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EXPOSING IMPLICIT RACIAL BIAS DURING JURY SELECTION…HOW?

 

IMPLICIT BIAS

Attorneys, judges and jurors all want to see themselves as fair, equitable, and rational, yet studies show that despite our best intentions none of us are free from bias. Implicit bias refers to unconsciously held biases that do not necessarily reflect our conscious beliefs.

Because implicit bias is subconscious, even people who consciously abhor discrimination can unconsciously be influenced by implicit bias. Studies show that implicit bias can affect how judges make decisions, how attorneys decide who to leave on juries and how jurors decide what testimony to believe or disregard.

The impact of implicit bias on decision making has been shown in numerous studies. For example:

  • Researchers sent identical resumes to employers and found a 50% drop in interview callback rates for the applicants when they changed the names on the resumes from Emily and Greg (signaling European ancestry) to Lakisha and Jamal (signaling African ancestry).
  • Study participants shown photos of black and white American men with neutral facial expressions perceived the black face to be more hostile than the white face, and the participant’s implicit bias as measured by the IAT correlated to the degree of hostility the participant perceived.
  • Partners reviewing the identical third-year associate memorandum rated the memorandum higher and found fewer errors when the associate was identified as white than black.

The important takeaway is not that implicit bias is bad or that people who have bias are bad people. We all have bias. Part of our job as trial attorneys and judges is to recognize and address racial justice issues whenever and wherever they arise.

For example, within the context of a jury trial, it is critically important to recognize the role that implicit racial bias may play within the minds of otherwise well intentioned jurors. But how do you uncover from someone a subconscious (implied) bias that the person’s conscious mind does not recognize or even realize exists. As Justice Sotamayor wrote: “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race….”

The following are suggestions on how to introduce the issue of implicit racial bias to prospective jurors along with 15 carefully crafted voir dire questions.

IF RACE IS OR MAY BE AN ISSUE IN YOUR TRIAL CONSIDER THE FOLLOWING: 

During voir dire you have the right to question jurors concerning their beliefs and attitudes on race and racial bias. Start with introducing the issue of racial bias to the jurors and then try to get them to talk about it. Make sure to link questions about race to your case. The following statement to the jury panel and sample voir dire questions are a good starting point.

NOTE: Some attorneys may prefer to have the judge address the issue of racial bias with the jury panel by asking all or some of the following race related questions. All voir dire issues (including the racial bias statement below) should be discussed with the judge during your pretrial conference prior to commencement of trial.

INTRODUCING THE ISSUE OF RACIAL BIAS TO THE JURY PANEL: Ladies and gentlemen, despite the many differences in our lives and backgrounds, we all want to see ourselves as fair, equitable, and rational human beings, yet studies show that despite our best intentions none of us are free from bias. Implicit racial bias refers to unconsciously held biases that do not necessarily reflect our conscious beliefs. Because implicit bias is subconscious, even people who consciously abhor discrimination can unconsciously be influenced by implicit bias. Implicit bias is developed over the course of a lifetime through exposure to direct and indirect messages. Studies show that implicit bias can affect how we all make important decisions in our lives. Please keep that in mind as you answer the following questions

(Note: the following questions can also be found in the voir dire section of the Criminal Jury Trial Judges Manual):

  1. Please tell us the type of contacts you have had with Blacks/Asians/Native Americans/Hispanics
  2. Do you work with any Blacks/ Natives Americans/ Asians?
    1. Describe work setting i.e. large factory small office
    2. If so, do you socialize with them at work? Coffee breaks, lunch?
    3. Socialize with them outside of work? If so, types of activities?
    4. Have they been in your home? Have you been in their home?
  3. Do you have kids? Are they in school?
  4. Are your kid’s friends with any Blacks/Native Americans/ Asians in school?
  5. Have your kids’ minority friends ever been in your house?
  6. Have your kids ever been in their minority friend’s home?
  7. Do Blacks/ Native Americans/ Asians live in your neighborhood?
  8. Do you have any contact with them?
    1. Describe?
    2. Ever been in their house? They ever been in your house?
    3. Do your kids have any contact with them? Do their kids have any contact with you?
    4. Are you friends with them?
    5. Are their kids & your kids friends?
  9. Any Blacks/ Native Americans/ Asians in your church?
    1. If so, describe types of contacts you have with them?
  10. When you were growing up were there any Blacks/ Native Americans/ Asians in your neighborhood?
    1. What kind of relationship did you have with them?
    2. Describe activities you would do with them?
    3. They ever in your home? You ever in their home?
  11. Ever date Black/ Native American/ Asian?
    1. If yes, how did your parents feel about that?
  12. Have your children ever dated Black/ Native American/ Asian?
    1. If yes, how did you feel about that?
    2. If no, how would you feel about your child dating a Black/ Native American/ Asian?
  13. Have you or anyone close to you ever been the victim of a crime?
    1. Do you know the race/ethnicity of the person who committed that crime?
    2. If yes, is there anything about the race of the person who committed that crime that would make it difficult for you to be a juror in this case?
  14. Race can have no part in your deliberation and decision on the guilt or innocence of the Defendant. Do you understand and agree with that?
  15. Is there anything about the race of the Defendant in this case that would make it difficult for you to be a juror in this case?

JURY TRIAL REFERENCE TOOLS: For a “Complete Step-By-Step Guide from the Beginning of Trial through the Return of Verdict” go to the Criminal Jury Trial Judges Manual. If during voir dire the state or defense makes a peremptory strike on the basis of race or gender, every trial attorney (and judge) MUST be familiar with the 3 step BATSON challenge process. See Judicial Training Update “Jury Selection ‘Batson’ Challenge”. To access all past judicial training updates and the Judicial Resource Library, go to the Minnesota Judicial Training & Education Blog.   

IMPLICIT BIAS TEST: The most widely recognized test of implicit bias is the Implicit Association Test (IAT) conducted by Project Implicit a research website operated by Harvard University, Washington University, and the University of Virginia.

September 24, 2017

Alan F. Pendleton (Former District Court Judge)

afpendleton@gmail.com

763-498-1508

TEN TIPS THAT EVERY NEW ATTORNEY SHOULD KNOW

lessons_in_law

PERSONAL UPDATE: I woke up this morning realizing that it had been 6 months since my last post. One of the drawbacks to the aging process is that time seems to pass so much faster than when we were younger. I am now a legal resident of North Scottsdale, Arizona but we will continue to spend summers and fall in Minnesota. We just completed construction on a new home way out in Minnestrista (for those of you geographically challenged) Minnestrista is a picturesque small town located on the western edge of lake Minnetonka. Now that the dust has started to settle I will hopefully get back to posting on a more regular basis. If you need to reach me I have a new email: afpendleton@gmail.com.  As for this week’s post:

Whether you work in a private law firm, city or county Attorneys office, public defenders office, or as a judicial law clerk, someone at your place of employment has responsibility for hiring and firing new attorneys.

Over my 36 year legal career I have worked in all of the above settings (except not as a public defender). I can tell you from personal experience that when management attorneys meet to discuss business, the subject often turns to common mistakes made by new attorneys. This is a topic I wish law schools would spend more time covering with their recent graduates. 

The following is a list of ten typical mistakes to avoid when you’re trying to get your legal career off to a great start.

MENTORING SUGGESTION: If you are an older more experienced attorney I encourage you to share this post with any new attorneys in your firm or office.

  1. Know your place. If you’re the newest lawyer in your firm/office, others with more seniority and experience expect a certain level of respect. Being arrogant, self-righteous, or correcting senior counsel publicly will make your opinions less favored than using a respectful and thoughtful approach. You’re expected, at least initially, to prove that you can work harder and longer hours to prove yourself. Complaining about the work load, taking long lunches, and expecting to have a hand in deciding what cases you’ll work on will appear overreaching and unappreciative. Perks will come with time and experience.
  2. Don’t be afraid to ask for input. Few new attorneys ever ask for input or ask how their work can be improved. This is probably because they don’t really want to receive feedback on these issues for fear of being criticized. However, it shows initiative and maturity to ask how you can improve. Also, if you want advice on how to approach a legal task, it’s often helpful to approach your supervisor early with a plan as to how you will attack the legal problem. It’s better to find out if you’re on the right or wrong track early than to waste time doing something the wrong way. The fact that you’re trying to improve is impressive in itself.
  3. Write a handwritten note. Hardly anyone thinks to write a thoughtful, handwritten note to show appreciation for a kind gesture. Before texts and emails, we actually owned pens and stationery! A nicely written note will earn you major points with both supervisors and clients. Electronic communications can seem impersonal and may get buried in the email morass of the recipient’s inbox. (this is my personal favorite!)
  4. Listen more than you talk. When you’re a new lawyer, there’s a tendency to talk too much and listen too little because you’re trying to impress clients and/or colleagues. However, a good lawyer listens to the client and their issues, concerns, and problems and then asks appropriate follow-up questions before offering legal advice. Learn to be a good listener early on in your career and your clients will appreciate you for it. When dealing with more experienced attorneys in your firm/office your rule of thumb should be “ask them questions, listen, learn from them and then thank them.”  Developing your active listening skills will also help you with negotiations (civil or criminal).
  5. Have empathy. Clients (and victims for prosecutors) are often frightened by being involved in the legal process and may feel very violated. They’re coming to you for legal advice, but showing compassion, being a good listener, and treating them with respect can earn you a client for life .  Many people don’t think that lawyers care about the outcome of the legal issue—do what you can to change this perception of lawyers and you’ll help the profession, and yourself, in the process.
  6. Learn to proofread. Read and reread everything you draft. And always even though you draft it electronically, print your legal work and review it thoroughly before signing it. Doing this helps you catch formatting errors, written mistakes, and less than stellar analysis. Keep it formal; too many young lawyers inappropriately use a casual, unprofessional tone (i.e., “the defendant acted like a Mafia Don”) and colloquialisms or slang. By submitting a technically perfect document, you can set yourself apart from others and enhance the possibilities for future successes. Judges can be especially critical of attorneys that submit sub-par filings.
  7. Get all agreements in writing. Handshake deals aren’t the way we practice law. No matter how friendly your relationship is with opposing counsel, all agreements should be confirmed in writing. For example, if opposing counsel tells you on the phone that he or she will drop a cause of action from the complaint, get it in writing so you aren’t left without recourse if he or she reneges. And if much of your confirmation writings are in email, make sure to have a system for storing these agreements or print them out for future use. This is expecially important when reaching plea deals in criminal cases.
  8. Don’t expect law clerks and Google to tell you how to practice law. Law clerks hate calls from lawyers who try to use them as a reference instead of doing their own independent research. And you don’t want to irritate the clerk. Also, be aware that a search on Google or another online search engine doesn’t replace actual legal research, and any samples you obtain through such a search should be thoroughly researched to make sure the law cited is correct, recent, and relevant. Also, when researching, always read the entire case. Don’t depend on a summary and canned holding that may not be on point with your own case. Remember, if you annoy or agitate a law clerk the judge is sure to hear about it.
  9. For private attorneys, understand what it means to provide client value. Your work, every minute of it, is ultimately billed to a client, and you should think about how the bill will look from the client’s perspective. Keep up with your timesheets on client matters on a daily basis. Your firm and the clients will benefit from your accuracy and value your efficiency. Provide detailed billing so that you can always justify your time and don’t do secretarial work that can be billed by someone else at a lower rate.
  10. Use your tech skills. Younger attorneys are usually proficient at using computer programs, social media, and other technologies. Offer to assist your firm/office with existing skills to add value to the organization while demonstrating your own value. It will take a while to develop legal skills, so why not capitalize on skills you already have in the meantime?

July 24, 2017

Alan F. Pendleton (Former District Court Judge)

afpendleton@gmail.com

Source: CEBblog, California Continuing Legal Education. Anabella Q. Bonfa, Wellman & Warren LLP, and Diane Rifkin, Rifkin Consulting.

The “Rule of Primacy”, The Cornerstone to Effective Trial Advocacy: Plus Some Bonus Acting Tips

rule-of-primacy

RULE OF PRIMACY: Following the “Rule of Primacy” is one of the easiest (yet most overlooked) ways for attorneys to improve their trial performance. If you’re a young attorney with aspirations of becoming the next Clarence Darrow you need to know and follow this rule (all great trial attorneys do). If you’re a presiding judge who believes in the value of mentoring young attorneys, the “Rule of Primacy” should be at the top of your constructive critique list to share with attorneys following a jury trial. So, what is the “Rule of Primacy”?

The most important concept to remember in organizing your statements to the jury, whether during opening statement or closing argument, is the “Rule of Primacy:” Jurors tend to believe what they hear first and most frequently.

What someone believes first is hard to change or dislodge. That’s why going first gives the prosecution in a criminal case or the plaintiff in a civil case a distinct advantage.

But regardless of whether you speak first to the jury, you can use these “Rule of Primacy” techniques to get them on your side:

Take advantage of your opening. The opening statement is made when jurors usually are the most attentive. Using a clear theme and reinforcing it with strong language chosen to produce a specific perception in the minds of jurors can help you persuade jurors even before presentation of the evidence. If a plaintiff gives a compelling opening statement, it’s absolutely imperative that the defense’s opening statement eliminate or minimize the effect of the rule of primacy. The task is made somewhat easier by the fact that jurors tend to forget much of what’s said to them. The defense opening should take advantage of the fact that what people do remember is what they hear at the beginning and end of a presentation.

Tell them what you are going to tell them; tell them; and then tell them what you’ve told them. This presentation organization is used by teachers with students and preachers with congregations. The trial format itself echoes these principles. The opening statement provides the first opportunity to “tell them what you are going to tell them.” Then, when you present the evidence, you do “tell them.” Finally, in closing argument, you “tell them what you’ve told them.”

Use opportunities for repetition when you get them. The opening statement and the closing argument should be used as vehicles for repetition. The use of repetition, along with strong, confident language selected for its most favorable emotional appeal, can be an extremely effective way to reinforce a party’s perspective in the eyes of the jurors. This is especially true when the same theories, facts, and phrases are used in the opening statement and closing argument. Jurors tend to remember and believe what they hear most often.

BONUS ACTING TIPS: Many years ago I took an acting class specifically designed for trial attorneys. During that class they stressed the importance of several simple yet effective techniques designed to help jurors remember key points raised during your opening statement and closing arguments. 

When presenting your opening statement or closing argument one of the WORST things you can do is plant yourself in one spot never moving more than 2 or 3 feet in any direction from your podium or your self-imposed spot on the floor.  REMEMBER: When preparing for trial you literally become the producer, writer, director, choreographer and actor of your own play. For purposes of this article I am focusing on your role as the “choreographer”. 

During a jury trial, the “WELL” section of the courtroom (the area in the center of the courtroom surrounded by the jury box, judge, witness stand and attorney tables) should be viewed as your performance stage, this is your moment in the sun, your moment of truth, this is where many close cases are won or lost…..YOU NEED TO USE AND MASTER THIS AREA – YOUR STAGE! But how? The answer is simple – you need to MOVE YOUR ASS. Use the space you have been given. Take advantage of every tool at your disposal. Don’t be a talking head…MOVE, MOVE, MOVE, but move with purpose and design. In other words, during your opening statement and/or closing argument, you must learn to choreograph your every move. FOR EXAMPLE:

1. FOCUS ON WITNESS: To highlight the testimony of a credible young sex abuse victim, you could walk to the witness stand where the young child sat while cringing with fear and embarrassment, and retell her story from that exact same spot (whether you stand by the witness chair or decide to sit in the chair is a matter of personal preference, and yes, there is no rule that says you can’t sit in the witness chair during portions of your summation). From the jurors perspective, your actions will automatically trigger powerful memories of the young child’s appearance and testimony. Or, for the defense, if the child victim was NOT credible or sympathetic, you could use the same technique to highlight the glaring inconsistencies brought out during your masterful cross-examination. 

2. FOCUS ON DEFENDANT: When you get to the part of your oratory masterpiece where you want to highlight some despicable act of the defendant, a key piece of evidence pointing to guilt, or perhaps his/her confession or incriminating statement, you could walk to where the defendant is sitting and dramatically point or gesture toward him/her. How physically close you get to the defendant and how far you go with the pointing or gesturing will depend on how aggressive you want to be and how far your judge will let you go. Or, for the defense, if you have a credible and sympathetic client, you can use this same technique to personalize your client by walking over to and gently placing your hands on his/her shoulders while you highlight  how horribly unfair the system has treated him/her.

3. THE KEY IS TO MOVE: There are a million variations to this theme….the point is to choreograph your opening and closings so that you make use of the courtroom stage. You accomplish that by moving and knowing exactly where in the courtroom you want to be standing (and why) when highlighting certain facts. Your presentation will be far more interesting and thus more effective and persuasive to the jury.

4. JURORS REMEMBERING MULTIPLE POINTS: Finally, what is the most effective way to maximize juror retention when you have 3 or 4 critically important facts you need the jurors to remember? Our brains are taught from an early age to read and retain information from left to right.                                                                                

When your about to discuss your first important point pick a spot to the right of the jury box (this is to your right – for jurors it will be to their left). Stay in that general area while discussing that first point.        

When your ready to move on to point two, move your spot a little to your left (which is the jurors right, the direction in which they read) and discuss your second point.

For your third point move to a spot a little further to your left (the jurors right), etc and etc. Jurors are watching and listening to your multiple points in the same direction that they would read a book. This provides mental separation between multiple points and allows jurors to subconsciously put a place holder of sorts on each point allowing for easy recall during the deliberation process.

Based on countless post-trial discussions I have had with jurors following the return of verdict, both as a judge and during my years as a prosecutor, I can tell you with absolute certainty that these simple techniques work.

You are limited only by the lack of your own imagination and willingness to move beyond your comfort zone. 

January 15, 2017

Alan F. Pendleton (Former District Court Judge), 763-498-1508; afpendleton@gmail.com

Source: CEBblog, Rule of Primacy, Julie Brook, January 13, 2017, State Bar of California.

SNAPCHAT AS EVIDENCE: THE SMOKING GUN OFTEN OVERLOOKED

snapchat

Greetings to all my cold Minnesota friends (cold hands but warm hearts). I’m writing this post from my winter home in Scottsdale, AZ where it’s currently a balmy 66 degrees. (sorry I couldn’t resist). Since writing my last update two months ago, I had tentatively decided to stop blogging and focus my attention on other endeavors. But something changed my mind.

The blog website recently crossed a historic threshold, 100,000 visits! When I started this online training service 3 years ago I never imagined it would ever reach the 100,000th mark. Use of the Resource Library hyperlinks have actually increased over the past year and new followers continue to subscribe to the blog site weekly. In addition to the search feature for all past training updates, the most popular website feature is the Judicial Resource Library with its numerous hyperlinks to various research and reference sites.  

I decided that as long as there is continued use and interest in the blog site I will continue to post. So for this week’s post I return to my 2nd most favorite legal topic: Evidence. 

Several years ago I wrote one of my most popular training updates and cover article for Bench & Bar magazine titled: “Admissibility of Electronic Evidence”. In that article I stated:

Due to the enormous growth in electronic correspondence, electronic writings (also known as e-evidence) have evolved into a fundamental pillar of communication in today’s society. Electronic communications have revolutionized how the world does business, learns about and shares news, and instantly engages with friends and family. Ninety one percent of today’s online adults use some form of electronic communication regularly in their everyday lives.Not surprisingly, various forms of electronic evidence (i.e., e-evidence) are increasingly being used in both civil and criminal litigation.

During trials, judges are often asked to rule on the admissibility of electronic evidence. How the court rules on questions of admissibility could substantially impact the outcome of a civil lawsuit or determine the difference between conviction or acquittal of a defendant. This unique form of evidence typically falls into one of five distinct categories: 1) Website Data; 2) Social Network Communications and Postings; 3) Email; 4) Text Messages; 5) Computer Stored/Generated Documents.

All of  that is still true, but now there are many more social media platforms to consider. For example, Snapchat in particular has become a fertile source of evidence not to be overlooked.

Snapchat is a photo and video messaging app that’s different from other apps in that all photo and video messages on Snapchat (referred to as “snaps”) last for only a short amount of time and then disappear (but contrary to popular belief not permanently).

In his recent post on Technologist, Casey Sullivan explained that because “much of a Snapchat user’s life is captured and transferred through the app, it has become an important source of evidence.”

For example, in July 2016 a man and a woman in Massachusetts were convicted of sexual assault of a 16-year-old after they recorded the attack on Snapchat. Jurors were shown screenshots from the Snapchat video during the trial.

Snapchat’s speed filter, which lets users show how fast they’re going while taking a photo, was used as evidence in a Georgia case involving a high-speed car crash. Plaintiffs sued both the driver and Snapchat, arguing that the speed filter encourages reckless driving and can cause crashes. Snapchat’s speed filter also may have played a role in a car crash that killed three young women.

And in an extremely macabre instance, a teenager from Jeanette, Pennsylvania posted a Snapchat selfie with a murder victim. That Snapchat photo became key evidence against him in his murder trial. Investigators told the Pittsburgh Tribune Review that the picture, screencapped by a recipient and shown to authorities, led to a search of defendant’s home, where police found the murder weapon in the defendants bedroom, a 9mm handgun. The  16-year-old defendant confessed to the murder.

It’s easy to imagine a myriad of cases in which Snapchat can be used as evidence. As Casey Sullivan put it, “[p]ersonal injury lawyers, divorce attorneys, criminal defense attorneys, and more could all benefit from evidence found through Snapchat.”

And the ephemeral nature of pictures on Snapchat isn’t necessarily a problem. Sullivan explains that some Snapchat evidence is retained when users take screenshots of snaps and “Snapchat itself keeps logs of previous snaps.” But even deleted snaps don’t necessarily disappear; digital forensics experts can still pull them from the phone.

Now that you know to look at Snapchat for evidence, what about getting that evidence admitted at trial? For a refresher on how to get social media evidence admitted, including the key hurdle of authentication, read my October 14, 2013 Bench & Bar article on “Admissibility of Electronic Evidence – Focus on Authenticity” or my 2013 training update on Electronic Evidence (13.11). 

Try to stay warm.

Alan F. Pendleton (Former District Court Judge)                                                                             New Email: afpendleton@gmail.com

Source: CEBblog, SnapChat as Evidence, Julie Brook, October 12, 2016, State Bar of California.

The Depressed Lawyer – Why are so many lawyers so unhappy?

sad-unhappy-lawyer-attorney-biglaw-associate-depressedThe following post is a reprint of a May 2, 2011 “Psychology Today” article written by Tyger Latham, Psy.D., a licensed clinical psychologist practicing in Washington, DC.  He counsels individuals and couples, many of whom are attorneys. As you read thru this post many attorneys and judges will feel like this article was written about them.  

PERSONAL NOTE: I choose thus topic because it was not until I left the practice of law before truly realizing how rich and rewarding life could be IF AND ONLY IF we learn how to take back control of our lives (and I mean really take control). This short article provides a 10-step process on how to better manage your workplace stress and in doing so take more control over your life. Don’t wait until you retire, like I did, before coming to that realization and then doing something about it.

It is estimated that approximately one out of every 10 people in Washington, DC is a lawyer.  Not surprisingly, I’ve seen quite a few lawyers in my practice over the years.  I’m sometimes reminded of what one of my graduate school professors said about the profession:  “As long as there are lawyers,” he joked, “there is always going to be a need for therapists, because the very thing that makes so many lawyers depressed [i.e., practicing law], is the very thing they are unwilling to give up.”  This causality always struck me as a bit simplistic but I think my professor might have been on to something.  Take, for example, the following statistics:

  1. According to an often cited Johns Hopkins University study of more than 100 occupations, researchers found that lawyers lead the nation with the highest incidence of depression.
  2. An ABA Young Lawyers Division survey indicated that 41 percent of female attorneys were unhappy with their jobs.
  3. In 1996, lawyers overtook dentists as the profession with the highest rate of suicide.
  4. The ABA estimates that 15-20 percent of all U.S. lawyers suffer from alcoholism or substance abuse.
  5. Seven in ten lawyers responding to a California Lawyers magazine poll said they would change careers if the opportunity arose.

Although alarming, these statistics are probably not too surprising to those in the profession.  I’ve known and worked with quite a number of lawyers over the years and while I’ve found many to be genuinely happy people, I’ve encountered just as many who are not.  While I wouldn’t say the legal profession is the sole source of all lawyers’ unhappiness, I do think the profession at times contributes, if not precipitates, mental health issues among those in the field.

The Psychological Constitution of the “Typical” Lawyer

In counseling law students and many early career attorneys, I’ve come to recognize some common characteristics among those in the profession.  Most, from my experience, tend to be “Type A’s” (i.e., highly ambitious and over-achieving individuals).  They also have a tendency toward perfectionism, not just in their professional pursuits but in nearly every aspect of their lives.  While this characteristic is not unique to the legal profession – nor is it necessarily a bad thing – when rigidly applied, it can be problematic.  The propensity of many law students and attorneys to be perfectionistic can sometimes impede their ability to be flexible and accommodating, qualities that are important in so many non-legal domains.

The Nature and Practice of Law 

The practice of law is rarely as glamorous as it appears on television.  Few, if any, lawyers I know have the luxury of sitting around and philosophizing about the law, at least not if they want to get paid.  The practice of law can be demanding and exceedingly stressful.  Even the most balanced and well-adjusted lawyer at some point eventually succumbs to the pressures of working in the legal field.  Put an ordinary individual with unresolved issues and inadequate defenses in a hyper-competitive environment such as the law, and you have the formula for a psychological crisis.

All lawyers experience a certain degree of stress and emotional burn-out during their careers.  I’ve had lawyers tell me how helpless and angry they feel at the perceived loss of control that comes with their legal work.  Unless an attorney has made it to the elusive position of “rainmaker,” she or he can expect to spend well over 60 hours a week (not including weekends) being at the beck and call of the managing partners.  As one attorney put it, “I lost control of my schedule while trying to maintain control of my life.”

Another aspect of the law that can be a source of stress for some lawyers is the adversarial nature of the profession itself (6).  Often times winning – regardless of how it is done – is the name of the game.  Lawyers, who want to be successful will often rely on subterfuge, conflict, and distortion to persuade others.  While these skills may be rewarded in law, they can have disastrous consequences when applied to interpersonal relationships.  

There are some lawyers who eventually decide to leave the field, while others remain despite feeling unhappy, demoralized, and trapped.  It is the latter group that can be the most destructive, whether to themselves or others.  The previously cited statistic that nearly one in five attorney suffers from alcohol or substance abuse is certainly in keeping with my clinical experience.  The “impaired attorney” shares a lot in common with the “impaired therapist.”  Both are unwilling (or perhaps unable) to acknowledge their problems and some will “act out” in destructive ways.  Unfortunately, the stigma and secrecy surrounding mental illness will often preempt impaired lawyers from seeking help until it is too late.

Practical Advice for those in the Legal Profession   

While it is beyond the scope of this post to provide an exhaustive list of what impaired lawyers can do to address these types of issues, here are 10 practical tips for lawyers in distress and those who care for them:

  1. Set realistic and obtainable goals based on what you have accomplished and experienced in the past.
  2. Learn to prioritize your life, i.e., focus and put your efforts into action items that are truly important.  Let go of those items that are either insignificant or not time-sensitive.
  3. Recognize that “mistakes” are a part of life, essential, and often present the opportunity for important learning opportunities.
  4. Be cognizant of your emotional barometer and use such information to evaluate whether you are achieving an optimal balance between life, work, and play.  If you are stressed out all of the time, pay attention to that information and make changes that will enable you to reach equilibrium.
  5. Take your mental health seriously.  Consider your mental health to be as important as any other professional obligation.  As with psychologists, impaired attorneys often ignore the early warning signs of mental illness and risk placing themselves as well as others in serious jeopardy.
  6. Seek balance in your life.  Make sure you are taking time to care for yourself so that you can care for your clients.  As with other high-pressure and demanding professions, attorneys who neglect their physical, psychological, spiritual, and interpersonal lives run the risk of making mistakes on the job.
  7. Learn to manage your stress by finding healthy outlets for it.  Whether you manage your stress through exercise, socializing, or channeling your energies into other, non-legal pursuits, be sure to make time for these things.  In fact, schedule them into your calendar and view them as every bit as important as your weekly meeting with the partners. 
  8. Accept that the practice of law is inherently stressful.  While it is important to accept this reality, it is not okay to succumb to it.
  9. Know and take advantage of your personal strengths, while acknowledging, accepting, and minimizing your weaknesses.  No one is perfect and those who assume they are, are not only insufferable to be around but also run the risk of over-extending themselves, failing at their jobs, and potentially disappointing those who count on them.
  10. Remember that true professionals know when to ask for help and delegate responsibility.  Be familiar with the resources available to you – be they personal or professional – and utilize them.  If you feel you are constantly “stressed out,” depressed, or struggling with substance abuse/dependence issues, get professional help immediately.  Just as any psychologist would consult an attorney when addressing legal issues outside of their area of expertise, so too, an attorney should be prepared to consult a mental health worker if s/he feels ill-equipped to address the psychological stressors in her/his life.

FOLLOW-UP POST: In my next post I will share with you a well-known breathing trick guaranteed to reduce stress related to high stress activities, such as starting a trial, going to court and/or having to deal with a particularly unpleasant judge (or visa versa) or before any type of public speaking event, etc.  This simple trick is based on science and really does work. If performed immediately before your stressful event it has the potential to significantly reduce your stress level and increase your level of performance.

References (as noted in the article written by Tyger Latham, Psy.D):

  1. Eaton, W.W. (1990). Occupations and the prevalence of major depressive disorder.Journal of Occupational Medicine, 32 (11), 1079-1087.
  2. Moss, D.C. (Feb., 1991). Lawyer personality. ABA Journal, 34.
  3. Greiner, M. (Sept, 1996). What about me? Texas Bar Journal.
  4. Jones, D. (2001). Career killers. In B.P. Crowley, & M.L. Winick (Eds.). A guide to the basic law practice. Alliance Press, 180-197.
  5. Dolan, M. (June 28, 1995). “Disenchantment growing pervasive among barristers,” Houston Chronicle, 5A.
  6. Braun, S.L. (May/June 1988). Lawyers and mental health. Houston Lawyer.

Alan F. Pendleton (Former District Court Judge) 

October 18, 2016

alan.pendleton@mnlegalupdates.com