While most lawyers spend their non-case-related writing and thinking time on legal issues, there is a surprising number of academics who concern themselves with happiness. Sometimes it’s the happiness of our clients, for whom they blame us for our failure to deliver therapeutic justice because we’re so busy being adversarial:
The crux of the problem is this: what do lawyers practicing in accordance with the prescriptions of therapeutic jurisprudence, comprehensive law, or comprehensive justice do when a client’s actual best interests are at odds with what traditional adversarial legal representation assumes?
After all, shouldn’t we be more attuned to an academic’s view of our clients’ “actual best interest” than winning their case? Try using that next time you get an adverse result.
But the happiness of lawyers, our happiness, is also a subject of significant concern. Lawyers aren’t happy. And lawyers are killing themselves.
One by one, state by state, bar associations say the tally is rising: Lawyers are killing themselves. The Centers for Disease Control and Prevention provided CNN with the latest available data on suicide deaths by profession. Lawyers ranked fourth when the proportion of suicides in that profession is compared to suicides in all other occupations in the study population (adjusted for age).They come right behind dentists, pharmacists and physicians.
These aren’t kid lawyers drowning in debt and unemployment after having done “everything right.” although that doesn’t mean they’re having a good time. These are lawyers who have found “success.”
Prominent lawyers keep turning up dead. They came one a month in Oklahoma around 2004. South Carolina lost six lawyers within 18 months before July 2008. Kentucky has seen 15 known lawyer suicides since 2010.
At Stephanie West Allan’s Idealawg, Colorado Senior District Court Judge John Kane attributed it to the pressure of gaining and keeping “success”:
As for lawyer suicides — and I’m not trying to be flippant— I think they are billing themselves to death. The constant pressure to generate income by billing on an hourly basis is far more stressful for a trial lawyer than trials. In fact, less than 1% of cases now go to trial. The courts have become settlement bazaars.
He describes a system where we’ve ceased being lawyers and have been forced to become legal money-making machines at the expense of clients’ interests, in the speed, quality and cost of resolution. He suggests that the British system separating barristers, the trial lawyers, from solicitors, the business guys, would enable trial lawyers to avoid involvement with the money issues and focus only on providing clients with the lawyering for which they’ve been retained.
Of the many reasons why our system would be so much better with a barrister/solicitor bifurcation is that barristers are not allowed to set fees or engage in billing and collecting them. Such is done by the “clark”, the Clerk of Chambers who in England makes more of an income than the barristers he shepherds. They likewise cannot be sued for malpractice nor sue for a fee. I hear that is changing in England and the barrister/solicitor separation is withering away. Strangely, this is not because barristers want more, but because the very large solicitor firms want in and more control over the conduct of the case. With that, of course, goes the high standards of ethics and prestige barristers have; they go down the drain.
Cut to the chase, the misery stems from the money. We became lawyers to practice law, and found ourselves in a position that demanded too much business and provided too little lawyering.
At Positive Psychology News Daily, Dave Shearon offers a very different view of why lawyers are so miserable.
This process is not without its causes, four in particular.
First, lawyers deal with the toughest conflicts, ones where ordinary methods of resolving have failed (trial lawyers), or they must anticipate and plan for how to avoid or address such conflicts in advance (transactional lawyers). If there were even a somewhat obvious win-win resolution, it would have been reached prior to reaching the attorneys.
Second, lawyers must deal far more regularly with zero-sum situations than other professionals, and zero-sum conflicts elicit negative emotions. This makes it harder for lawyers to stay above the Losada line of 2.9:1 for mediocrity, 5:1 for excellence.
Third, the adversarial skills in which attorneys are trained are “negative” communications in the Losada analysis. Further, when deployed in close relationships such as a marriage, critical or advocacy responses are “turning against” the bids of the other for interaction, and Gottman’s research indicates a 5:1 ratio between “turn toward” and the other two bid responses, “turn against” and “turn away,” is necessary for relationship success.
Fourth, lawyers are required to perform “necessary evils” — the exercise of professional skill to inflict physical or emotional pain on another in service to a higher good — more regularly than almost all other professions, and to do so with a skilled advocate on the other side arguing against the necessity, the manner, or both. Further, they often must do so in the presence of the recipient of the evil and his or her family and friends. Think of a criminal defense attorney defending a child sex abuse case who must conduct a probing, challenging cross-examination of the child victim, or of a plaintiff’s lawyer in a personal injury case who must assign the “blame” for his clients severe injuries and suffering to the defendant.
While much of this rings true with anecdotal experience, that’s the job. We don’t make the mess in which people find themselves, but it’s our job to clean it up. Nobody said it was going to be fun to be society’s janitors, but if people didn’t keep getting themselves into disputes and jams, there would be no need for lawyers.
Just like the cocktail party question, each of us will have our own story as to what makes us miserable, and what makes for a good day too. Shearon’s goal is to make lawyers happier, though he neglects that our happiness would come at the expense of our clients. That’s not an option.
Perhaps the root problem is that practicing law isn’t for everybody, and just because someone can get into law school or enjoys some facet of the practice doesn’t mean that it’s a viable fit. Still, suicide is never the solution, though the more prominent a lawyer is, the harder the fall from grace. That there needs to be a graceful exit for those who can’t take it anymore seems obvious, but then there is nothing to stop a lawyer from announcing one day that she’s had enough and has decided to dedicate the rest of her life to saving kittens. It’s a perfectly fine way out.
From my perch, two things seem to permeate the problems suffered by lawyers: First, good, hard-working lawyers are not earning enough to enjoy a sufficiently comfortable lifestyle for themselves and their family to justify surmounting the barriers to entry and the headache of the job. Second, the arbitrariness of the law. Non-lawyers think the law is somewhat reliable, and if a lawyer does good work, they will prevail. We know better, and it makes us nuts.
And yet, the law doesn’t exist for our happiness, but for the sake of our clients. So if your answer to the title question is you’re not happy (and few are), suck it up. This is the life we chose, and our misery isn’t our client’s problem.
Update: For anyone still curious about the efficacy of the Losada scale of happiness, this may help to disabuse you of the validity of the numbers.