If you looked at the title of this post with some skepticism, that’s understandable. Law is not a profession known for its innovation. Although maybe that’s starting to change.  Jordan Furlong points out that the practice in business of setting up “regulatory-free sandboxes”–where organizations can try out different products or approaches that might otherwise be barred–may be coming to a law firm near you.  While England & Wales are already well ahead of the US on this subject, as they have been on others, he notes that two North American jurisdictions have launched legal sandbox projects: Utah, which is off to a flying start, and British Columbia, which has also raised significant interest.

On April 13, the Law Society of Ontario’s Technology Task Force released a report calling for the establishment of a Regulatory Sandbox for Innovative Technological Legal Services for a five-year pilot program. Ontario is the home to more than one-third of Canada’s lawyers, so any changes approved in that effort could well quickly reshape the legal landscape in the country.

Four days before Ontario released its report, the State Bar of California’s Closing the Justice Gap Working Group, charged with expanding access to justice for Californians, held its most recent meeting, with an agenda that considered recommendations as to what a regulatory sandbox in that state might look like.

Speaking of innovation, Arizona has already opened its legal sector to all types of providers, eliminating the typical ethics rules barring “non-lawyers” from having an economic interest in law firms or participating in fee-sharing (again, following the lead of England & Wales). Arizona may well be the jurisdiction that makes legal sandboxes look no longer like radical departures from the norm, but just a middle-of-the-road step toward reform.

While the legal industry is working through new structures and processes, it’s important to remember that emotional intelligence plays a pivotal role in achieving innovation.

Creativity is a critical skill for successful innovation and it is enhanced by emotional intelligence. “Ironically, when we most need creativity, we tend to be in an emotional state where creativity is least accessible. Fear and distress . . . shut off the cerebral cortex, where creativity and problem-solving live.” Emotional intelligence empowers us to shelve those inhibiting emotions and access constructive feelings that can generate creative solutions.

We can use emotional regulation skills to move at will from one emotion to another, called “emotional agility,” an ability that can get us out of an emotional ditch, regardless of whether that is a negative or positive feeling, and thereby “alleviate stress, reduce errors, become more innovative, and improve job performance.”  “Leaders stumble not because they have undesirable thoughts and feelings—that’s inevitable—but because they get hooked by them, like fish caught on a line . . . When you unhook yourself from your difficult thoughts and emotions, you expand your choices.”

Emotional intelligence also empowers us to make better decisions, particularly in high-risk situations.  Lawyers are risk-averse by nature and a big part of successful innovation is assessing risk.  In an important study, participants with higher emotional perception and emotional understanding appropriately ignored incidental emotions that were irrelevant to evaluating the risk, in some cases resulting in their taking on even more risk.  As the lead author explained: “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.”

Collaboration is a skill dependent on emotional intelligence as well, and it can be critical at times of change. As Harvard professor Heidi Gardner concluded, “Partners who collaborate realize the benefit of generating more sophisticated, innovative and lucrative work.”

Emotional intelligence is also what helps management corral and inspire the troops to make the changes needed to transition to more innovative processes or products. The leader’s EI fuels his or her own innovation and creative problem solving, but also “plays a critical role in enabling and supporting the awakening of creativity” in workers and managing the “tension, conflict, and emotionally charged debates and disagreements” that “engaging in creativity in organizations inevitably creates.” Leaders who know how to use positivity are more successful on this front as well.

Innovation is for law firms too. Buttressing the firm’s overall emotional intelligence will give everyone a better chance at successfully innovating for the future.

 

May 1 is Law Day and ABA Publishing is celebrating this special day by offering a promotion of 30% off on all books and e-books today through Monday, May 3, 2021. The discount code for this sale is LAWDAY2021. Now is your chance to get Beyond Smart: Lawyering with Emotional Intelligence at a substantial discount. Celebrate your career in law with the step up in your skills that emotional intelligence provides!

There’s no question that stress has taken a tremendous toll on lawyers during the pandemic. In many cases the level of work has ramped up, with lawyers trapped in their homes or some other location, tethered to their colleagues and clients 24/7, with little person-to-person interaction. Not only is the workload heavy, but few of the typical places we go for relaxing and resetting have been available—no movie theaters, no live music or sports events, no live lectures or religious gatherings. Even important weddings, christenings and funerals have been put on hold or held with few in attendance. Personal relationships suffer and loneliness has become epidemic. It is no wonder that many lawyers are experiencing record levels of stress and are wondering whether it’s time to leave the law.

And despite a wave of post-pandemic bonuses and salary increases, it’s become quite clear that financial compensation is not sufficient to keep burnout from decimating the ranks.

What can managers do?  Recent advice to a firm manager included the following:

Make contact. It is even more important than ever to reach out to those who are working with you. Not to give a new assignment or see how an existing one is going. Just to ask how they are “feeling,” something lawyers don’t often remember to inquire about. You may get an earful of all that is going badly, but just having someone express concern will help them. You don’t have to solve all the problems you hear about, by the way. The point is to show you care.

Don’t forget the power of positivity. Lawyers have a tendency to be negative, even very negative—partly the result of the pessimism that is a career advantage for most lawyers. Unfortunately, while it may help uncover what could go wrong for a client, that negativity can hurt your own ability to be resilient and your ability to mentor the troops during difficult times. Research has established the power of positivity in helping improve both short term and long term performance. Even if there’s no specific accomplishment that you can recognize, compliment the effort that has been made, which is particularly appreciated under these difficult circumstances. That goes for what you say to yourself, as well as to others.

Your tone matters as much as your words. Interestingly enough, research shows that negative messages delivered with warmth are remembered as positive. Similarly, leadership studies have shown that a leader’s warmth is more influential with those he/she is managing than is his/her expertise in the field. Use that tool to your advantage.

Make seeking professional help an option. There has been too much of a stigma in law attached to addressing persistent issues like depression, substance abuse, and anxiety, debilitating conditions that are particularly prevalent among lawyers and even more common now. We are all better off—firms and clients—if those suffering from such conditions feel free to find help in addressing them.

As prefaced in our post of March 18, political thought happens primarily in the emotional center of the brain, not in the reasoning center. And consuming news with only one viewpoint tends to hardwire certain emotional connections, making it harder to “think” independently about political issues.

In 2019 Gordon Pennycook, a psychology researcher at the University of Regina in Canada, and his team found a variety of factors which may make individuals more or less susceptible to “fake news.” Using news items related to the polarized political climate in the US, they concluded that the abilities to think analytically and open-mindedly were the main drivers in successful fake news detection, a conclusion that might seem to contradict the findings about the emotional aspect of political reasoning.

A follow-up study involving experts in government and public policy sought to build upon Pennycook’s work by assessing fake news detection in a sample of UK participants. Participants’ responses to the veracity of various news items generated an overall fake news detection score. On average, participants were more likely than not to make the correct evaluation. But it was determined that those who tested with higher levels of emotional intelligence were even better at discarding the overly emotional and hyperbolic content that is often part of fake news, letting them place greater focus on the content itself.

This result is somewhat similar to studies of risk assessment. People who are more emotionally intelligent are better able to understand their emotional responses to the possibility of risk and discount those that are not analytically relevant.

The moral of this story? Raising emotional intelligence is not just for the purpose of being “nicer.” Emotionally intelligent people are better able to discern emotion in news content and in their own responses in order, in the end, to be more analytical.

There has long been evidence that political “thinking” is not rational, that in fact it does not involve the reasoning parts of the brain at all, but instead occurs in the emotion-processing center of the brain. In a study using functional neuroimaging (fMRI) on a sample of committed Democrats and Republicans during the three months prior to the U.S. Presidential election of 2004, participants were given a reasoning task in which they had to evaluate negative information about their candidate. “We did not see any increased activation in the parts of the brain normally engaged during reasoning,” said Drew Westen, director of clinical psychology at Emory who led the study. “What we saw instead was a network of emotion circuits lighting up, including circuits involved in regulating emotion and resolving conflicts.”

David S. D’Amato, a lawyer who has written for a number of publications about public policy and other issues, has just published (in a publication promoting libertarian policies) a very interesting article gathering some of the studies that have followed up on that early one.

He points out that it is partisan identity rather than concrete policy preferences that often divides people. Most Americans are not at all ideological, have little information on the history of ideas or the empirical evidence that bears on particular policy questions and are often not able to articulate correctly their own or the other side’s specific policy positions.

D’Amato’s conclusion on partisanship is that group identification is programmed more deeply into our brains than is abstract thinking. “In other words, people will go along with the group, even if the ideas oppose their own ideologies—belonging may have more value than facts,” as one science writer put it.

Evidently these biased processes in our brains that have been put in place over years of evolution and that are instrumental in forming our conclusions about important issues are underneath or beyond our awareness. “To reflect on this for even a moment should fill anyone who aspires to critical thinking or rationality with a kind of dread, for loyalty to the team seems to be overriding the higher faculties of the mind,”  D’Amato says. And the neural pathways that lead us to the same recurring partisan viewpoint seem to be carved largely by repeatedly consuming the same media.

So we predictably fall in line with our entrenched partisan viewpoint regardless of the facts, but further evidence suggests that, because of that partisan influence, we don’t even understand how we’ve come to those opinions.

In one study, the results revealed a conspicuous “introspective blindness to the internal processes leading to a moral or political judgment.” People didn’t seem to understand why they made the decisions they made (or didn’t make), though some exhibited what the researchers call “unconscious detection of self‐​deception”—these subjects were unable to consciously detect that their answers had been influenced, but they did register lower confidence in what were “manipulated choices,” which the authors suggest points to “the existence of a neural mechanism unconsciously monitoring our own thoughts.” Interestingly, results of the study showed that females were more difficult to manipulate in a partisan way than men.

The Dunning‐​Kruger effect (where people think they know a lot more than they actually do) is apparently exaggerated within the context of politics, with low‐​knowledge participants describing themselves as even more knowledgeable than usual once partisanship is a conspicuous factor. Vitor Geraldi Haase and Isabella Starling‐​Alves posit that this kind of self‐​deception,  “a major characteristic of political partisanship,” “probably evolved as an evolutionary adaptive strategy to deal with group dynamics.” Objective truth, meaning roughly an accurate model of reality, is not important, at least not anywhere near as important as conformity with and submission to what is viewed as social reality. So partisanship isn’t as much about politics in the philosophical sense as “party loyalty” that prevails over policy and, again, even over truth.

Partisanship may also quite literally make us dumb. D’Amato calls that entrenched partisanship a kind of mind poisoning, an infection that leads to serious and, importantly, measurable cognitive impairment. In a 2018 study of why and how partisanship impairs the brain’s ability to process information objectively, NYU researchers Jay J. Van Bavel and Andrea Pereira note that “partisanship can alter memory, implicit evaluation, and even perceptual judgments.” Cambridge psychologist Leor Zmigrod writes, “Regardless of the direction and content of their political beliefs, extreme partisans have a similar cognitive profile.” Specifically, partisans show lower levels of cognitive flexibility; even when processing information that has no political character, they are more dogmatic, less adaptable, and less able “to adapt to novel or changing environments and switch between modes of thinking.” If a question mentions a politician or political party, subjects are often unable to accurately assess basic facts. A question with a mild political slant renders many subjects unable to answer a simple question despite having been given the correct answer. Strong political affiliations even affect the ability to perform basic math: if a statistic contradicts a partisan view, the subject will tend to question the calculation rather than update their position.

The only other explanation to explain this recurring profile is that dumb people are just more likely to be committed partisans, Zmigrod suggests, although she is careful to point out that her study doesn’t address that question.

In a groundbreaking study published last summer, a team of researchers led by the University of Exeter’s Darren Schreiber found that nonpartisans’ brains are different from those of their brainwashed brethren, particularly in “regions that are typically involved in social cognition.” According to those researchers, around 40% of Americans do not affiliate with a political party even though many political scientists assume they are merely covert partisans. However, the study found that most of these people are truly nonpartisans and that they are particularly turned off by the heated, often non-rational rhetoric that dominates so much of politics today, leading them to disengage. The researchers are hoping that neuroscience can help bring both partisans and nonpartisans people together by opening up their minds and emotions to rational solutions that can bind the group together. As social policy expert Elizabeth A. Segal writes, “Ultimately our goal should be to build a tribe that we all belong to: that of humanity.”

Ideally, the authors of an NYU study say, we should try to “de-bias” our information processing in order to create a shared reality “across partisan divides.” That involves consuming diverse sources of news, listening to other viewpoints and learning to tolerate the discomfort of emotional reactions to “facts” that we would rather not know about, or would prefer to explain away.

Following up on our post of November 18, 2020, from across the pond comes further questioning of the value of implicit bias training. Ministers in the UK government have scrapped the training for civil servants in England and urge that it be ended for other public employees as well.

British psychologist Patrick Forscher, who examined more than 400 studies on unconscious bias, came up with similar conclusions as those recited in our previous post, finding that few studies measured changes over time, and among “the most robust of those that did,” “changes in implicit bias don’t last.” He suggested that such training had too often been used by employers as a “catch all” which failed to tackle the specific barriers for different groups. Halima Begum, chief executive of the Runnymede Trust race equality think tank, agreed that unconscious bias training is not always effective – and recognised the dangers of a corporate “diversity industry” wanting to have “off the shelf” training.

Again, the problem is not one of failing to see bias at work, it appears, but of how to eliminate that bias in a predictably effective way. Changing minds is a much harder lift than changing behaviors, as nearly all psychologists would attest. For example, a straightforward and highly successful way to reform psychopaths, it appears, has been identified in research, in which “switching on” higher levels of empathy has been obtained through suggestive imagining. Those involved were identified as psychopaths through brain imaging because they had certain brain attributes. After the suggested therapy, they did not suddenly have brains that were “normal,” but rather they were able to display a heightened sense of other people’s feelings to at least the degree that for some period of time improved their behavior.

Bias, too, is often identified as emanating from a lack of sufficient empathy. While not an exact analogy, implicit bias training comes up against a similar challenge as has reeducating psychopaths. The problem is the how, of course–exactly how in the real world does one routinely identify those with physiologically low empathy levels, determined by whoever claims to be able to do that, and then how specifically do we “reeducate” them to the degree that they are able to carry on “normal” functioning, whatever that is as determined by whoever claims to know, for a lengthy period of time. So while there has been research nibbling around the edges of solving the very real problem of the misbehavior of psychopaths in our culture and even though there is evidence of what might well impact that problem, there is hardly a reliable method with which to move forward.

Much about thinking has a physiological aspect to it involving a complex balance between the rational prefrontal cortex and the emotional amygdala. What levels of stimulus trigger aspects of each, how much flexibility there is in their operations (which can result in “black/white” thinking, for example), which counteractions of one against the other do or don’t exist–these are often pre-wired and highly individual conditions that “training” will have little impact on physiologically. The best that we can realistically hope for is that there will be a learned response to certain circumstances that a biased person can call upon to change specific behaviors for a period of time. The same hope that we might have for psychopaths. The problem still being identifying who needs and therefore might benefit from such “training,” what that consists of and how to make its impact last.

An important finding in the research regarding raising empathy in psychopaths was that, more than the control subjects, they had to consciously, deliberately activate the mechanisms that would tend to boost their empathy. The problem, the researchers found, was regardless of that ability, psychopaths display low motivation for changing their behavior and are thus less likely to activate those mechanisms, which “represents an unfortunate challenge.” They can, they really just don’t want to be more empathic.

Shall we undertake a company-wide or country-wide brain scan to determine those who are not using their fully empathy capacity? Who decides what amounts to empathy that is sufficient and the level which needs to be reeducated? What reeducation program is used and even if one is decided on, how can that program be made to produce changes that are likely to last? Does there need to be a required “re-inoculation” periodically? What if, as the research into implicit bias training seems to imply, some people just don’t want to be less biased, regardless of how well trained they are?

Apart from screening new recruits for diversity of thought, as we advocated in our last post on implicit bias, what seems like the much more effective, least invasive method to changing biased decisions at work by those currently working there is to simply have a hard set of behaviors that are condoned and those that are endorsed. Those workers who train themselves to abide by those rules are the keepers, regardless of their personal bias, unconscious or otherwise. Those who don’t are asked to leave. Of course, in this ongoing cycle of questions, who comes up with those rules becomes important. Perhaps that is where the potential for brain imaging, reeducation, etc. should come into play.

Whatever you think of the recent elections, it’s fairly clear that the nation was strongly divided on its preferred Presidential candidate. So it’s not surprising that in closely fought states there are legal challenges to the tally. What is surprising is that there has been a wave of bullying to get the lawyers involved in those challenges to drop their representation.

In order to claim that we are a fair society, we have to react to the prior paragraph with the same scrutiny regardless of which political party is the challenged or the challenger. Lawyers bear the burden of acting on behalf of clients to the best of their ability, regardless of their personal opinions, and sometimes the courage to do so runs against substantial public opinion.  And even their own convictions. Any defense lawyer who has represented a person accused of what the public considers a heinous crime–child sexual abuses, brutal murders, financial crimes against the elderly–knows the weight of that undertaking. A similar level of courage and commitment was illustrated in David Boies’ representation of Al  Gore in the Florida challenge he made in 2000–a challenge that roughly half of the country was against.

Some wondered whether the principle of representation for all started to erode, however, when a major law firm chose to withdraw from representing a controversial position simply because of the backlash that started to build. In 2011, King & Spalding withdrew from its representation of the U.S. House of Representatives as it sought to uphold the Defense of Marriage Act (DOMA) outlawing same-sex marriages. The chairman of the firm, which has long been an advocate of gay rights, determined that “the process used for vetting this engagement was inadequate,” implying that the intake process should have included the consideration of the firm’s political opinions and/or any potential public backlash. It should be noted that the firm had also over the years determined it could defend terrorist suspects imprisoned at Guantanamo and the NRA in a number of matters regarding the right to bear arms, despite the onslaught of public opinion opposed to those representations. The partner in charge of the DOMA case, a former U.S. solicitor general, resigned from the firm “out of the firmly held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do.”

News outlets including The New York Times and The Washington Post condemned the withdrawal in response to outside bullying.

And now we have several law firms who were engaged to challenge the Pennsylvania election results withdrawing after “extreme pressure”–“an advertising and public-shaming campaign” that allegedly included not only threats by and to clients, but also  threats of bodily harm and death against the individual lawyers and their families.

There are several reasons why a lawyer might legitimately ask to be removed from a lawsuit. His/her own personal opinion of the advisability of the position or even an assessment of the strength of the case is usually not one. Far beyond justification for withdrawal is the assessment of the “public” (pre-trial) that the case is not a defensible one or that a win would go against public opinion. It is the job of the courts to decide what is a legitimate claim and whether or not it succeeds. Which they can’t do if the challengers can’t engage counsel. Once decided by the courts, it is up to the legislature whether to change the law that produced a result a portion of the public doesn’t like.

As one pundit asked:  “What is the end game here? When groups pressure a firm into dropping representation for an unpopular client, is the ultimate goal to have only bad lawyers defend an unpopular law, or no lawyers at all? And what kind of legal victory would either of those ends represent?”

The country is divided. Families are divided. Legal positions and court findings could go either way in any given case. These particular lawsuits may well turn out to be losers. What a constitutionally based society can’t do is deny counsel, most particularly through bullying and threats, to those whose rights are eligible to be determined by the courts. And suggesting that a primary consideration in the intake process should be “cultural fit with the firm,” whatever that means, degrades the calling of the legal profession. Forced “group think” becomes a real concern if divergent viewpoints in our society can’t get a full-throttled hearing. Those who are rightfully concerned about promoting diversity should be wary of any person or organization that pressures legal counsel to drop the representation of a client simply because others, even loud and well-organized others–including those inside the firm, don’t support that client’s views.

This is the time when a firm’s values become transparent, to use that overused word. Rather than have opposing attitudes creep up on you and divide your workforce, force the issue of  values in the first instance. Firms must consciously, affirmatively choose those that matter above everything else and make clear to everyone their primacy — where necessary, by letting anyone who doesn’t share those values walk out the door. We’re not talking about political stances. The firm value in question is the attitude that they bring to taking on controversial issues. As another pundit said, “No good culture ever developed laissez-faire.” And a house divided…

Diversity is well-established as a way to improve organizational performance. Most legal organizations say, rightly, that they value diversity and are attempting to improve their numbers, but how to do that often remains an open question. The statistics of gender and racial diversity at all seniority levels are dismally stuck in low digits. Should we change our hiring criteria? Reconsider our evaluation and promotion standards? Add additional training for those most at risk for not succeeding? Or add training throughout the organization to eliminate the biases that may impede diversity success? That last approach has been a popular step.

While there are many arguments (that won’t be recited here) as to how and why diversity training programs are not moving the needle, a recent article by Dr. Art Markman, a professor of Psychology and Marketing at the University of Texas and the Founding Director of the Program in the Human Dimensions of Organizations, has made some strong claims as to why implicit bias training, currently in vogue, is “rarely effective.”

Professor Markman points out that the concept of implicit bias allows people to believe they are not biased except, perhaps, in some unconscious instances that are not intentional. It avoids a head-on examination of one’s prejudices, which is often highly resisted. Yet, Bertram Gawronski‘s review of studies using the Implicit Association Test, the standard assessment for implicit bias, suggests that most people are in fact aware of their biases. And a comprehensive analysis of techniques used for reducing the influence of implicit associations found that, while some strategies may initially improve people’s performance on the Implicit Association Test, those effects are short-lived, with little change in performance in the long run.

What Markham suggests is that organizations explicitly hire a diverse base of employees, provide mentoring for future leaders, and seek out opportunities to enable more women and people of color to take on key roles. He acknowledges that sticky wicket that many firms and departments have run into. These changes in hiring, mentoring and promotion policies may be quite unpopular among those with whom the diverse candidates are competing. Markham apparently recommends making these diversity goals something that all employees embrace, a good objective, to be sure, but again not one easily accomplished.

The other way to approach this is to articulate the value of diversity in thought and skills, rather than judging diversity candidates by the same group-think standards that have brought the white middle-class professionals to a majority or, alternatively,  by the simple fact of their race or gender, which may or may not achieve true attitude diversity. This is a goal which can be embraced by everyone because it provides opportunity for all races, genders and orientations.  And research shows that using these kinds of skills as a guide for hiring, mentoring and promoting does in fact on its own merits result in more racial, economic and gender diversity. Diversity in those skills is also truly valuable to the organization. Hiring for emotional intelligence, for example, or for atypical thinking processes, as indicated by assessments like MBTI and a number of others, can bring more diversity and more productivity to our workforces than we’ve had for generations.

At a time when many of us are flagging in terms of coping with stress and maintaining productivity, a study reported by SixSeconds, an emotional intelligence advocacy organization, may give some insight into a path forward.  After first year medical residents were provided with a 30-minute introduction to emotional intelligence and three 45-minute workshops on using emotional intelligence to cope with stress, they showed a marked improvement in their risk for burnout, a long-standing scourge of the medical profession.

Burnout is a risk for many workers, and certainly for lawyers, particularly at this time of such extraordinary stress. The consequence of lawyers’ low resilience and burnout is not only stagnant or upended careers, but also a high risk of suicide attempts and suicide, as the 2016 ABA Hazelden Report confirmed.

Every organization owes it to its workers and its bottom line to look for indications of high stress, which is likely to be extensive these days, and to establish a program for equipping stressed personnel with the skills to avoid burnout.