Tuesday, July 16, 2019

"Toughness" and the Legal Profession

Lawyers, we're often told, need to be tough. We need to have thick skins. As early as law school, I recall hearing some professors and lawyers send the message to students: don't coddle yourself or expect others to coddle you. Don't complain if you aren't treated kindly or if your particular needs aren't accommodated. I recall my dismay several years into practice when many practitioners openly scoffed as word got out about law schools introducing yoga sessions and therapy dogs for stressed-out students during exams. If you expect too much kindness, compassion and opportunities for self-care when you are first learning, the tough-as-steel practitioners complained, then how will you ever be able to handle the harsh realities of practice?

If you can't hack it in law school, they grumbled, then how will you make it in a courtroom with someone's liberty at stake and a mercurial judge impatiently staring you down? How will you ever be able to calmly study photographs of a murder scene and an autopsy? How will you be able to handle hearing about the terrible things some people do to each other on a regular basis for the rest of your career? And how will you be able to do all this and more while functioning on only a few hours of sleep a night in an adversarial, highly competitive, often unforgiving professional environment?

For many areas of law, traumatic fact patterns are just like the air we breathe. From the moment we start to practice, we are expected to be able to unflinchingly navigate the most heart-wrenching  factual scenarios. Moreover, the way in which we are expected to engage with all this trauma is not limited to passive exposure, but often requires us to get heavily involved in its aftermath, albeit in a very constrained and unnatural way. Depending on our respective roles in the system, this may mean being able to show empathy to and serve the interests of some deeply traumatized people, while at the same time attacking the credibility of and attempting to undermine the interests of others. On the approach that requires us to simply be tough,  lawyers are expected to find their own ways of coping with all the trauma in which they are constantly immersed without complaining about  (or even noticing) the impact this has on their own well-being or requesting any accommodations to enable proper self-care while dealing with it. At the same time, they are also expected to find their own ways to cope with all the other stressors involved in legal practice, which can include: long hours and resulting sleep deprivation,  a fear of not fitting in or being good enough, an increasing sense of isolation, and a steep learning curve in attempting to learn the complexities of quickly evolving jurisprudence. Many may even have to deal simultaneously with discrimination and harassment, for instance due to race, disability, and/or gender. No wonder we need to be so "tough."

Yet in a harsh professional landscape, are "tough" lawyers really what we need? What might we miss out on if we don't take extra care to ensure that those who would benefit from a "softer"approach can also participate in the profession? As usual, I'm not going to provide any definitive answers, but simply raise the questions I feel are important and share a few of my own thoughts.

The answer to this question depends on what our goals are. If our goal is just to maintain all those harsh realities, then maybe the same old tough-as-nails approach that mandates us all to view ourselves as virtually invulnerable warriors will serve us. But even on its own terms, we have to ask if that approach really serves its own ends. In no other context would we regard an ongoing deliberate failure to take care of oneself as a tool of the strong. A professional athlete who deliberately failed to get adequate sleep or nutrition, and made a habit of ignoring injuries for no good reason, would not be a model for others. Such an athlete might thrive for awhile but would not be doing what's necessary to sustain her performance over the longer term. At the very least then, even on the "tough warrior" scale, constantly seasoning ourselves through harsh methods with no nurturing of our own basic needs will eventually (or rapidly) break us down rather than strengthen us. At a minimum, even on this approach, we therefore need to make a habit of learning what will truly make us strong and better able to perform our difficult work throughout the several decades over which we expect to practice. We then need to be open to learning from the answers, even if regular yoga and puppy cuddling might be involved. Although not a mental health professional, I imagine that a considerable amount of self-care will not only be beneficial but also mandated for best results. It wouldn't mean that we don't challenge ourselves to be as tough as possible, but that we do so intelligently in a way that actually serves that goal.

Yet if our collective goal is to make the profession the best it possibly can be in view of our society's shared values, then we need to be open to an answer that is transformative in the sense of seeking to reshape the old way of doing things. If, for instance, the aim is to transform the profession into the kindest, most exemplary version of itself where lawyers are strong in pursuing the legitimate interests of their clients and the legal system (even when this can manifest in very adversarial, sometimes harsh ways), but also capable of great compassion, humility and empathy whenever possible, then how might we cultivate such an environment and whom might we want to be sure to include? Although I again think the questions are more important than any of the answers I might suggest, here are a couple of my thoughts....

First, we will, of course, want to include as many perspectives and backgrounds as possible to ensure that the diverse participants in the system can be adequately represented and understood.  I've already said a great deal about this in other posts so I won't repeat it all again here. In the context of improving the profession and justice system overall, I will add that since it is necessary for someone to be a member of the profession before becoming eligible to be selected as a judge, it is all the more necessary for a wide range of approaches, experiences, and backgrounds to be included in the profession. Although judges must possess considerable mental toughness to perform their functions, it is also essential that they be able to understand and empathize with the wide range of litigants and justice system participants who may appear before them. To be truly fair and impartial in a diverse environment in which some perspectives are at great risk of being silenced or misunderstood--especially in the face of so much conflict and trauma--requires strength and self-assurance but also gentleness and humility.  We need, in my view, to cultivate the latter characteristics every bit as much as the former to make the system the best it can be. Judges need to not only endure the trauma to which they are exposed, but also engage with it in a manner that is attentive, sensitive and fair. The same goes for lawyers: we all need to be prepared (when appropriate within the bounds of our respective roles) to understand and show compassion towards justice system participants from varied backgrounds.  As a profession, we therefore need to learn how to develop strength of character and mental toughness while at the same time nurturing our ability to be gentle, kind, and humble. To me, this means a professional context in which we practice being as kind and understanding  towards each other as we can be (without sacrificing our adversarial roles in the system or any of the fundamental principles on which the justice system is built).

Second, to promote the aim of making lawyers as strong as possible without sacrificing their ability to be compassionate and humble, we will need to ensure that the right conditions are present for maximum resilience. We need to learn not just how to stay afloat but also how to recover when some of us inevitably start to sink under the strain of the stress we constantly endure. Maintaining an environment and culture in which we can be open about our vulnerabilities and struggles can assist us all in recognizing when we are in need of help and how to go about getting it. In this way, it is imperative that we recognize that those who struggle and speak out about (or simply provide a model of) self-care perform a great service for the profession. It would be terrible to miss out on this contribution if we insist on acting like only the seemingly invulnerable are welcome or valued. People who aren't afraid to be vulnerable are therefore every bit as important as those who model toughness and strength in the traditional sense. And, of course, considerable strength is involved in facing up to our vulnerability.

Overall, the key point is that questions of who can and should succeed in our profession and what should be done to encourage, support, and accommodate them in doing so are not straightforward ones. We shouldn't just be asking what it would take for lawyers to succeed in view of our current professional realities, but what our goals for our professional culture should be and how to achieve them. A gentler approach could be one that keeps the things we prize (the fundamental values on which the system is built) while eliminating the unnecessary harsh edges that don't serve our values. Perhaps if we made sustained good faith efforts to enable the more sensitive among us to succeed then we could also benefit from their wisdom and insights in helping to address these critical questions...

As always, please note that I am a lawyer, not a mental health professional of any kind. I have no expertise in trauma or mental health. Also, please note that any opinions and views expressed in this blog are solely my own and are not intended to represent the views or opinions of my employer in any way. For more information about the purpose of this blog, please see here and for a bit more information about my personal perspective on this issue, please see "my story" here

I am very grateful to have received a "Clawbie" Award for this blog (which reflects the importance of this topic): https://www.clawbies.ca/2019-clawbies-canadian-law-blog-awards/

For some of my external writing on this topic, see:  

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