants are tested for, and which are then reinforced during law school, are “academic skills,” it being safe to say that “the emotional side of most law students is underdeveloped.”
Some of lawyers’ attributes that we have good data on include low resilience, low sociability, a high incidence of introversion, high skepticism, high urgency and high pessimism, as well as low emotional intelligence, in nearly every case to a startling degree when compared to other professions and the population at large. These attributes mean we lawyers have trouble recovering from set backs, initiating and sustaining relationships (which in turn makes it harder to recover from setbacks), trusting others (which in turn makes it difficult for others to trust us), and being patient, all combined with little ability to recognize or manage the emotional fallout that we and the others around us are awash in.
Why care? Because, as the UC Berkeley professors and others have pointed out, this profile puts lawyers at risk not only for poor lawyering–think weak rainmaking and client service–but also for repeated conflict with colleagues, friends and family, which is then magnified by the additional distress of not having effective coping skills to draw on when the going, as it always does, particularly in law, gets really tough.
Being defensive–the art of fighting back instead of taking to heart any comments that might by some stretch of the imagination be deemed critical–is a common approach by lawyers to interpersonal interactions. The specter of criticism just touches too many nerves. Are you trying to disempower me even further than I already am? Hasn’t my aggressiveness worked to make me look imposing enough to keep you at bay? If I allow myself to entertain the possibility that I have weaknesses, how will I ever recover my confidence? Isn’t this just an exercise in stunting my chances at the career I want? What does that smile on your face mean–that you enjoy beating me up?
So, as in other sports, the best defense is a good offense. And often that offense is against another lawyer, who is, as we’ve just said, defensive, and so on down the line. “Feedback” has not resulted in any improved behavior and everyone is fuming.
So how lawyers get into personal conflict in the first place shouldn’t be such an enigma.
Two other approaches to conflict in the office that lawyers expertly use are suppression and rumination. Their objectives at the outset are opposite–the suppressor wishes to leave behind with alacrity any uncomfortable discussion or feeling, while the ruminator delves deeply into that uncomfortable space again and again, marinating in its painfulness. The suppressor prides her/himself on leaving the past behind (hastily) and moving forward (unfortunately with the monkey firmly planted on his/her back), while the ruminator is dutifully plumbing this terrible situation, over and over again, with particular attention to how s/he was unfairly treated. These approaches have the twin disadvantages of disabling the practitioner from doing anything about the conflict and therefore also allowing the stakes to mount.
The intransigence of these conflicts make even more sense when you add that when someone gets down to actually doing something about the conflicts they are embroiled in, we lawyers have only one approach other than out-and-out combat–unlike corporate and government executives, who have demonstrated that they have three other good options.
Unskilled in the nuances of emotions, relationships, and personal empowerment, lawyers choose avoidance as their preferred course of action. Or inaction, I guess. If we walk past the conflict or hide out in the library during the conflict or talk about anything but the conflict, maybe it will go away, we tell ourselves–resolve itself, become irrelevant, peter out. Those mystifying angry faces or attempts to belittle or win are best ignored, because the only alternative we are schooled in is the scorched-earth firestorm. And, in fact, we don’t really want to go there, particularly when the people or principles involved are important to us or others. While we might not truly understand why, we fear that the chances of recovering from that battle, whether the win is our’s or someone else’s, is slim.
So the conflict not only remains, but often grows, eventually metastasizing into what not only eats at the law firm, but what eventually eats it up. The “emotional labor” it takes to suppress, ruminate and defend all those emotions/threats swirling around us reduces our cognitive abilities dramatically–math abilities plunge, our language and logic decline, our ability to analyze and solve problems suffers. Over time, the wear and tear intellectually, emotionally and physically takes an enormous toll.
Eventually an exhausted partner or a once-promising but now under-performing senior associate or a prize client puzzled (or insulted) by inattentiveness picks up their respective marbles and goes away. Or at least threatens to.
That’s when I usually get the call. It’s a fight over compensation, I’m invariably told.
But it usually isn’t.
In anticipation of a white paper on the persistent question of why there isn’t greater gender diversity in the practice of law, here’s a look at a few of the salient points:
- Women have comprised roughly half of law graduates for a number of decades, and have been consistently over-represented at the top of their classes.
- While many firms have hired women at comparable rates as men for years, women have left the legal field entirely–not just their current job–at over twice the rate of male lawyers, with their flight increasing at each level of seniority.
- Thus, the diminished pipeline and arguably other factors have not produced the numbers of women in senior partner and leadership roles that their representation and performance in law schools over the last decades would seem to promise. At the current rate of making female BigLaw equity partners, in fact, it would take another 165 years for women to catch up.
- Where women have stayed in law, their likelihood of promotion and their compensation at every level is significantly lower than their male counterparts’.
Why are we facing this dilemma?
It’s easy to point to imbedded unconscious (sometimes conscious) bias in a largely white, male profession as the culprit. Easy, but from my perspective, not at all sufficient. The leadership in most firms I work with are genuinely baffled by why they are not able to hold onto some of their brightest attorneys, on whom they have spent significant time and money to hire, employ and train.
Law firms have tried a number of approaches to entice and keep women lawyers. Some make a larger financial investment in women’s networks and affinity groups than employers in many other industries do. Other have adopted flex-time programs of various stripes, and some even have attempted to eliminate wage disparity by creating lockstep compensation at certain levels.
On the women’s side, both from clients and friends, I hear another aspect of the situation: they value efficiency, flexibility, respect for their personal commitments, and harmony in the workplace. They are not finding that in our legal organizations. In a survey of more than 17,000 law firm associates, women rated their firms’ culture, their job satisfaction and their compensation (among others) much lower than their male counterparts did. One study shows women graduating from law school with high confidence and optimism, yet very few feeling that way a few years later. An attorney at a big firm wrote after her first year on the job: “the only way to be successful is to go into the role expecting to be treated poorly.”
According to Harvard research, women want high-paying careers but also expect work and family balance at the same time. A J.D. provides a significantly greater life-time earnings premium for women over other alternatives–even more than men enjoy. But, as More‘s list of top ten careers for women “who want a life” makes clear, law (not surprisingly) isn’t one of them. Interestingly enough, Millennials of both genders share many of the same objectives as women. So even if women continue to disappear from the legal workforce, the tension around these issues is not going to abate for a long time.
Admittedly, law is not a happy place for anyone these days. In a 2012 survey of 65,000 employees, male and female respondents declared “associate attorney” the unhappiest job in America. So women who are voting with their feet may well be sizing up the situation quite adroitly, leaving their colleagues to suffer well-documented out-sized levels of stress, heart disease, depression, substance abuse, divorce and mental illness.
Add that women are still shouldering more domestic and child-rearing tasks than most men, and a typically challenging law firm job becomes even more formidable. Women lawyers are asking how to take the time to give birth and bond with their children without losing out on the increasingly fewer partnership slots to colleagues who don’t take maternity leave or vacations away from clients. One lawyer mom wrote in a clearly defeated departure memo to her employer, “I have not been able to simultaneously meet the demands of career and family, so have chosen to leave private practice, and the practice of law…”
The realities of modern-day legal practice make fashioning a workable solution for women difficult. In a cutthroat environment where clients are leaving law firms at the drop of the hat, responsiveness is one of the things seen as keeping clients loyal without firms having to resort to bargain basement pricing. So lawyers must be available 24/7/365—often viewed as not consistent with having a life.
Yet most of the firm leaders I work with are trying hard to treat their lawyers fairly. They just want a rule, they say. A rule that will achieve more diversity and that can be applied to everyone equally. They will willingly enforce it. What’s the rule, they ask?
Ahh. And there is at least part of the rub.
The long answer is that most lawyers fit within a narrow personality profile—which includes introversion, low empathy, high tolerance of disharmony, low appetite for risk, low resilience, high skepticism, low sociability, limited conflict resolution skills and high pessimism. Some of these attributes assist them in aspects of their careers, but they make effective innovation around talent management particularly challenging. These personalities are most comfortable with fairness that broaches no exceptions, with bright clear lines that are easily explained and demonstrated to have been adhered to, and with emotional detachment. After all, this is the profession of justice.
Women lawyers are most likely to differ from male lawyers in a few crucial personality attributes. Even if they are just as smart or smarter, just as responsible and just as hard working, or more so, just as tough or tougher, the odds are high that the women are significantly more empathic, better at reading emotional cues and more driven to achieve harmony in the workplace. Yes, it matters to them that others are happy and that they are viewed as nice. Particularly given the alternatives.
This profile results in a different vision of fairness– one that takes into consideration individual circumstances and goals and crafts custom treatments that try to address as many of the parties’ objectives as possible. Its success is monitored by checking in with the participants’ emotions and making adjustments as necessary. That sort of fairness rarely can be captured in across-the-board rules, other than in the rule that each person’s needs will be considered and hopefully addressed.
What’s someone driven by harmony doing in law, you might ask? Female attributes are useful to law firms in many respects. Women are the ones who serve successfully on the recruiting, diversity, associate development and pro bono committees, committees where “people skills” are highly valued but which aren’t accorded much credit in firms’ compensation structures. Their skills also are likely to produce superior resolutions of conflict, both within the firm and with third parties. Perhaps most importantly, what adds to the bottom line is lawyers who can build and keep solid relationships with their clients so successfully that those clients would hesitate long and hard before heading to another firm. In my experience, women are often the ones who have those talents.
Because of my work, I am occasionally asked by my friends and colleagues to advise their daughters who are interested in a career in law. The daughters want to know whether they can reliably make a lot of money and still have a life, and the parents want to know whether their daughters can have a life and still make money. After reviewing their personality profile, I look to see whether these women are likely to find a home in law practice that doesn’t offend their values.
I admit that I rarely recommend that the daughters pursue a legal career.
Of course there are many highly competent female lawyers whom the profession is lucky to have. And some number of them are very happy in their work. They are our courageous canaries in the mines of law labor, without whom other women would have even less of a chance. But they often stand against odds that are greatly against many women’s natural inclinations.
What’s to be done? What’s needed is a paradigm shift in culture that is hard to accomplish in one fell swoop. Hiring, training, work assignments, client teams, promotion and compensation will have to be consciously retooled with this recalcitrant problem in mind. All of us—both men and women–are going to have to change our mindset to something that is infinitely more uncomfortable than what we come to intuitively. And it will be at the risk of feeling like we are being pushed to defect to the other side: men will resist becoming too sentimental and women will recoil from feeling too hard-nosed.
We will, in short, have to entertain, respect and even embrace “the other” viewpoint, the true mark of achieving diversity.
Does low emotional intelligence (EI) put lawyers at higher risk for malpractice liability?
Lawyers test at low emotional intelligence compared to the general population and other professions. They are particularly low in a critical component of emotional intelligence: emotional perception, or awareness of their own and others’ emotions.
Being out of touch with one’s emotions has been demonstrated to increase malpractice liability among doctors. An empirical link exists between poor communication and subsequent malpractice litigation among primary care physicians, with poor communication cited in over 40% of medical malpractice suits. Low emotional intelligence often accounts for that poor communication. In a study involving medical students who described their emotional response to a traumatic medical event, those demonstrating “emotional disengagement” were later rated by patients as having poorer specific and overall communication skills.
Low emotional intelligence has also been found to impair the ability of doctors to establish strong relationships with their patients. Strong relationships are apparently what inoculates doctors from medical malpractice claims. “If a doctor and patient have a strong relationship, even if something goes wrong, they are less likely to be sued for it,” says Robin Diamond, chief patient safety officer at Doctors Co., which provides malpractice insurance for 73,000 physicians. In order to reduce malpractice claims, WellStar Health System, with five hospitals and more than 550 doctors, is using emotional intelligence training to help doctors significantly improve their communication.
So are lawyers with relatively low emotional intelligence at higher risk for malpractice claims?
An article written in 2000 entitled “Love, Hate, and Other Emotional Interference in the Lawyer/Client Relationship” highlighted the impact of emotions on lawyer/client relationships. The author detailed a laundry list of instances of lawyerly poor judgment and misconduct resulting in disciplinary sanctions, malpractice liability, civil liability and even criminal liability. The author’s assessment was that these behaviors were the result of poor emotional intelligence, a new concept at the time. She concluded that increasing emotional intelligence in lawyers offered a path to less exposure to those types of liability.
In reviewing the ABA’s Standing Committee on Lawyers Professional Liability from 2000-2007, the Chicago, IL American Bar Association found that: “At the most elemental level of law practice, emotional intelligence appears to be necessary for attorneys to avoid malpractice liability… [N]early one-half of all malpractice claims allege errors relating to professional skills required in pre-trial evaluations, negotiations and settlements. These skills necessarily entail an integration of substantive legal knowledge with a broader range of competencies embraced by emotional intelligence [emphasis added]—listening, understanding, communicating, conceptualizing, anticipating, simulating, and perspective-taking.” See Randall Kiser’s Beyond Right and Wrong: The Power of Effective Decision Making for Attorneys and Clients.
According to the Canadian insurer The Lawyers’ Professional Indemnity Company (LAWPRO), which insures all attorneys in Ontario for malpractice, the major cause of malpractice claims there has shifted during the last thirty years from calendaring mistakes to “attorney/client communication and relationship issues,”exactly what the medical profession sees as the source of malpractice claims. The ABA says the U.S. and LAWPRO “show relatively similar claims experiences.”
One of the factors involved in attorney malpractice may be lawyers’ difficulties in assessing risk, a result attributable at least in part to their low emotional intelligence. An important study found that those with higher emotional understanding could distinguish whether specific emotions they were experiencing were relevant to the decisions they were making involving risk. Those high in EI were able to sort out whether their emotions, such as anxiety, were produced by the characteristics of the deal or by something else. Because of that understanding, they were able to ignore incidental emotions that were not relevant to the deal and make a more balanced decision, sometimes even taking on more risk than they initially considered appropriate.
As the lead author explained: “People often make decisions that are influenced by emotions that have nothing to do with the decisions… But our investigation reveals that if they have emotional intelligence, they are protected from these biases… People who are emotionally intelligent don’t remove all emotions from their decision-making… They remove emotions that have nothing to do with the decision.”
The implication for lawyers is that our low emotional intelligence levels makes us vulnerable to inaccurately assessing the risk associated with a situation because we are unable to accurately assess what our emotions regarding the matter are or what those emotions are caused by. In addition, lawyers’ typically high pessimism would make it hard to expect a positive outcome to a risky situation and our typically low resilience would make it hard to commit to a path that could result in failure, from which it would be difficult to recover.
Hence, logically there would be a self-protective tendency in lawyers to avoid risk that in some cases may not even be there. That notorious aversion to risk may be doing our clients a major disservice, a disservice that could also result in liability.
The high level of distress among lawyers is also a considerable factor–according to some researchers distress alone is sufficient to raise significantly the incidence of legal malpractice. Attributes of emotional distress that prime lawyers for malpractice include short and long-term memory loss, and the inability to solve simple math problems, process language, engage in analytical thinking and critical reasoning, and deal with negative information. Other impairments include a narrowed focus of attention and a reduced capacity to develop creative ideas, empathize or to understand other perspectives. Emotional intelligence provides lawyers with the tools to manage stress before it becomes distress.
Not only is the distressed lawyer at greater risk for malpractice, but his/her firm risks being disciplined for failure to identify and correct an attorney essentially missing in action.
Thus, attorneys who lack emotional intelligence represent a swelling financial risk for law firms and malpractice insurers. See also Randall Kiser’s How Leading Lawyers Think.
Reducing malpractice claims and liability requires that we understand what drives them. Hiring more emotionally intelligent lawyers, making more emotionally intelligent partners, and providing professional training to raise emotional intelligence in our firms can put us on a path to lower malpractice liability and greater profit.