Beyond Smart: Lawyering with Emotional Intelligence is now available as an eBook and at a significant discount from the paperback price. Take it along on the plane or vacation. For a discount, use Code RMUIR10.
The implications of the Harvey Weinstein scandal justifiably shake workplaces across the country. Women in nearly all industries can cry “Me Too.”
So what about law? Legal workplaces have long been one big high-intensity, smart person’s social mixer with the attendant fallout, and there is no shortage in our profession of Me Too tales. The clear ranking of power that fuels some of the boldest misbehavior and makes reporting it such a risk also makes the outcome of the lawsuit fairly obvious–a partner who uses work favors to gain sexual favors from a first year associate cannot claim valid consent.
A few law firms have had–some for a couple of decades now–guidelines that have tried to more or less address the issue. One big Wall Street firm at least 20 years ago hoped to make the stakes of an intra-office liaison unattractive by saying that if such a situation developed, the higher-positioned person (senior associate, partner) of the pair would be the one to leave. That may help quell longer-term relationships, but the grab-and-pinchers, exposers and dirty talkers aren’t necessarily in the market for the long term.
The pervasiveness of such behavior is clear, as evidenced in this single state’s investigation:
“According to a report conducted by the Women Lawyers of Utah in 2010, 37 % of women in firms said that they experienced verbal or physical behavior that created an unpleasant or offensive work environment, with 27% of those women feeling the situation was serious enough that they felt they were being harassed. And a whopping 86% felt that the basis for the harassment was their sex. The numbers for males were much lower, with only 22% reporting an unpleasant work environment and only 4% feeling it rose to levels of harassment.”
Just through the narrow scope of our clientele, we have seen law firms and law departments where this kind of behavior persists and where even mega-deals with accusers were made in order to make the issue go away (reference that big Wall Street firm, which then adopted the rule). These are the lawyers who know quite precisely the cost, in terms of money, “man hours” and reputation, that a Weinstein-like scandal entails.
In Beyond Smart: Lawyering with Emotional Intelligence, Muir suggests that these harassment-prone workplaces are sitting on a time bomb. First, there is the recent (last year, at last) passage of the amended Rule 8.4 of the ABA’s Model Rules of Professional Conduct, which picks up some of the 25 or so states’s provisions who have similar language. It was proposed, according to its sponsors, because such harassment and discrimination “undermines confidence in the legal profession and our legal system,” as if we weren’t at rock bottom already. Rule 8.4 prohibits behaving in ways “the attorney knows or should reasonably know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” And Rule 8.3 requires that those who observe another lawyer’s misconduct have an obligation to “inform the appropriate professional authority.”
Clearly intended to have wide application in the legal profession, including in the operation and management of law practices, the new Rule has the power to significantly broaden the legal profession’s exposure to liability of all kinds, but certainly with respect to sexual harassment and discrimination, since many legal cultures are conducive to harassment and suffer from chronic under-representation and under-promotion of women and minorities.
The second blade hanging over the profession’s head is the arrival of Millennials into our sacred halls. Whether you consider them snowflakes or ethical progressives, they have been marinated in the sea of micro-sensitivity, which will no doubt result in complaints of micro-aggressions that lawyers didn’t know they had. This new Rule, coupled with the Millennials’ expectation of a bully-free, sexual-harassment-free workplace, could well spell either real change in legal cultures or real liability that could even threaten survival.
One of the speakers at a Millennial conference I attended recently used the term “Chinese fire-drill” to describe, well, you know, last minute, intense actions. He was lambasted in several of the reviews I read for not being PC–what an insult to the Chinese in the audience. Similar comments were made about his reference to “having a senior moment.”
How many of your partners might be guilty of such a micro-aggression?
This is not just a caution for the men in our ranks. Ten years ago a partner at a major Wall Street firm was complaining that his son–a third year associate at another major Wall Street firm–was having an affair with his supervising partner (a woman) that he thought totally inappropriate. He was convinced she had lured his son into the affair by using work assignments and promotions and was frustrated at his inability to report her or get out of the arrangement. How typical, one thinks. It’s just usually the other way around.
Putting pressure on law cultures to actively oppose insensitivity to others may seem like a fool’s errand given the competitiveness and aggressiveness long inculcated, even rewarded, in those workplaces.
So it would be no surprise if tensions in legal workplaces become even more strident and eventually litigious as more and more incoming Millennials find themselves in cultures that harbor or ignore behaviors they consider unfair or offensive and look for redress.
What is it that makes us vulnerable to the mounting filing of sexual harassment suits? Low emotional intelligence plays a part. A failure to read emotional cues that clearly spell disinterest can lead those accused down what may seem to them an acceptable path. Low emotional empathy keeps them from appreciating the distress they are causing. And understanding emotions, which lawyers theoretically do better, is hampered by having the incorrect emotional data to start out with. Finally, deficits in managing emotions can prompt behavior that make the original sin even worse.
But make no mistake. Whatever the source of the behaviors, they can end up exacting financial and reputational costs that can be devastating to both individuals and organizations and will specifically adversely impact a firm’s or department’s desirability as a workplace and service provider among Millennial lawyers and clients.
There hasn’t been much said of the lawyers on both sides who crafted Weinstein’s employment agreement. The Boies firm evidently negotiated Weinstein’s 2015 contract, which states that he doesn’t violate his contract if he gets sued for any type of misconduct — including sexual harassment — as long as Weinstein pays off the accuser (even though he was known to have already had several such suits), and, after a number of those accusations, eventually pays a fine to the company. Then we’re all good. It’s all a matter of money.
The director/lawyer who negotiated on the company’s side says that, even though Weinstein wouldn’t let the board see his personnel file, they all assumed past payoffs had been for consensual relationships. Let’s hope they have good D&O insurance.
Clearly Boies knew details of Weinstein’s past behavior. Boies has admitted that he hired private detectives who targeted New York Times‘ reporters, evidently in an effort to undermine news coverage of the accusers’ claims. At the same time, Boies’ firm was representing the Times in various legal matters. Apart from the concerns raised about conflict of interest, what was Boies’ ethical obligation with respect to soliciting the suppression of what appeared to be a crime?
Then there are the lawyers who typically put non-disclosure provisions with respect to discrimination or harassment in upfront employment offers (as Ellen Pao had) or as part of the settlement, as Weinstein and other predators have procured. Aren’t we lawyers professionally obligated to advocate for our predatory clients by holding our noses and insisting on these provisions? Or are we being complicit in covering up what may well be criminal behavior?
Perhaps the way out of that dilemma is to make these provisions unenforceable as against public policy, as non-competes have become in many jurisdictions. Two New York State lawmakers recently introduced legislation to void any contract that includes a provision to silence workers about harassment or discrimination.
Let’s hope other states also address the situation.
And that legal organizations do some introspection on their own potential liability.
In the October 2017 Your ABA e-New for Members, Muir answers questions as to how emotional intelligence makes for a better and more profitable lawyer.
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 .
Muir’s article published this month in Law Practice Today, entitled “The Key to More Profitable Practices in the 21st Century,” reviews some of the important reasons that raising emotional intelligence can improve the productivity and profitability of our legal workplaces.
In Sydney, Australia at the IBA annual conference earlier this month, Muir participated on a great panel with an energized audience on the topic of successfully making changes in our careers. Here are two of the recent articles in Lawyers Weekly: “How to Fail Well” and “The Pursuit of Happiness in the Law.”
One of the takeaways was how emotional the entire process of contemplating and transitioning through any kind of change can be, citing William Bridges’ map of the emotions around change:
Note the drop in productivity with the emotional states that exist around the contemplation of an ending, and that productivity only starts to rise again–hopefully to new heights–as the new circumstance becomes understood, accepted and fully engaged in.
These emotions that can run rampant in the workplace make the role of the emotionally intelligent leader–who understands and can manage such an emotional event– even more important during times of change.
YourABA published a Q&A with author Ronda Muir today about her new book, Beyond Smart: Lawyering with Emotional Intelligence. Check it out HERE.
Muir will be speaking on a panel led by Robert Bata at the 2017 International Bar Association Annual Conference in Sydney, Australia on Monday, October 9th on the subject of “Re-Inventing Yourself: Recognizing Decision Points in Your Career.” Join us!
I am pleased to announce that (along with the eclipse) Beyond Smart: Lawyering with Emotional Intelligence is available as of yesterday here on the ABA Shop website. For a discount, use Code RMUIR10 through December 31, 2017.
This is the first comprehensive guide to understanding, using and raising emotional intelligence in the unique context of law practice. It covers a myriad of topics, including:
- What emotional intelligence means, its research origins that feature a lawyer, and its four components
- The demographics of EI
- How lawyers compare to doctors and other professionals in emotional intelligence
- Why emotionally intelligent lawyers are smarter, better practitioners (as negotiators, litigators and judges), make more money, and are physically and mentally healthier
- The critical importance of emotionally intelligent communication in client service
- How emotionally intelligent law departments and law firms profit from high EI leadership, greater performance, enhanced teamwork, and increased client satisfaction, as well as lower attrition, healthcare and professional liability costs
- Why emotionally intelligent practices can thrive in an increasingly competitive and technologically challenging marketplace, even outperforming artificial intelligence
- Law firms that have dared to lead in promoting emotional intelligence
- How to find out your personal level of emotional intelligence
- Four steps individuals can take to raise their emotional intelligence, including practical tips to raise each of the four components of emotional intelligence
- Four steps that workplaces can take to raise organizational emotional intelligence
- Why law schools interested in producing the best and brightest should include emotional intelligence in admissions and curricula
Let’s hope that the new beginning that this historical eclipse heralds also occurs in our legal workplaces in need of strategies for meeting the challenges of the 21st Century.
Order your copy here.
My thanks to reviewers from all sectors of the legal world who have endorsed the book:
“Emotional intelligence is one of the most important, yet overlooked, areas of law practice…. Ronda Muir has written what is instantly the standard in the field. It is a gift for lawyers and legal educators alike.” Daniel S. Bowling, III, Senior Lecturing Fellow, Duke Law School, Recipient, 2016 Outstanding Professor
“Every managing partner needs to read this book…. The good news is that there are things that can be done to improve emotional intelligence.” Sir Anthony Salz, former Chair, Freshfields Bruckhaus Deringer
“A must read for in-house counsel striving to navigate internal management emotions while enhancing the probability of successful external interactions.” Steven Overly, senior legal leader over a 30-year career at Lockheed Martin, General Electric, NUI, Cirrus Logic and other companies
“In the face of challenges to law firms by alternative service providers, new business models, smart software, and Artificial Intelligence, the proven power of Emotional Intelligence is needed to assure success, indeed to assure survival. EI is not a frill, it is a core competence.” Michael Mills, Co-Founder, President of Neonta Logic, Inc., formerly a partner at Mayer Brown
“Muir provides the scientific background for what many of us have long suspected about what makes for a successful lawyer or judge, and couples this science with practical advice to address problems all lawyers face.” Christopher L. Kaufman, Senior M&A Partner, Latham & Watkins, LLP
“Ronda Muir displays her mastery of emotional intelligence in this enlightening and comprehensive book…. Thoroughly researched and thoughtfully organized.” Randall Kiser, Principal Analyst, DecisionSet, author of several books including forthcoming Soft Skills for the Effective Lawyer
“Muir gives us compelling examples of lawyers who have gained from high EI and those who have suffered from its absence…. Attorneys appear to underrate EI as a critical skill. Muir challenges us to think more deeply about EI and how it can help us to become more accomplished lawyers and have more satisfying personal lives.” David Katsky, Founding partner, Litigation Department Leader, Katsky Korins
Linda Kohanov is one of the pioneers in the area of building emotional intelligence skills through human/equine interaction. Based on the theories she discusses in her numerous bestsellers, her organization Eponaquest offers programs in Arizona to artists, educators, and business leaders that “employ horses in teaching people leadership, assertiveness, personal empowerment, relationship, intuition, and emotional fitness skills.”
I had the pleasure of spending a day on the Texas ranch of one of her certified instructors and effective apostles, lawyer Francie Kilborne. Kilborne last year left her position as Associate General Counsel with Energy Transfer Partners. While she continues to service clients and chair the Corporate Counsel Section of the Dallas Bar Association, she has founded Solace at her ranch outside Dallas, Texas to provide her lawyer colleagues and others with equine-facilitated emotional intelligence development workshops. Some of her initial clients have been referred by a treatment center for substance abuse, a condition that many lawyers struggle with.
What exactly does equine-facilitated emotional intelligence development look like? After discussing some of the principles of emotional intelligence, our group lined up in our boots, sunscreen and hats for the morning session with the horses. Each of us took a turn at entering a ring to approach our first horse. The challenge was to assess the horse’s demeanor and quickly adjust our behavior to the horse’s “personality,” such as its extroversion or introversion, based on the horse’s cues.
The second exercise in the afternoon was to guide the horse in a small ring to a walk, trot, walk, turn in direction and trot again using primarily our voice and body language. It drew on our confidence and ability to project authority and enlist cooperation without physical coercion.
These interactions fine tune our ability to read emotion (fear, anger, anxiety, ease) in movement and expression and to then conform our behavior so as to promote collaboration and teamwork. They also exercise our confidence and commitment to a course of action, and teach us how to read and “work around” the usually unanticipated idiosyncrasies that commonly occur.
Dogs are another animal resource for learning how to better read and react to expressed emotional cues that are not verbal. Dogs are usually masters at reading yours–that is the skill that makes people consider them to be “smart.”
For further exploration of how lawyers can learn to be smarter than just their IQ, our forthcoming book (newly-retitled) Beyond Smart: Emotional Intelligence for Lawyers is coming out in time for the ABA annual convention in August and is filled with resources.