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A Feeling for Ethics

Posted in Communication, Emotional Intelligence, Ethics, Leadership, Management, Professional Development, Risk Management

Gordon Caplan, the co-chair at the AmLaw 100 law firm Wilkie Farr who was caught up in the FBI’s recent college admission scandal, was recorded saying, while discussing plans to fraudulently get his daughter into college: “I’m not worried about the moral issue here.” Then he made an interesting comment: “To be honest, it feels a little weird.”

To be honest, feelings are one of our most important resources for guiding ethical conduct.

According to Hebrew University economics professor Eyal Winter, author of Feeling Smart: Why Our Emotions Are More Rational Than We Think, “we know that the types of decisions that invoke perhaps the most intensive collaboration between rationality and emotions are ethical or moral considerations.”

But lawyers are at risk for not being able to engage those emotions for this very important, complex task. First, the emotional intelligence skill that lawyers score lowest in is the ability to recognize their own and others’ emotions. And even if they were to recognize those emotions, the emotional management skill lawyers are most competent at is suppression–which fails miserably to rid ourselves of those emotions and compounds the problem by intensifying those very emotions while also reducing the cognitive functioning necessary to recognize and deal with them.

The memory box of all our emotional experiences accumulating over a lifetime in our emotional brain–the amygdala–is the place our “gut” feelings or intuitions develop. Awareness of those feelings, which embody past responses to ethical decisions, guides us as to how decisions being made today might make us feel, thereby leading us to avoid what we have learned makes us feel guilty or otherwise bad. Even weird.

And that’s why emotional intelligence plays such an important role in ethical conduct. Research has established that those who are more emotionally intelligent can more accurately assess the ethical risks involved in a situation, better understand which ethical standards are appropriate, and recognize and deal better with the emotional fallout from ethical choices, especially when they have been in the position of having to ignore or act against their personal values. Putting our personal feelings aside to vigorously represent “personally repugnant clients and causes,” for example, can dull our sensitivity, if we are not vigilant, to the emotional discomfort that potential misconduct would and should engender.

Another emotional intelligence skill–empathy–gives a clear edge in making ethical decisions, since people act more ethically when they can put themselves in someone else’s shoes. Empathy also gives the insight to recognize when and how others are making ethical decisions, an ability which in turn motivates peer pressure and empowers whistle blowing.

Low emotional intelligence often signals low empathy. One’s empathy may be low because of a simple lack of exercise. In one study, upper-class people with higher educations and greater wealth exhibited lower empathy simply because, researchers theorized, they weren’t as dependent on others and their emotions and therefore tapped in to them empathically less often.

The healthcare industry actively promotes emotional intelligence to improve ethical conduct. Studies undertaken to raise ethical behavior in a healthcare setting conclude that the overall emotional intelligence of hospital employees had a significant impact on their ethical behavior, with higher emotional intelligence scores predicting higher performance in ethics.

So what about lawyers? The Carnegie Foundation’s 2007 report found that one of traditional legal education’s primary deficits is the failure to produce graduates who have “ethical and social skills,” noting that “law students’ moral reasoning does not appear to develop to any significant degree during law school,” nor, tellingly, later during practice. There is some evidence that students’ ethics actually decline during law school.

Commentators have remarked for years on the ongoing decline in ethical performance among lawyers: not the least of whom was Warren Burger in an article published over 20 years ago entitled “The Decline of Professionalism.” In a 2016 survey, 37% of respondents rated the honesty and ethical standards of lawyers low or very low, a rating worse than medical professionals, police, clergy, accountants, building contractors, journalists, bankers, real estate agents, and business executives.

Unfortunately, what we know about lawyers’ skills and conduct as a general matter justifies the public’s general distrust in the profession. Among many incidents reported of failed lawyerly ethics, in 2016 a federal judge ruled that Department of Justice prosecutors who appeared in 26 states had to attend ethics training in light of their repeated misconduct in thousands of migrant lawsuits. Another 2016 decision vacated a $200 million infringement award because of the misconduct of the awardee’s in-house counsel.

Why this epidemic of ethical misconduct? Albert Bandura, a psychology professor at Stanford University, researched what makes some people “disengage” from what they know to be morally appropriate, an inquiry “highly relevant to understanding unethical behavior in 21st century organizations.” Moral disengagement occupies the place between normal ethical behavior and the more extreme lack of ethical restraints exhibited by the personality disorders like psychopathy.

Bandura has identified “eight cognitive tactics” centered on compartmentalization and justification that deactivate our ethics. We lawyers are, of course, by both training and practice, particularly good at cognitively compartmentalizing and justifying actions, including our and our clients’ most suspect ones.

According to Bandura, people with one or more of the following four personal attributes will be most predisposed to moral disengagement: low empathy, high cynicism, lack of control, and weak moral identity. Of these predispositions, some lawyers likely fall into all four, exhibiting low empathy, high cynicism (also known as skepticism), feelings of lack of control over their professional work (similar to Professor Martin Seligman’s identification of low decision latitude as a prevailing attribute of many law practices), and a weak moral identity (as flagged by the Carnegie Foundation report).

Another factor that may be contributing to poor ethical performance appears to be social-economic standing. A group of seven studies found that upper-class individuals tend to behave more unethically than lower-class individuals, at least in less major or obviously “illegal” ways—they are more likely to break the law while driving, take valued goods from others, lie in a negotiation, cheat to increase their chances of winning a prize, and endorse unethical behavior at work, in part because they have more favorable attitudes toward greed. Sound familiar?

Perhaps the most surprising development in this school admissions matter is Willkie Farr’s response to the charges against Caplan. The firm’s statement reads: “This is a personal matter and does not involve Willkie or any of its clients. In light of the seriousness of the matter, Mr. Caplan has been placed on a leave of absence from the Firm and will have no further Firm management responsibilities.” This is quite an interesting stance. Rather than giving Caplan a leave of absence simply pending adjudication, the firm noted that the charges involve a personal matter. Are they implying that personal ethics are different from professional ethics?  Or that we can be upstanding in one area and not in the other?

Personal conduct and professional conduct are neuro-scientifically related, since we have to draw on the same memory box and reason in both spheres. Don’t we now acknowledge that lawyers and other professionals are subject to being fired from their professional gig because of domestic violence, sexual harassment and sexual misconduct, for example, personal conduct that doesn’t necessarily occur in the office? Shouldn’t Caplan’s alleged personally unethical conduct “involve” his professional standing? Wouldn’t his clients think it might?

What has become of the image of lawyers as pillars of personal integrity–in their firms, their communities and their profession? It’s an image without a distinction between what is done out in the pubic and what is done behind closed doors, or, in this case, on the phone. We should all have higher expectations of ourselves and those we work with.

Back in the 2014 Kayser scandal, according to the ABA Journal, 15 of 16 lawyers — including the then-president of the ABA itself — who were approached by a plant to help launder money “offered advice on how [Kayser] could buy pricey Manhattan real estate without revealing his identity.” Their defense was that none of them took on the client, but only one lawyer declined to give any advice at all, saying “my standards are higher.”

What we know is that Mr. Caplan felt appropriately uncomfortable in this situation, even though he apparently didn’t consciously recognize it as presenting a “moral issue.” Unfortunately, Mr. Caplan didn’t pay much attention to those uncomfortable feelings. After admitting that this all felt “a little weird,” his next comment was: “But.”

Charles Darwin said this in his autobiography as he looked back on a life of professional achievements: “My mind seems to have become a kind of machine for grinding general laws out of large collections of facts . . . . [resulting in] a loss of happiness, and may possibly be injurious to the intellect, and more probably to the moral character, by enfeebling the emotional part of our nature.”

Lawyers need to pay close attention to their feelings when confronted with any situation that might pose ethical questions. It is an opportunity to draw on and build an important resource–our emotions–for guiding ethical conduct. Improving our emotional intelligence skills of recognizing emotional cues, managing those emotions and having emotional empathy for others greatly improves the odds of our making the ethically correct decision. In all aspects of our lives.

Muir to Speak at University of California at Irvine School of Law Symposium on Wellness

Posted in Announcements, Emotional Intelligence, Law Education, Professional Development, Recruitment, Retention, Risk Management, Wellness, Work/Life Balance

The Mental Health in Law Society’s 2019 Symposium at the University of California at Irvine School of Law to be held on March 22 and 23 will be examining different methods for wellness development in legal education and in the legal profession. Muir will be on the Saturday morning panel with Anne Brafford, the author of Positive Professionals, and Patrick Krill, the author of the 2016 ABA Hazelden report on the extraordinary signs of distress in the legal industry.

Muir will be discussing emotional intelligence, the role it plays in developing wellness and how legal institutions and organizations can help increase emotional intelligence.

Addressing Firms’ Greatest Challenge

Posted in Client Service, Emotional Intelligence, Law Education, Management, Mentoring, Productivity, Professional Development, Recruitment, Retention, Risk Management

A recent survey by Robert Half Legal found that 83% of law firm respondents noted increasing demand over the last year for legal services. That is a welcome new trend after years of lower demand and lost legal jobs. But that promising development comes with a new challenge for legal employers–hiring the best legal professionals to provide those services.

One would think that, with approximately twice as many law students graduating in any given year as there are new legal jobs, finding eager and qualified new employees would not be such a challenge. But the wording is important: “recruiting highly skilled legal professionals” was identified by the respondents as the firms’ greatest challenge.

What makes for highly skilled legal professionals? The graduates have all been vetted by, admitted to and graduated from an ABA-accredited law school, all have passed one or more bar exams, and theoretically therefore arrive at the recruitment interview with all the skill that our legal education system offers. Aren’t the best candidates simply the ones with the highest grades? What’s the challenge?

Let’s start with the ground-breaking, extensive study done by Marjorie Schultz (University of California-Berkeley law school professor) and Sheldon Zedeck (U Cal-Berkeley psychology professor) in 2011 about what skills are needed to practice law well. A few of those 26 skills that they established involve cognitive reasoning, analysis and researching capabilities, as might be expected, although there are no “subject matter” skills. As most of us in the fast-paced digital age realize, any subject matter expertise that one graduates with is likely outdated in a matter of months or years, at best. So becoming a subject matter “expert” is a continual process of mining, analyzing and applying both historical and rapidly-evolving current information to our clients’ issues. That’s when those cognitive attributes are important.

The other 20+ skills they found necessary to practice law well involve “non-cognitive” skills, like establishing and maintaining healthy relationships with clients and colleagues, giving practical, empathic advice, managing one’s own stress, work flow and expressions, mentoring, managing and influencing others, negotiating and advocating, and networking and developing business, to name a few. These are skills that virtually no law school teaches and that we know from reliable data lawyers are often weak in.

As stated in the study, these “non-cognitive” constructs “correlated at a higher level of significance with lawyer performance factors than did LSAT scores, UGPA [undergraduate grade point average], or Index [combinations of those factors].”

So the search for “skilled” legal professionals takes on a more daunting quality in light of this information. No transcript will identify these skills. Few interviewers are equipped to identify them either.

The result is that the legal industry suffers from a frequent mismatch of employee skills and job requirements–resulting in high rates of attrition, client dissatisfaction, malpractice and disciplinary actions, and lawyer distress and burnout.

Robert Half Legal suggests that law firms try to coax new lawyers into their firms by offering more positive cultures, expanded professional development training, and more benefits, essentially to help offset the effects of that mismatch.

At some point–hopefully well before more organizations implode and talented individuals leave–we as an industry will have to start focusing on the skills that really matter in a fast-paced, high-pressure, high-performing profession that is in the end measured by client service–that is, identifying, training and supporting lawyers who can manage the daunting task of establishing healthy, sustainable practices. That involves a set of skills that is of a different type and magnitude than those cognitive skills we traditionally focus on.

As the Shultz/Zedeck study concluded: those who possess the few cognitive skills that law schools teach and measure–and that employers tend to focus on–are “unlikely to exhibit [the] strong emotional development” necessary to practice law well. Producing graduates with that strong emotional development may well be our profession’s greatest challenge.

 

South Carolina Inns of Court

Posted in Emotional Intelligence

Muir spoke to a packed crowd of members of the Columbia SC Inns of Court–litigators, judges and law students–on Tuesday, February 19th in Columbia, South Carolina on Emotional Intelligence and the Law. Topics touched on were lawyers’ attitudes and scores regarding emotions–with a short quiz for the audience, the impact that emotions have on our perceptions, judgments and performance, and how to increase our emotional intelligence.

Artificial Emotional Intelligence Predicts Election Results

Posted in Communication, Emotional Intelligence, Innovation

Research long ago revealed that the portion of the brain that lights up when politics are being discussed is the emotional area–the limbic/amygdala area of the brain–not the rational prefrontal cortex. In short, politics is not a topic about which we are rational–a conclusion that these days may be particularly apparent.

Gauging emotional reactions–how people feel–is more and more the measure for determining strategies in advertising, marketing, and communication of all types, but here is a recent example of how important “how people feel” is to not only their purchasing preferences but their political preferences as well.

A political forecasting tool using artificial emotional intelligence recently accurately predicted the outcome of the Illinois governor race. BPU Holdings’ ZimGo Polling reported on November 5th that Pritzker would win the race with 52% of the vote vs. Rauner’s 39%, falling within 2% of the actual results. The Korean version of the product proved more accurate than six other polling services in the most recent South Korean presidential election.

Crowing about its accuracy, ZimGo Polling is claiming that its product proves that “older legacy polling methods”–using the telephone or other intrusive methods–“have earned their place in the history books alongside the outdated rotary phone and the floppy disk.” Simply asking people how they intend to vote is no longer reliable. That is, in the end, a rational question to an emotional condition.

This new product’s results are achieved by accurately assessing emotional sentiment by sifting through the half billion daily tweets and other public forums touching on the race. The program scores entire paragraphs, including emoticons, and can interpret slang. Seth Grimes, principal analyst for Alta Plana, which specializes in natural language processing, confirms that, “Attention shares and decisions are driven as much by emotion as by fact. Today’s competitive campaigns apply technology to understand both fact and feeling and shape opinion.”

BPU Holdings promotes itself as a company “dedicated to generating the most advanced, usable, secure and innovative Artificial Emotional Intelligence (AEI) technology in the world. Artificial Intelligence (AI) emulates how people think — AEI emulates how people feel.” That certainly sounds like one for the importance of emotional intelligence.

But note Grimes’ last point. Not only is emotion the better gauge of how people intend to vote but it may also be one of the better vehicles for changing opinions. Therein lies the challenge for regulators and the public at large. Emotional intelligence, the real human variety, gives people the tools to recognize, understand and manage their own and others’ emotions. It is, however, a value-neutral ability; that is, it can be used toward achieving any end, whether socially good or bad. Simply being able to employ emotionally intelligent strategies–strategies that successfully appeal to the emotions–is not necessarily what’s best for the country at large, even if they garner the most votes.

So here we have a conundrum. Do people know in a rational way what’s good for the country politically? Or do they just like to feel good? Emotional intelligence at its best engages the cognitive part of the brain to help assess emotional data and responses. As Nobel Prize winner Daniel Kahneman pointed out in his best-selling Thinking Fast and Slow, combining the strengths of both emotions (his System 1) and rational thought (his System 2) achieves the best results.

Politics may well be an area where engaging our rational thought to test and try our emotional preferences is highly advisable. Yes, puppies are adorable, and something like “puppies for all” might be emotionally appealing. And maybe even politically or economically possible. But we have to leaven those emotional reactions–which make us feel compassionate or generous or empowered–with rational input.

Using Emotional Intelligence Testing in Hiring

Posted in Emotional Intelligence, Recruitment, Retention, Risk Management, Uncategorized

A recent study published in the Journal of Applied Psychology confirmed that emotional intelligence can be a highly effective gauge for measuring an employee’s suitability. To meet that need, the researchers at the Universities of Geneva and Berne, Switzerland, developed assessments for employers to use during the hiring process to determine a candidate’s levels of sensitivity to and recognition of emotions.

To create these tests, the researchers interviewed over 40 managers of Swiss-based firms to determine the attributes managers thought most important. The tests use video clips featuring actors in work-related situations and pose accompanying questions that ask how candidates would handle anger, sadness, fear, inappropriate happiness and other emotions in the workplace.

Before the assessments were released, they were tested on 800+ participants between the ages of 20 and 60, which confirmed what other research shows, that people scoring high in the ability to regulate their emotions tend to earn a slightly higher salary, that women generally score higher than men, particularly on interpreting nonverbal expressions of emotion, and that “emotional intelligence increases with age and experience, meaning it’s a faculty that can be improved and developed.” Some of the assessments are awaiting further development before being made public, but several are already available online.

 

Best Wishes for the Happiest of Holidays! And a Gift

Posted in Announcements, Books, Emotional Intelligence

Everyone at Law People Management wish you and yours the happiest of holidays! May you travel safe, enjoy the company of family and friends, and experience the profit of a successful career and the peace of a life well-lived.

For a more emotionally intelligent 2019, the ABA is offering a 20% discount off the applicable member price on Beyond Smart: Lawyering with Emotional Intelligence and other ABA titles using discount code ‘OURGIFT18.’ 

ENJOY!

 

 

 

Emotional Intelligence Makes You Run Faster and Play Harder and Win!

Posted in Coaching, Culture, Emotional Intelligence, Management, Mentoring, Productivity, Recruitment, Retention, Risk Management, Teamwork, Uncategorized, Wellness, Work/Life Balance

If there were any question as to whether emotional intelligence positively impacts every endeavor, research has recently verified that even athletes benefit from EI. A study of marathon runners showed that, of 237 runners, those with higher emotional intelligence finish half-marathons faster than their low EI competitors, even after controlling for the effects of physical training and the number of half marathons run in the past.

The researchers found that those who can control their emotions tend to have better times. “My co-authors and I are all interested in how emotions influence human behavior,” said Enrico Rubaltelli, one of the authors of the study. ”The ability to overcome fatigue while running is a fundamental question and we were convinced that it depended greatly on people’s ability to manage their emotions.”

This phenomenon has been played out in coaching as well. In 2016, Jeffrey Lurie, the owner of the Eagles, Philadelphia’s football team, announced that “emotional intelligence” was a trait he was looking for in the next man to fill the Eagles’ head coaching job. People laughed about that phrase, but Doug Pederson fit the bill and went on to coach the Eagles to a 2018 Super Bowl win. Pederson has credited the team’s performance at least in part to his emotional connection to the players:

“I think that having the connection, having been in the locker room, having an understanding of the dynamic of what a team needs, what a team should feel, how we should practice, how we should play, when to take the pads off, when to put the pads back on, I think all of that is part of that emotional intelligence that we all — and I try to strive for and to have with the guys. I think that relationship has gone a long way this season.” 

Even though the Eagles have suffered some tough defeats since that Super Bowl win, Pederson is still viewed as “the ultimate players’ coach.” As one commentator said, “he might not always do the right thing…but Pederson always acts with his heart.”

As a followup to the success Pederson as had, the team has made it clear that they are also looking for emotional intelligence in their draft prospects, as well.

The value of looking for players who display emotional intelligence is validated by research on the emotional intelligence of NHL hockey players. A Canadian study correlated the players’ emotional intelligence with the number of points scored and games played. While length of time since the draft correlated positively with performance, so did “intrapersonal competency”–which encompasses self-awareness, emotional understanding and emotional management skills–and emotional mood. A study of retired NFL players also pointed to emotional intelligence as a significant factor in post-play professional and personal success, health and happiness, concluding: “Athletes with greater emotional intelligence are likely to be more successful in life.”

The same factors that figure in successful sports teams–emotional awareness, understanding and management–are the factors that make individuals, teams and organizations successful in business and law.

 

A Shared Tragedy

Posted in Books, Culture, Emotional Intelligence, Leadership, Management, Retention, Risk Management, Teamwork, Wellness

As we count our Thanksgiving blessings, we should remember the many lawyers (and their friends and families) who are not feeling blessed, but rather tormented by the life they are leading in the law.

As most are aware by now, Gabe MacConaill, a young bankruptcy partner at Sidley Austin, died in October from self-inflicted gunshot wounds in the parking garage of the firm’s Los Angeles office. His wife has written a heart-wrenching tribute to her husband that points a finger not only at herself for not realizing the gravity of Gabe’s distress, but also at the law firm he worked for: “Big Law Killed My Husband.”

His workload, the expectation of perfection and the unrelenting pace in an environment that frowned on seeking help made him a prime candidate for a breakdown, if not suicide, she alleges.

She mentions that he suffered from a “deep, hereditary mental health disorder.”  Many other lawyers have similar conditions and struggle with impairment and suicidal impulses. As reviewed in Beyond Smartresearch makes it clear that lawyers suffer at a disproportionately high rate from mental illness, and it starts in law school, culminating in male lawyers committing suicide at twice the rate of non-lawyer males and huge swaths of both male and female lawyers drowning their misery in drugs and alcohol.

The firm’s public reaction to Gabe’s death has been compassionate, as expected, with apparent recognition of the tragedy of his death and the necessity of raising awareness. But the real question remains whether Sidley Austin– or the many other firms where lawyers are suffering from exhaustion and feelings of failure–are going to truly, systematically deal with a well-documented, industry-wide threat in a smart, compassionate way. Not just by signing pledges or discouraging drinking at firm events, although those kinds of steps are laudable, but by going beyond lip-service and band aids to instituting firm-wide programs based on sound principles of behavioral science that recognize and support those (unfortunately many) brilliant lawyers on their teams of whom so much is asked but who may not feel they can ask for help.

For that, we would all be thankful.

Vote for Law People for Best Legal Blog!

Posted in Announcements

  We are proud to announce that Law People has been nominated from a field of hundreds to compete in The Expert Institute’s Best Legal Blog Contest, one of the largest competitions for legal blog writing online today.

Now it is up to the readers to select the very best of the blogs with an open voting format that allows participants one vote per blog. Each blog will compete for rank within its category, with the three blogs that receive the most votes in any category to be crowned overall winners.

The competition runs from November 5th until the close of voting at 12:00 AM on December 17th.

Vote for Law People by casting your vote through one of the social media platforms here.