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

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

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

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

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

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

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

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

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

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

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

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

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

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

So what’s to be done?

Here’s Maister’s still-valid advice:

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

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

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

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

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

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

 

In a first study of its kind, researchers analyzing nearly 5,000 job descriptions placed between 2000 and 2017 in help-wanted ads for CEOs, as well as the other big C’s, found a 27% increase in social skills requirements, while the emphasis on hard skills, like financial management, declined by 38%. The most wanted soft skills included a high level of self-awareness, the ability to listen and communicate, and empathy–“the capacity to infer how others are thinking and feeling,” the authors write. “At all employment levels today, more and more jobs require highly developed social skills. Harvard’s David Deming, among others, has demonstrated that such jobs have grown at a faster rate than the labor market as a whole—and that compensation for them is growing faster than average.”

While more recent data isn’t yet available, there is evidence that the pandemic has made it even more crucial that leaders are good, empathetic communicators. Yet many companies haven’t figured out how to screen candidates for these skills, says Raffaella Sadun, a professor at Harvard Business School who co-authored the paper.

Empathy, communications skills and self-awareness should be core strengths for lawyers. But law firms are among those most in need of improving firm overall emotional intelligence, both for purposes of serving clients well and also in order to support healthy and productive partners, associates and staff.

Although well-established assessments have demonstrated that they can help employers understand and place at least lower-level newcomers in a firm’s community, they are often not used, even after hiring. But there are steps firms can take short of assessments that can be valuable. Having a psychologically-oriented expert on staff, often in charge of talent management, who is respected for their perspective is a good start. Behavioral interviewing can reveal a lot about a person’s soft skills. Making sure several interviewers with different styles interface with the candidate also helps a firm understand that person’s strengths and weaknesses. And a preliminary work period before a candidate’s employment becomes permanent can clarify the best role for an individual.

What does your firm do to insure that its incoming and upcoming leadership has the soft skills necessary to cope with our challenging legal landscape?

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.

Looks 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.