Now that we’ve made it past Halloween with its tricks and treats, let’s turn to some everyday scariness. Nearly half of the respondents (45% of 800) to the October monthly survey of the National Judicial College (NJC) alumni indicated they have suffered from secondary traumatic stress (STS), defined as “the emotional duress of hearing about the firsthand trauma experience of another.”
More than 150 judges were moved to make comments about their unsettling memories (photos of the autopsy of a child drowned for insurance money) and disabling symptoms (such high blood pressure that they were rushed to the hospital). There are indications that many of these judges are in criminal courts or adjudicate personal injury claims.
The report suggests that the portion of judges who are traumatized could be higher than the survey reported because of their being either unable to recognize or unwilling to admit the emotional distress. Some comments reflect that suspicion: “One said judges need to toughen up. Another said judges are in the wrong profession if they experience STS. Others said secondary traumatic stress is a product of society’s ‘victim mentality.’”
According to the report, the symptoms of STS are similar to PTSD, including: “hopelessness; survival coping; anger and cynicism; sleeplessness or chronic exhaustion; physical ailments and illness; guilt; avoidance; and diminished self-care.” A resource published by the National Center for State Courts says these symptoms affect a judges’ personal well-being and also the validity of the decision-making process, with the fallout infecting the entire courtroom.
Working under intense public scrutiny, for high stakes and in relative isolation, even fearing for their safety, among other things, judges are challenged to make good decisions and also maintain their emotional equanimity. The rising incidence of depression and suicide among judges, reflecting a similar trend among lawyers generally, testifies to the emotional strain inherent in their position.
Other professionals working with those who are suffering, such as therapists, EMTs, caregivers and other human services workers, have reported similar reactions to the bombardment of graphic images and tales. But rarely do we talk about this impact on our legal professionals. Together with judges reporting being so effected, there’s good reason to believe that the lawyers, stenographers and other court personnel subjected to repeated accounts of trauma may also be suffering from STS, sometimes called “vicarious victimization.”
In addition, research suggests that party litigants often suffer from “secondary victimization” simply by going through the legal process–those who go through legal proceedings to get compensation for personal injuries, for example, have a worse physical and psychological recovery than those who do not, or as the researchers put it: “[o]ne predictor for worse recovery is lawyer engagement.” Another recently coined condition called “legal abuse syndrome” refers to clients suffering additional emotional harm at the hands of their own lawyers who fail to take into account their clients’ emotional needs. Clients have specified that feeling involved in decision-making, good communication and empathy for their plight are what they most need to avoid feeling reinjured.
In Beyond Smart: Lawyering with Emotional Intelligence, Muir devotes a section to the emotional toll that being a judge entails, both professionally and personally. Developing the four primary aspects of emotional intelligence addressed in the book–emotional awareness, emotional empathy, emotional understanding and emotional regulation– can each make a contribution to improving judges’ (and other participants’) decision making and health.
Anger is the most common reported emotion experienced by judges. While there are some positives to being angry–anger also poses some dangers to a judge’s ability to make sound judgments and, unrelieved, can fester into serious emotional distress and physical breakdown. In making judgments, angry people tend to revert to stereotypes. Angry people also tend to be more receptive to angry arguments, as well as to arguments that confirm their initial assessment of a situation. So they may reach a decision prematurely, or make an overly punitive decision.
In mock-jury studies, researchers found that “experimentally induced, irrelevant anger” was correlated with “more punitive judgments of tort defendants, as well as with greater levels of punishment.” Similarly, teachers in a positive mood gave the same paper 1-2 grades higher than they did when they were in a negative mood. Perhaps most striking was that 85% of the teachers said that their mood had no impact on their judgment, a colossally high lack of awareness.
Whatever the cause, a judge’s emotional distress can even cost a litigant his/her case.
Supreme Court Justice Sonia Sotomayor testifies to the importance of emotional awareness and regulation for judges: “You can’t be emotionless. No one can…You can’t be a judge if you try to be a robot. Because then you’re not going to be able to look at both sides, and hear both sides. At the same time, if you’re being ruled by emotion, then you’re not being fair and impartial. So what do you do with your emotions? My feeling is that you have to be aware. You have to be aware that you might be angry with a defendant and then acknowledge and deal with that anger as a person—and consciously set it aside.”
Is it more empathy that our judges and lawyers also need? There have certainly been calls for more empathic judges: “only empathic judges would realize the long term consequences of their decisions and thereby give them the degree of thought appropriately required…[W]hen people lack empathy, they are incapable of seeing perspectives other than their own.”
Perhaps this is the reason that Roman Krznaric, a popular British philosopher and author of Empathy: Why It Matters, and How To Get It, runs empathy training for Britain’s top judges.
However, emotional empathy without the other components of emotional intelligence can be dangerous. STS is sometimes called “compassion fatigue,” which caregivers often suffer because of their overwhelming feelings for their charges. It is more likely prompted by a surfeit, not a deficit, of emotional empathy, but in any event without the balance of emotional regulation to manage those emotions. Using emotional regulation to move at will from one emotion to another, called “emotional agility,” can get us out of an emotional ditch, whether negative or positive, and thereby “alleviate stress, reduce errors, become more innovative, and improve job performance.” By raising their emotional awareness and emotional regulation skills, judges can recognize their emotional states, discard those that are not appropriate to the situation and then move out of negative emotions that harm their decision making and their health.
In the NSC report, some judges made suggestions for avoiding STS, including focusing on the facts and legal issues, even grammar, instead of the gruesome details, and coping through the use of exercise and mindfulness. What is not a good strategy is to blindly suppress those emotions, whatever they are, which requires “emotional labor” and takes an additional toll on performance and health.
So it looks like courtrooms are in effect theaters of war with its attendant emotional damage. We need to be armed with the best tools from emotional intelligence to make the process as just and healthy as possible for all involved.