A recent survey of legal practitioners of all stripes continues to paint a disturbing picture of the mental health of our industry. The Liquid Legal Institute’s The Silent Epidemic: Well-Being and Personal Health of Legal Professionals in Times of Digital Transformation and Social Change updates earlier studies, such as the 2016 Hazelden ABA report–garnered from 15,000 lawyers–on the (poor) state of attorneys’ mental health.

“This new research demonstrates how the pressures felt by many lawyers manifest in health risks,” then ABA President Paulette Brown said of that report, which showed very high levels (higher than in doctors and surgeons) of depression, substance abuse, stress, anxiety, and thoughts of suicide. “Any way you look at it,” one of the study architects said, “this data is very alarming, and paints the picture of an unsustainable professional culture that’s harming too many people. Attorney impairment poses risks to the struggling individuals themselves and to our communities, government, economy and society.”

The LLI survey confirms and expands on those concerns. Although limited to responses from only a dozen practitioners, the responses were strongly in agreement in recognizing the stress in law practice that has only been exacerbated by the COVID pandemic and the increase in the use of technology. What’s the solution? Included in the suggestions of those surveyed are: reforming legal education to include mental health and IT skills, using teams and retreats to reduce loneliness, promoting mindfulness, considering different fee structures that reduce time-based pressures, and encouraging a culture that is not focused on perfectionism.

Loos like we still have a lot of work to do to reduce legal practitioner impairments and their consequences.

 

Having empathy is a critical part of emotional intelligence. First, if you can “feel” another’s feelings, you have more information than if you can’t, and you are more likely to respond to them and their situation in a constructive, even compassionate way.

Many suggest that seeing the personal pain that Covid caused has prompted a higher level of empathy. Images of the devastating human consequences of the war in Ukraine seems to have also raised sympathy for others. Both circumstances, however, hit up against a feature of empathic functioning–people are not able to relate well to more than 150 others. So, a single poster child for any situation–such as President Zelenskyy has become–helps focus and engage our empathy by giving us a real person to relate to. Images of thousands or even hundreds of thousands suffering have less of an impact because of “compassion overload.” There is so much suffering and it is diffused over such a large group that our emotional empathy is overcome.

There is some evidence that women have a slightly higher capacity for empathy than men, who have slightly higher capacities in other areas. There is also evidence that in both professional and personal settings, having robust empathy can work against you–monopolizing your feelings and eventually overwhelming them and your cognitive abilities. For those subject to that kind of impairment, learning to regulate your feelings–learning to focus your empathy’s exposure and to cap how much those feelings affect you becomes essential.

On the other side of the empathy spectrum, psychopaths, Machiavellians and narcissists are distinguished for having low set levels of empathy, making them particularly dangerous in the workplace, where unbridled self-interest can damage an organization.

A recent landmark study reviewed those who have “dark” traits (the “Traditionals”) compared to a group who have dark traits but also a relatively high level of empathy, labeled “Dark Empaths.” Men outnumbered women among both groups. The study concluded that the Dark Empaths had higher extraversion, lower direct and indirect aggression and were generally more “agreeable” than the Traditionals. However, they remained selfish, untrusting and/or contentious and did not differ in their grandiosity and their vulnerability to depression and self-loathing. Notably, the Dark Empaths did display a higher sense of wellbeing,  suggesting they are at least somewhat better at relating interpersonally.

The study points out that some have posited a “Dark” side to Emotional Intelligence, meaning that empathy can facilitate emotional manipulation, deceit and other antisocial behaviors. The difference between such “Dark EI” and the Dark Empath, they point out, is the difference between the ability (Dark EI) and the propensity (Dark Empath) to engage in antagonistic behaviors using effective emotion monitoring and management. Future studies are recommended to determine what that ability vs. propensity means.

One explanation may lie in the difference between cognitive empathy and emotional empathy, which the study admits was not controlled for. Cognitive empathy refers to the capacity to know and understand another’s mental state, while emotional empathy is the ability to resonate with another person on an emotional level, i.e., to vicariously share their feelings. Emotional empathy is usually the type that is referred to in emotional intelligence frameworks.

Why do we in law practice care? The percentage of Traditionals in law practice has been estimated to be 4-6%. The number of Dark Empaths who don’t fully meet the low empathy thresholds may be even greater. The behavior of both groups should be a concern for firms and departments everywhere. But their attributes are not set in stone. Studies have shown that low empathy in psychopaths can be reset at a higher level by consciously and repeatedly going through the thought process of what the other person might be feeling and what that would mean for the appropriate response. It’s a slog, evidently, but still can raise empathic awareness, which can at least improve interpersonal functioning.

This past week, NYC Mayor Adams announced a return to a policing effort referred to as “broken windows.” In the early 1980s, that phrase was introduced by social psychologists and criminologists as a way to enhance livability and reduce major crimes. The premise is:

“If a window in a building is broken and left unrepaired, all the rest of the windows will soon be broken. This is as true in nice neighborhoods as in rundown ones. One un-repaired broken window is a signal that no one cares, and so breaking more windows costs nothing.“

The idea has been expanded to include the importance of community attitudes. People care for and protect spaces that they feel invested in. Residents’ negligence of broken window-type decay signifies a lack of concern for their community. Malcolm Gladwell also refers to this theory with respect to New York City in his book, The Tipping Point.

So what does this have to do with legal practices? A similar phenomenon can occur in a cultural creep when an organization ignores or doesn’t address minor complaints. That initial lack of response can pave the way for the proliferation of “minor” mischief and worse and for workers of all stripes to feel that good behavior is not valued, that an emotional investment in their workplace might not be protected.

While studies point to the power of the initial premise, that an outside force, from the police or a nonprofit, that spruces up a community will help elevate it more permanently–locals start to take pride in better maintenance and outsiders sense the standard of behavior expected–the theory underlying “broken windows” can also be reversed: a community spirit dedicated to keeping windows repaired, not the repairs themselves, can reduce small and also greater crimes.

This is where workers who don’t have “broken windows” support from the top can still have an impact on their workplaces. Coming together to resist and denounce the kind of bad behavior that we all know occurs in the competitive environments of law firms can not only help repair the broken windows as they occur but also produce a community of invested workers who raise the overall culture.

Ten years ago there was talk of the need for an innovative product that could tell people when their stress level became high. One suggestion was for a computer mouse to be equipped to recognize stress and trigger a high-stress signal. That delivery vehicle seemed particularly promising to help lawyers–stress is a common problem that contributes to negative outcomes both physically and mentally in lawyers.

Well, the future is now. A number of high-tech devices now purport to be able to alert us to a high stress level.

One of the early providers, Fitbit, has a new technology that uses sweat data from a built-in EDA sensor to determine stress levels. It also monitors your sleep and physical activity and combines it with your stress levels to produce a stress score. EDA, also referred to as galvanic skin response (GSR), reflects the changes in electrical activity of skin when you produce sweat, which leads to a higher electrical conductance. This technology isn’t really new–law enforcement officials used GSR in the 20th century as a component of lie detector machines.

More recently, in a paper published July 21 in the JMIR Formative Research, a research team from Washington State University’s Voiland College of Engineering and the Elson S. Floyd College of Medicine found that a wearable wristband they are developing can accurately measure a number of physiological responses to stress both in real-time and in real-world situations, a feat that has stymied other devices. Like modern smart watches and bands, these devices measure heart rate, but at a higher reliability, and also detect changes in sweat gland activity, body temperature and skin conductance—all ways our bodies physically respond to stress.

The device can be programmed to light up with notifications or launch an app that asks questions to help people work through a stressful situation. The team is also working on a way to tie the devices to a music app, so that it can automatically select a song to play when stress is detected. The hope is that those types of stress relief reactions can help, for example, substance abusers, which include a large percentage of lawyers, to avoid looking for relief in unhealthy substances.

Based on neuroscience research at the University of Pittsburgh, another device dubbed Apollo delivers a novel touch therapy felt as gentle waves of vibration that stimulates your “rest and digest” parasympathetic nervous response.  When used consistently, Apollo claims to retrain your nervous system to manage stress more effectively on your own.

The simple notification of stress is by itself therapeutic. “Just recognizing stress is one of the best ways to limit the impact of a stressful situation,” one of the head researchers in the Washington State University study said.

While that awareness is a major step forward, the real work is in learning what to do when you realize your stress level is high. Understanding and managing your physical and emotional reactions, knowing when and how to leave the stress situation, learning positive self-talk, and finding your personal stress vulnerabilities and also your best break-stress responses all add up to ways to both avoid and climb out of those high-stress, damaging situations.

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.