Amazon recently unveiled a smarter, more human-like Alexa Plus that purports to be able to hold natural conversations and remember details like your favorite foods and sports teams. The voice assistant also integrates with services like Uber, OpenTable, and Amazon Fresh, so you can book a ride, reserve a table, or order groceries through the app.

Importantly for our purposes, the new improved Alexa can detect your mood too, just as was anticipated in Beyond Smart: Lawyering with Emotional Intelligence. The march of technology outlined in the second edition previews AI that will soon be able to offer artificial emotional intelligence, which this small advance is a step towards.

Why does that matter? Human lawyers have emotional intelligence as their bulwark against a takeover of legal advice by rising technology–humans still want a reassuring, mutually respectful and considerate relationship with whoever is giving them often life- or fortune-saving advice.

However, if human lawyers aren’t able to offer that along with their legal expertise, clients will undoubtedly see what the AI version of that type of legal relationship can offer. We’ve seen clients of AI therapists say they prefer their advice over that of a human because, they say, the AI therapist is less judgmental. The therapy industry is pushing back hard against those who might have that preference, pointing out that AI therapists have a different level of “expertise” and may not provide the best advice, a charge that has likely been leveled against many human therapists as well.

Detecting a client’s mood is a primary but essential step in understanding their issues, their receptivity to advice, their hopes for success or reconciliation. If their lawyers can’t provide that service, there’s an Alexa coming who can.

It’s not a misnomer that lawyers are often called “counselors.” Tangling with the law–as a plaintiff, a defendant, or a participant in business and personal transactions of all kinds–could well bring us to call out for counsel. There’s all those statutes and implications we don’t understand, the question whether the lawyers involved understand our personal issues and context, and then those overwhelming feelings that are rarely acknowledged or discussed. A counselor, please!

Enter a recent study on whether a human trained therapist or an AI-generated chatbot does a better job of counseling.

A team drawn from several universities referred a relationship issue posed by 830 participants–half men and half women in their 40s–to those two resources randomly and examined their written therapeutic approaches.

For starters, the participants could rarely tell whether the advice was being given by a human therapist or a chatbox. The responses written by a chatbox were rated generally higher in key psychotherapy principles by the researchers. And perhaps most importantly, in most cases the participants preferred the chatbox’s approach.

Why?

Five factors were identified: whether the proposed approach “understood the speaker, showed empathy, was appropriate for the therapy setting, was relevant for various cultural backgrounds, and was something a good therapist would say. ChatGPT came out ahead of human therapists particularly around understanding the speaker, showing empathy, and showing cultural competence.” 

We have seen evidence of this sort of AI-generated understanding and empathy in a number of different realms over the last half century–the first therapeutic chatbox, ELIZA, was generated in 1966–and increasingly so during the last decade, particularly relating to giving advice for medical care, mental health and personal therapy.

Also in law, “robot lawyers” have been proved to be effective in advising on various legal matters, in predicting legal outcomes in court, and in providing federal judges with bases for decisions.

Of course, lawyers are rarely trained counselors and their reputations clearly suffer from how obvious that is to many clients. In fact, as has been demonstrated in several studies, empathy may well be where human lawyers can make a last stand against artificially intelligent lawyers who are capable of doing so much, and increasingly much more, of human lawyers’ work.

BUT, if AI can also generate the kind of personal understanding and empathy that human lawyers don’t generate… all bets are off.

It seems appropriate on Super Bowl Sunday to look to Vince Lombardi, considered the greatest football coach of the 20th century, for leadership advice. After Lombardi’s Green Bay Packers defeated the Kansas City Chiefs, 35–10, in Super Bowl I in 1967, they received the World Professional Football Championship Trophy. Lombardi had been the Packers’ head coach for nine years and built a losing team into one of the greatest dynasties in sports history. In 1971, a few years after his death, the trophy was renamed the Vince Lombardi Trophy in his honor.

Perhaps one of the most interesting comments Lombardi made about his leadership style is his conviction that, despite his hard-nosed opinions about the importance of winning–“it’s the only thing”– nevertheless, a leader “must be sensitive to the emotional needs and expectations of others.”

For the hard-nosed leaders in all of us, it’s an important mantra to remember!

Law People Management, LLC, is pleased to announce the publication of the second edition of Beyond Smart: Lawyering with Emotional Intelligence.

This second edition of Ronda Muir’s best-selling ABA guide to emotional intelligence (EI) in law practice reports on the latest developments in the science of EI and how to use EI to address, among other concerns, remote work, personal and workplace Covid “hangovers,” and improving productivity in an increasingly stressed profession.

Beyond Smart: Lawyering with Emotional Intelligence, Second Edition updates the research that shows how lawyers in all walks of the profession can use the burgeoning science of EI to address the pressing issues individual lawyers and practices are currently being confronted with, such as how to:

  • Become smarter, better practitioners – as negotiators, civil and criminal litigators, and judges;
  • Be personally more productive and profitable;
  • Become physically and mentally healthier in an era of high post-Covid stress;
  • Be more effective leaders in an increasingly challenging profession;
  • Develop practices that can thrive in a competitive and technologically complex marketplace, so as to be able to outperform even the rise of artificial intelligence;
  • Build practices that profit from higher emotional intelligence through increased performance, enhanced teamwork, and greater client satisfaction, as well as lower attrition, healthcare, and professional liability costs;
  • Address the workplace issues arising from remote work, high-stress and disengagement that are bedeviling legal practices; and
  • Take the steps available to individuals, law schools, and workplaces to raise personal and profession-wide emotional intelligence.

For legal professionals wanting to improve their productivity, communication, client service and leadership skills and create a high performance, high functioning and more profitable workplace in the 21st century, there is no better guide than the second edition of Beyond Smart: Lawyering with Emotional Intelligence.

To order a copy of the second edition, go to Beyond Smart: Lawyering with Emotional Intelligence.

Engaged employees are involved in and enthusiastic about their work and workplace. Actively disengaged employees are disgruntled and disloyal because most of their workplace needs are unmet. It’s also been called “quiet quitting,” a phenomenon Gallup says may currently describe over half of the American workforce.

This year a New York law firm sued one of its lawyers, alleging both “quiet quitting” that was revealed in inflated time sheets and breach of contract by holding down a second job (her own firm). Such side hustles have also been cited as evidence of how disengaged from their primary position many employees are, and lawyers are among those hustling.

According to a recent Gallup poll, after trending up in recent years, employee engagement in the U.S. is seeing its first year-on-year annual declines in a decade — dropping from 36% engaged employees in 2020 to 34% in 2021 and then 32% in 2022. In the same year, 18% of employees said they were “actively disengaged” (an even more alienated status than quiet quitting), which is the highest that number has been since 2013.

 The engagement elements that declined the most from the pre-pandemic record-high engagement ratio in 2019 were: 

  • clarity of expectations
  • connection to the mission or purpose of the company
  • opportunities to learn and grow
  • opportunities to do what employees do best
  • feeling cared about at work  

Gallup also found a six-point decline in the percentage of employees who are extremely satisfied with their organization as a place to work. These are all indications that employees are feeling more disconnected from their employers. 

  • More employees reported that they don’t know what’s expected of them, don’t feel cared about, don’t see opportunities to learn and grow, and don’t feel connected to their employer’s “mission.”

Young employees report feeling the most disconnected. Engagement for those under 35 decreased by four percentage points; while active disengagement went up by the same amount.

 In comparison to older workers, younger workers experienced more decline in:

  • feeling cared about
  • having someone who encourages their development
  • opportunities to learn and grow
  • their opinions counting
  • having a best friend at work

Women experienced more of a decline in engagement than men, falling four points, while active disengagement increased by three points. Engagement among men declined by only one point and active disengagement increased by the same amount. In comparison to men, women saw larger declines in:

  • feeling cared about at work
  • having someone who encourages their development
  • having progress discussions

Workers who were in jobs that could be done remotely, but were forced to work on-site saw an increase of 7 points in active disengagement.

The most concerning decline for employees across all demographic groups has been in the lack of clear expectations, the most foundational of all engagement elements. Employees cannot perform at a high level when they are confused as to what they are supposed to do. Confused employees are more likely to look for other work and eventually leave the organization.

What could be causing this consistent lack of clarity?

  • Leadership not clearly communicating the organization’s intended cultural values and strategy in the new world of work.
  • Young workers who are in remote or hybrid settings are the most vulnerable — the increased physical separation may contribute to this.  
  • Managers not being in touch with the ongoing work-life challenges.  

What to do? A crucial move that managers can make to improve engagement is to have one-on-one conversations for 15-30 minutes each week with each direct report about goals, customers, wellbeing and recognition. One recent study found that that single activity more than any other develops high performance relationships, leading to a 54% increase in engagement.

You’ve probably read by now of ChatGPT’s legal acumen. ChatGPT averaged C+ when University of Minnesota law professors used it to generate answers in 95 multiple choice and 12 essay questions in exams in four courses. When compared blindly alongside actual students’ tests, ChatGPT scored C+ while the humans averaged B+. While low, if applied across the typical law school curriculum, the chatbot’s scores would be enough to earn a law degree, according to the researchers.

But lawyers who think they have found a shortcut to legal research should beware. On Thursday, June 22, a U.S. judge imposed sanctions on a New York lawyer and his firm who submitted a legal brief that, unknown to him, he said, included six fictitious case citations that had been generated by ChatGPT.

U.S. District Judge P. Kevin Castel ordered lawyer Steven Schwartz and his law firm to pay a $5,000 fine and for the case to be dismissed. The judge found the firm acted in bad faith, making “acts of conscious avoidance and false and misleading statements to the court” and “continued to stand by the fake opinions” even after the court and the other party questioned them. He also ordered the firm to notify all the real judges who were identified as authors of the fake cases.

The judge noted that there is nothing “inherently improper” in lawyers using AI “for assistance,” but that ethics rules require attorneys “ensure the accuracy of their filings.”

The firm argued that it “made a good faith mistake in failing to believe that a piece of technology could be making up cases out of whole cloth.”

Most practitioners see ChatGPT as potentially making them more efficient by quickly producing a rough first draft. Obviously, that draft must be CAREFULLY checked for accuracy. Do not make the “good faith mistake” that got this firm into trouble.

Axios recently reported on the state of loneliness in the US. Included were some astounding stats. A Harvard study found that 1 in 3 Americans feel “serious loneliness”–including 61% of younger people and over 50% of mothers with young kids.  It cites a recent CDC survey in which 63% of young adults were found to be suffering significant symptoms of anxiety or depression, attributed at least in part to loneliness. About half of lonely young adults reported that no one in the past few weeks had “taken more than just a few minutes” to ask how they were doing in a way that made them feel like the person “genuinely cared.”

Why does loneliness matter? “The human brain, having evolved to seek safety in numbers, registers loneliness as a threat,” the New York Times’ John Leland writes, while noting that this epidemic of loneliness predates Covid. Constant exposure to those feelings has profound consequences. Research has linked loneliness to both mental health conditions, such as depression and dementia, and physical ailments like high blood pressure and obesity. One analysis compares the health effect of feeling lonely to smoking 15 cigarettes a day.

    “Greater social connection is associated with a 50 percent reduced risk of early death,” according to an analysis of 148 studies discussed the American Psychological Association. But even those with seemingly robust social lives can be quite lonely, depending on the quality of their relationships, experts say.

    And what does this have to do with lawyers? A survey reported in the Harvard Business Review before the pandemic found that lawyers are the loneliest of all professionals., with that feeling likely driving at least in part the scourges of addiction, depression, stress, burnout and relationship turmoil found in lawyer populations.

    Personality may play a part. Lawyers are overwhelmingly introverts. Introverts often require more solitude for “recharging.” Add that to a heavy workload that values independence and perfection and there may be little time to build meaningful relationships. Also, lawyers rarely know how to practice self-care. Those serving at-risk and traumatized populations often don’t know how to deal with the emotions they hear of and often take on themselves. This vicarious trauma can lead some,  motivated by a concern about burdening others, to keep their struggles to themselves, thereby creating even more distance between them and their sources of support.

    Employers have the specter of their lawyers not only in precarious health but also dispensing legal advice while in a debilitated state. Liability on a number of fronts raises its ugly head, as well as the costs and difficulty of replacing burnt-out workers.

    What can be done? Reconnecting with family and friends can help lonely lawyers. Employers and supervisors should take the time to regularly check in with their charges. Although calling isn’t enough,  says Maninder Kahlon, a professor at the University of Texas’ Dell Medical School, who in a recent study examined loneliness and  the effect of phone calls. “Don’t talk. Ask questions; let them talk. People feel good and connected when what they have to offer is seen as valuable and interesting.”

    Meditation has been shown to be incredibly helpful to reduce stress and to work more effectively. Meditating even for short sessions teaches the mind to be attentive to the present and not dwell on the past or project into the future and can be done anywhere, at any time. University of California, Los Angeles, researchers found that an eight-week meditation program reduced loneliness in older adults and also altered the genes and protein markers of inflammation.

    Therapy of all sorts can help lawyers identify their feelings and strategize about how to improve them. A few firms in the past have had a phycologist come to their offices on a regular basis to meet with anyone who wanted to. The problem is the stigma that is still associated with lawyers seeking help. A more promising development is the availability of therapy and life skills coaching via virtual appointments that are made and conducted confidentially. In one case, a firm leader reported to me that in their six-month trial of the service, their lawyers went through the allotted time in less than two months and one lawyer said she would have committed suicide if it hadn’t been for the assistance.

    Given the extraordinary pressures that lawyers labor under and the value of a healthy professional, isn’t it time to make sure lawyers are supported with easily accessible mental healthcare?

    Let’s take a look at Professional Rules of Conduct with respect to discrimination and harassment with an eye on emotional intelligence. First, a short historical review of relevant rules is in order.

    On February 5, 2018, Resolution 302 was adopted unanimously by the American Bar Association expanding existing provisions in the Model Rules of Professional Conduct, some of which dated back to 1992, in order to “prohibit, prevent, and promptly redress” harassment and retaliation. Those new rules prohibited harassment of or retaliation against certain expanded protected classes by anyone (including third parties) connected with legal work, whether the conduct occurred in legal workplaces or elsewhere. Provisions included requirements, among others, of at least one confidential anonymous reporting method (such as a hotline); prompt, fair investigations of all complaints, with a written resolution to complainant; compensatory and corrective actions, including disciplinary measures; disclosure made to the highest level of management of any settlement amount paid; and regular and effective training programs.

    Rule 8.3 and revised Rule 8.4 of the ABA’s Model Rules of Professional Conduct adopted in August 2016 had already expanded legal workplace misconduct to include harassment and discrimination and lawyers’ failure to report any such misconduct. Now Rule 8.4 (g) prohibits behaving in ways “the attorney knows or should reasonably know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” And Rule 8.3 requires that those who observe another lawyer’s misconduct have an obligation to “inform the appropriate professional authority.”

    Only Alabama, New York and North Carolina have adopted a version of the current Model Rules 8.3 and 8.4 (g). New York adopted updated misconduct rules on June 10, 2022 which significantly tighten much older lax language and differ in some respects, some significantly, from the Models. It removes the old requirement to first exhaust remedies with respect to  “unlawful discrimination.” More importantly, it newly prohibits “harassment, whether or not unlawful,” and defines harassment as including “physical contact, verbal conduct, and/or nonverbal conduct” directed at specific individuals which is derogatory or demeaning. The Model Rules contain no definition. New York’s new rules also expand the prohibition of the suspect conduct from “in the course of representing a client” to include when interacting with witnesses, coworkers, court personnel, lawyers and others, and in managing a law practice. Although not as expansive in some respects as the Model Rules, these New York rules are on the country’s leading edge.

    Even though no jurisdictions have adopted these Model Rules in totality, the ABA is the “national voice of the legal profession,” and their rules may operate as a standard of the profession similarly to how American Medical Association guidelines have been used in malpractice cases. Thus, legal practices that don’t meet the Model Rules’ minimum requirements, even though compliant with state requirements, may still be vulnerable in harassment lawsuits, particularly under tort causes of action.

    The issue around emotional intelligence lies in the new New York Rules of Conduct definition of harassment. The prohibited conduct is that which the lawyer knows or reasonably should know is discrimination or harassment, as defined to include verbal and nonverbal conduct.

    Repeated studies of lawyers confirm that the EI skill they are most deficient in, a deficiency that is widespread in the profession, is recognizing emotional cues–their own and others’. Those cues are both verbal and non-verbal, including facial expressions, body language, intonation and pace.

    There are numerous examples of lawyers, male and female, who have misgauged both how their verbal and non-verbal behavior comes off and the reaction they are getting to that conduct. They have misread the cues both being sent and being sent back. So rather than understanding when there is disinterest, objection or even disgust at their conduct, they may misread that reaction as “playing hard to get,” conspiratorial teasing, or even flirting.

    Make no mistake: there is absolutely no excuse for indefensible behavior. But it is likely that in some, if not many, cases, the “intent” to harass, although not an explicit requirement in the definition of harassment, may not be present where the people involved cannot read social signs. Nor can we honestly revert to the “reasonable lawyer” standard since lawyers in general are not generally “reasonable” on this score. There’s also a question as to how effective it is to charge lawyers with reporting their colleagues’ misconduct to superiors (as is in the ABA Model Rules) who may also have limited ability to read cues.

    Do we forgive and forget? Not at all. What this aspect of lawyer personalities highlights in just this one arena of law is the need, indeed the necessity, of hiring, training and promoting lawyers who are emotionally intelligent in order to raise the level of conduct and lower the risks of disciplinary action and liability coming out of our workplaces.

    The College of Law Practice Management inducted its 2022 Fellows at its annual conference on October 6-7 at Suffolk University Law School in Boston, MA, which was held for the first time in person since 2019.

    The College is an international professional, educational, and honorary association dedicated to “the improvement of law practice management and the enhancement of the professional quality of and public respect for the law.” Fellowship in the College is by invitation only and only awarded to those professionals with outstanding experience, accomplishments, and ethical standards. Since 1994, fewer than 350 Fellows have been admitted. Muir, founder of Law Practice Management LLC and author of Beyond Smart: Lawyering with Emotional Intelligence, was inducted as a Fellow in 2019.

    Eight Fellows made presentations, four about failures and four about successes in effecting change. Failures were recounted by Liam Brown, Chairman and CEO of Elevate Services,  Casey Flaherty, Chief Strategy Officer of Lex Fusion, Jason Barnwell, Assistant General Counsel of Microsoft, and Cat Moon, Director of Innovation Design at Vanderbilt Law School. Brown emphasized the importance of culture in effecting change, and his underestimation of the blocking power of unaddressed fears when the company attempted to introduce software. Flaherty recounted having built a program that law partners said they wanted but then wouldn’t move forward on. Barnwell lauded the necessity of accumulating “failure data” in order to learn how to succeed, and Moon led a “Failure Camp” that helped people couple failure with resilience, an exercise that Royal Bank of Scotland has replicated.

    Presentations about successes in effecting change were made by Steve Poor, Chairman Emeritus of Seyfarth, Alex Hamilton, CEO and Founder of Radiant Law, Connie Brenton, VP of Law, Technology & Operations of NetApp, and Caren Ulrich Stacey, CEO & Founder of Diversity Lab. In introducing robotic process automation for the first time in the legal industry, Poor found that, though successfully efficient, the process made personnel feel insecure and fearful to the point of jeopardizing the initiative. After thoroughly vetting and addressing concerns, those people were brought on board and the program successfully implemented. By turning over 80% of contracts within half a day, an industry best, Hamilton’s Radiant Law outperforms much bigger firms that support large companies’ contract portfolios. That success was achieved by getting rid of time sheets and the billable hour, imbedding continuous improvement and assuring attorneys time to focus and relax. Brenton launched the free Legal Metrics Portal to give beginners through experts help in overcoming stumbling blocks in project management, and Stacey founded a service that vets, according to firms’ needs and cultures, women who have left the legal work force but are qualified to show their merit in a one-year internship, almost 90% of whom have been hired to stay on.

    The consensus takeaway from Fellows was that change is an emotional process, and those who are affected must be addressed directly and sympathetically in order for that change to be successful. The acknowledgement of the role of emotions in law was also validated for us at Law People Management in the critical question of the weekend: how do your lawyers feel on Sunday night about going back to work?

    This year’s InnovAction Awards went to Stacey’s Diversity Lab, Fox Rothschild LLP for processing improvements, and Suffolk University Law School’s Legal Innovation & Technology Lab for quickly setting up during the pandemic a website that provides common documents that can be filled out and filed online with the courts at no cost. One of Suffolk’s graduates was also hailed for having developed the site “Hello Prenup,” with financing from Shark Tank.

    Altogether a year of impressive steps forward for the legal industry!

    While lawyers have enjoyed the high esteem of community members in the distant past, that glow has almost completely faded. In a couple of recent surveys, the depths to which we have sunk have become pretty clear. One survey of those workers “least trusted” by the public placed lawyers at #5, only squeaking ahead of members of congress and car salesmen who are tied at the least trusted, then advertisers at #3, and business execs at #4, with judges at #10, a further blow to the profession.

    Another assessment of how people are thinking about lawyers these days is a list of the “most hated professions,” based on the volume of negative tweets registered over a period of time. Lawyers aced this one, coming in at #1.

    These not-very-scientific surveys are reminiscent of the sentiment that an ABA poll documented almost 30 years ago: the more a person knows about the legal profession and the more he/she/they are in direct personal contact with lawyers, the less they like them, a sentiment expressed by not only criminal clients.

    What could account for such vehemence towards us on the part of the people on whom we rely for our daily bread?

    In one study of doctor interactions with patients, psychologist Nalini Ambady found that patients who were harmed were motivated to sue not because of the doctor’s advice that they were given but because of the way it was given, which they experienced as lacking warmth and being hostile and dominant, a combination that is known to many psychologists as “arrogance.” She found those qualities alone predicted which surgeons got sued and which ones didn’t. Lawyers too often score very high on arrogance.

    Mentioned in one article reviewing a long list of studies finding lawyers sinking to the bottom of whatever index you’re interested in, Princeton University rated  lawyers on par with doctors, scientists, and professors as far as their “competence,” but on approximately the same level as prostitutes on the scale of “warmth”–“below literally every other profession listed, including truck drivers, politicians, taxi drivers, construction workers, garbage collectors.” Not a good look, by anyone’s view.

    That conclusion jibes with what David Maister, the venerable professional services guru had to say about client relationships: “Stated bluntly, professionals say that they want the benefits of romance, yet they still act in ways that suggest that what they are really interested in is a one-night stand.”

    So what’s to be done?

    Here’s Maister’s still-valid advice:

    “The difference between transactions and relationships is similar to the distinction between being an expert to one’s client versus being an advisor.

    An expert’s job is to be right—to solve the client’s problems through the application of technical and professional skill. In order to do this, the expert takes responsibility for the work away from the client and acts as if he or she is ‘in charge’ until the project is done.

    The advisor behaves differently. Rather than being in the right, the advisor’s job is to be helpful, providing guidance, input, and counseling to the client’s own thought and decision-making processes. The client retains control and responsibility at all times; the advisor’s role is subordinate to this, not that of a prime mover.

    Viewed this way, it is easy to see why many professionals, while they may pretend to the virtues of being their client’s advisor, actually do not want to be one. They do not want to advise; they want to take charge.”

    Wanting to “take charge” is consistent, I might add, with being dominant and arrogant.

    A lawyer who is “right” is not that hard to find these days. Evidently one who wants to establish a relationship as an advisor to his/her/their client is.