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.
* * *
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.
* * *
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?
* * *
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.
* * *
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.
* * *
A 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.
* * *
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.
* * *
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.