The Situationist

Posts Tagged ‘lawyers’

The Risky Situation of In-House Lawyers

Posted by The Situationist Staff on December 19, 2011

Donald Langevoort recently posted his worthwhile paper, “Getting (Too) Comfortable: In-House Lawyers, Enterprise Risk and the Financial Crisis” on SSRN.  Here’s the abstract.

In-house lawyers are under considerable pressure to “get comfortable” with the legality and legitimacy of client goals. This paper explores the psychological forces at work when inside lawyers confront such pressure by reference to the recent financial crisis, looking at problems arising from informational ambiguity, imperceptible change, and motivated inference. It also considers the pathways to power in-house, i.e., what kinds of cognitive styles are best suited to rise in highly competitive organizations such as financial services firms. The paper concludes with a research agenda for better understanding in-house lawyers, including exploration of the extent to which the diffusion of language and norms has reversed direction in recent years: that outside lawyers are taking cognitive and behavioral cues from the insiders, rather than establishing the standards and vocabulary for in-house lawyers.

Download the paper for free here.

Related Situationist posts:

Posted in Abstracts, Behavioral Economics, Law, Morality, Social Psychology | Tagged: , , , , , | Leave a Comment »

The Double-Binded Situation of Even Women Lawyers

Posted by The Situationist Staff on December 18, 2010

From Newsweek:

Of some 700 female lawyers surveyed, more than half of equity partners and two-thirds of income and minority partners say they are dissatisfied with the way compensation was determined at their firms—compared to nearly three-quarters of men who reported high levels of satisfaction with those systems, according to an earlier study. Complaints include a lack of diversity within compensation committees, a lack of wage transparency, and too much weight given to factors such as billable hours and too little to institutional investments like developing a firm’s human capital and nurturing young associates.

Female lawyers also reported being stymied by the “double bind,” saying that for women it’s virtually impossible to be simultaneously respected and well-liked. “You must engage in self-promotion but you’re penalized for doing so if you’re a woman,” says Joan Williams, a professor at UC’s Hastings College of the Law and an author of the report. But Williams says that she was perhaps most surprised by the fact that the survey respondents were so incensed by their experiences at work, which was made clear through comments they submitted online. “The anger comes from the fact that they see these patterns of gender bias, double standards, and double binds in their everyday lives.”

Posted in Law, Video | Tagged: , , , , , | 2 Comments »

The Situation of Lawyers’ Complicity

Posted by The Situationist Staff on November 13, 2009

LawyerCassandra Burke Robertson recently posted her intriguing article, “Judgment, Identity, and Independence” (Connecticut Law Review, 2009) on SSRN.  Here’s the abstract.

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Whenever a new corporate or governmental scandal erupts, onlookers ask “Where were the lawyers?” Why would attorneys not have advised their clients of the risks posed by conduct that, from an outsider’s perspective, appears indefensible? When numerous red flags have gone unheeded, people often conclude that the lawyers’ failure to sound the alarm must be caused by greed, incompetence, or both. A few scholars have suggested that unconscious cognitive bias may better explain such lapses in judgment, but they have not explained why particular situations are more likely than others to encourage such bias. This article seeks to fill that gap. Drawing on research from behavioral and social psychology, it suggests that lawyers’ apparent lapses in judgment may be caused by cognitive biases arising from partisan kinship between lawyer and client. The article uses identity theory to distinguish particular situations in which attorney judgment is likely to be compromised, and it recommends strategies to enhance attorney independence and minimize judgment errors.

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You can download the article for free here.  For a sample of related Situationist posts, see “Gatekeepers Inside Out – Abstract,” “The Situation of Lawyers and Practicing Law,” Law, Chicken Sexing, Torture Memo, and Situation Sense,” The Situation of John Yoo and the Torture Memos,” “Why Do Lawyers Acquiesce In Their Clients’ Misconduct?,” Part I, Part II, and Part III, “The Illusion of Wall Street Reform,” “On the Ethical Obligations of Lawyers: Are We Snakes? Are We Supposed to Be?.”

Posted in Abstracts, Behavioral Economics, Law, Social Psychology | Tagged: , , | 2 Comments »

The Situation of Lawyers and Practicing Law

Posted by The Situationist Staff on June 24, 2008

The Situationist has examined various implications that social psychology and related fields for law and legal theory. But what about for the practice of law? Martin Seligman, former American Psychological Association president and one of the leaders of the new field of Positive Psychology, examines the relationship between psychology and the practice of law in his fascinating book Authentic Happiness. Here are some relevant excerpts.

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Thirty years ago, the cognitive revolution in psychology overthrew both Freud and the behaviorists, at least in academia. Cognitive scientists demonstrated that thinking can be an object of science, that it is measurable, and most importantly that it is not just a reflection of emotion or behavior. Aaron T. Beck, the leading theorist of cognitive therapy, claimed that emotion is always generated by cognition, not the other way around. The thought of danger causes anxiety, the thought of loss causes sadness, and the thought of trespass causes anger.

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These two opposite views have never been reconciled. The imperialistic Freudian view claims that emotion always drives thought, while the imperialistic cognitive view claims that thought always drives emotion. The evidence, however, is that each drives the other at times. So the question for twenty-first century psychology is this: under what conditions does emotion drive thinking, and under what conditions does thinking drive emotion?

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Our economy is rapidly changing from a money economy to a satisfaction economy. These trends go up and down (when jobs are scarcer, personal satisfaction has a somewhat lesser weight; when jobs are abundant, personal satisfaction counts for more), but the trend for decades is decidedly in favor of personal satisfaction. Law is now the most highly paid profession in America, having surpassed medicine during the 1990s. Yet the major New York law firms now spend more on retention than on recruitment, as their young associates—and even the partners—are leaving law in droves for work that makes them happier. The lure of a lifetime of great riches at the end of several years of grueling eighty-hour weeks as a lowly associate has lost much of its power. The newly minted coin of this realm is life satisfaction.I should be studying by katesheets-flickr

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Law is a prestigious and remunerative profession, and law school classrooms are full of fresh candidates. In a recent poll, however, 52 percent of practicing lawyers described themselves as dissatisfied. Certainly, the problem is not financial. As of 1999, associates (junior lawyers vying to become partners) at top firms can earn up to $200,000 per year just starting out, and lawyers long ago surpassed doctors as the highest-paid professionals. In addition to being disenchanted, lawyers are in remarkably poor mental health. They are at much greater risk than the general population for depression. Researchers at Johns Hopkins University found statistically significant elevations of major depressive disorder in only 3 of 104 occupations surveyed. When adjusted for sociodemographics, lawyers topped the list, suffering from depression at a rate 3.6 times higher than employed persons generally. Lawyers also suffer from alcoholism and illegal drug use at rates far higher than nonlawyers. The divorce rate among lawyers, especially women, also appears to be higher than the divorce rate among other professionals. Thus, by any measure, lawyers embody the paradox of money losing its hold: they are the best-paid profession, and yet they are disproportionately unhappy and unhealthy. And lawyers know it; many are retiring early or leaving the profession altogether.

Positive psychology sees three principal causes of the demoralization among lawyers. The first is pessimism, defined not in the colloquial sense (seeing the glass as half empty) but rather as the pessimistic explanatory style . . . . These pessimists tend to attribute the causes of negative events to stable and global factors (“It’s going to last forever, and it’s going to undermine everything”). The pessimist views bad events as pervasive, permanent, and uncontrollable, while the optimist sees them as local, temporary, and changeable. Pessimism is maladaptive in most endeavors: Pessimistic life insurance agents sell less and drop out sooner than optimistic agents. Pessimistic undergraduates get lower grades, relative to their SAT scores and past academic record, than optimistic students. Pessimistic swimmers have more substandard times and bounce back from poor efforts worse than do optimistic swimmers. Pessimistic pitchers and hitters do worse in close games than optimistic pitchers and hitters. Pessimistic NBA teams lose to the point spread more often than do optimistic tams.

Thus, pessimists are losers on many fronts. But there is one glaring exception: pessimists do better at law. We tested the entire entering class of the Virginia Law School in 1990. . . . These students were then followed throughout the three years of law school. In sharp contrast to results of prior studies in other realms of life, the pessimistic law students on average fared better than their optimistic peers. Specifically, the pessimists outperformed more optimistic students on the traditional measures of achievement, such as grade point averages and law journal success.

Pessimism is seen as a plus among lawyers, because seeing troubles as pervasive and permanent is a component of what the law profession deems prudence. A prudent perspective enables a good lawyer to see every conceivable snare and catastrophe that might occur in any transaction. The ability to anticipate the whole range of problems and betrayals that nonlawyers are blind to is highly adaptive for the practicing lawyer who can, by so doing, help his clients defend against these far-fetched eventualities. And if you don’t have this prudence to begin with, law school will seek to teach it to you. Unfortunately, though, a trait that makes you good at your profession does not always make you a happy human being.

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Lawyers by Wrote - FlickrA second psychological factor that demoralizes lawyers, particularly junior ones, is low decision latitude in high-stress situations. Decision latitude refers to the number of choices one has—or, as it turns out, the choices one believes one has—on the job. An important study of the relationship of job conditions with depression and coronary disease measures both job demands and decision latitude. There is one combination particularly inimical to health and morale: high job demands coupled with low decision latitude. Individuals with these jobs have much more coronary disease and depression than individuals in the other three quadrants.

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The deepest of all the psychological factors making lawyers unhappy is that American law has become increasingly a win-loss game. Barry Schwartz distinguishes practices that have their own internal “goods” as a goal for free-market enterprises focused on profits. Amateur athletics, for instance, is a practice that has virtuosity as its good. Teaching is a practice that has learning as its good. Medicine is a practice that has healing as its good. Friendship is a practice that has intimacy as its good. When these practices brush up against the free market, their internal goods become subordinated to the bottom line. Night baseball sells more tickets, even though you cannot really see the ball at night. Teaching gives way to the academic star system, medicine to managed care, and friendship to what-have-you-done-for-me-lately. American law has similarly migrated from being a practice in which good counsel about justice and fairness was the primary good to being a big business in which billable hours, take-no-prisoners victories, and the bottom line are now the principal ends.

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Lawyers are trained to be aggressive, judgmental, intellectual, analytical and emotionally detached. This produces predictable emotional consequences for the legal practitioner: he or she will be depressed, anxious, and angry a lot of the time.

Posted in Book, Emotions, Law, Life, Positive Psychology, Situationist Sports | Tagged: , , , , , , , , , , , , | 2 Comments »

The Situation of John Yoo and the Torture Memos

Posted by The Situationist Staff on May 13, 2008

Situationist friend Andrew Perlman recently published a terrific editorial in The National Law Journal on the situation of John Yoo, “The ‘Torture Memos’: Lessons for all of us.” Here are a few excerpts.

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John Yoo - from WikipediaIt is easy to believe that John Yoo wrote his widely discredited “torture memos” because he holds radical views of presidential authority or because he has some unusual moral failing. The reality, however, may be far more ordinary and disturbing: He willfully followed the lead of White House officials who were eager to find a legal justification for torture. The banality of Yoo’s compliance shouldn’t excuse him in any way, but his mistakes can help us understand why attorneys might offer equally troubling legal advice in much less public settings.

We can draw some valuable insights in this regard from one of the most stunning social psychology experiments ever conducted. More than 40 years ago, Stanley Milgram found that, under the right conditions, an experimenter could successfully order more than 60% of adults to administer what they believed to be painful and dangerous electric shocks to an innocent, bound older man with a heart condition, despite the man’s repeated pleas to be let go. In essence, Milgram found that people are surprisingly likely to obey authority figures under certain conditions.

Social psychologists have identified many of the conditions that tend to promote this type of wrongful obedience . . . . [For a related list, see Zimbardo’s Situationist post here.]

Notably, the conditions that produced obedience in Milgram’s experiments probably also existed at the Office of Legal Counsel (OLC) when Yoo wrote his infamous memos.

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Of course, none of this justifies Yoo’s conduct or excuses him in any way. Indeed, Jack Goldsmith, the subsequent head of the OLC, rescinded some of Yoo’s memos and successfully resisted the same pressures that Yoo faced. Nevertheless, by trying to understand why Yoo would have offered fundamentally wrong legal advice, we can gain insights into why other lawyers in more commonplace professional settings might offer similarly bad advice to powerful figures, whether they are White House officials, important law firm partners or corporate executives. Our obedience might take the form of following a client’s request to bury a discoverable “smoking gun” document or offering evidence that we know is false, but the forces at work are ultimately the same

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To read all of Professor Perlman’s article, click here. In addition, we recommend his forthcoming law review article, “Unethical Obedience by Subordinate Attorneys: Lessons from Social Psychology” (forthcoming 36 Hofstra Law Review, 2007, available on SSRN), the abstract of which we have pasted below.

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This Article explores the lessons that we can learn from social psychology regarding a lawyer’s willingness to comply with authority figures, such as senior partners or deep-pocketed clients, when they make unlawful or unethical demands. The Article reviews some of the basic literature in social psychology regarding conformity and obedience, much of which emphasizes the importance of context as a primary factor in predicting people’s behavior. The Article then contends that lawyers frequently find themselves in the kinds of contexts that produce high levels of conformity and obedience and low levels of resistance to illegal or unethical instructions. The result is that subordinate lawyers will find it difficult to resist a superior’s commands in circumstances that should produce forceful dissent. Finally, the Article proposes several changes to existing law in light of these insights, including giving lawyers the benefit of whistleblower protection, strengthening a lawyer’s duty to report the misconduct of other lawyers, and enhancing a subordinate lawyer’s responsibilities upon receiving arguably unethical instructions from a superiors.

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To watch a fascinating 4-minute interview by Bill Moyers of Jack Goldsmith about the situation of the DOJ decision making, click on the video below.

To view a 45-minute video in which Jack Goldsmith discusses the surprising role of lawyers in the war on terror, click on the following video.

For a sample of related posts, see the series by Situationist contributor Sung Hui Kim, “Why Do Lawyers Acquiesce In Their Clients’ Misconduct?, Part I, Part II, and Part III, and the post by Situationist contributor David Yosifon, “On the Ethical Obligations of Lawyers.”

Finally, to listen to a fascinating set of This American Life stories of “the Bush Administration, its unique style of asserting presidential authority, and its quest to redefine the limits of presidential power” generally, click here.

Posted in Abstracts, History, Law, Morality, Politics, Social Psychology, Uncategorized, Video | Tagged: , , , , , , , , , | 1 Comment »

 
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