Stay up to date on everything mediation!

Subscribe to our free newsletter,
"This Week in Mediation"

Sign Up Now

Already subscribed No subscription today
<xTITLE>Legal Stress</xTITLE>

Legal Stress

by John Lande
November 2018

Indisputably

John Lande

In a recent post, I described the intense stress that individual and organizational litigants often undergo as a result of litigation.  The legal system attracts and magnifies stressful conflicts, which affects everyone in its ambit.  In addition to litigants, this includes law students, lawyers, and legal academics.

This post provides excerpts from my research summarizing significant stresses affecting each of these groups and notes resources and ideas for dealing with them.

Law Students

Escaping from Lawyers’ Prison of Fear, 82 UMKC L. Rev. 485 (2014) (footnotes omitted) focuses mostly on lawyers’ psychology, but it includes the following excerpts suggesting that some of lawyers’ dysfunctions can be traced back to their law school experiences.

Research suggests that many lawyers’ problems arise during law school.  Prior to law school, law students generally had “relatively normal” mental health reflected by rates of “psychiatric distress, such as anxiety, depression, hostility, and irritability” comparable to the general population.  Although studies have found that law students generally are socially confident (or at least project confidence outwardly), some research suggests that this image may be a social mask hiding feelings of inadequacy, uncertainty, and nervousness in some students.  Several studies have found that law students “consistently report more anxiety than the general population.”  Although some students obviously thrive in law school, for others, law school is an experience of “fear and loathing.”

An especially well-designed study found that, as a group, law students experience serious distress in law school that continues afterward.  Professor G. Andrew H. Benjamin and his colleagues surveyed students shortly before they entered law school and found that the proportion who were depressed was comparable to the normal population.

During law school, however, symptom levels are elevated significantly when compared with the normal population.  These symptoms include obsessive-compulsive behavior, interpersonal sensitivity, depression, anxiety, hostility, phobic anxiety, paranoid ideation, and psychoticism (social alienation and isolation).  Elevations of symptom levels significantly increase for law students during the first to third years of law school.  Depending on the symptom, 20-40% of any given class reports significant symptom elevations.  Finally, further longitudinal analysis showed that the symptom elevations do not significantly decrease between the spring of the third year and the next two years of law practice as alumni.

Moreover, a related study found that although medical students generally experienced more distress than the normal population, law students generally experienced even more distress than the medical students.

It is not clear what causes law students’ distress.  Theorists have suggested various features of legal education may be causal factors including “overvaluing theoretical scholarship and undervaluing the teaching function, employing generally unsound teaching and testing methods, and emphasizing abstract theory rather than providing practical training.”  In particular, some things causing distress may include an intimidating Socratic teaching method, novelty of the subject matter, ambiguity of the law, heavy work load, competition, lack of grades in most courses until the end of the semester, feelings of isolation, de- emphasizing personal relationships, ignoring emotional reactions, and reluctance to get help.  Some have compared the first year of law school to “military indoctrination” in which instructors intimidate students, who are “stripped naked, so to speak, so that [they] may be remade” as lawyers and, as a result, become passive and fearful.  Some scholars argue that legal education trains students to ignore their own values, which undermines their self-confidence.  For example, Dean Edward Rubin argues that lawyers experience “ethical stress” where “lawyers [and law students] are required to be insincere, to speak words they themselves do not necessarily believe.”  He argues:

Very little of this stress [in legal education] is productive and just as little of it is necessary.  Modern learning theory not only provides no support for the Socratic Method as it is practiced in law schools, but also fails to support the idea, championed by the real Socrates, that education must be painful.  When subjected to stress, people tend to become defensive, constricted, and instrumental.

While such curricular and pedagogical factors certainly are plausible causes of some students’ distress, other factors (that may or may not be related to features of legal education) may be responsible for students’ distress, such as changes in personal relationships or influences from their employment.

Lawyers

The article continues …

After graduation from law school, lawyers frequently experience “psychological problems, substance abuse, depression, anxiety, and job dissatisfaction.”  In one study, researcher Connie Beck and her colleagues find that “throughout their career span, a large percentage of practicing lawyers are experiencing a variety of significant psychological distress symptoms well beyond that expected in a normal population.”  Beck estimates that “[a]pproximately 70% of the lawyers in the sample are likely to develop alcohol problems over their lifetime.”  Some of the causes of these problems may be related to aspects of legal practice including frequent deadline pressures, heavy workload, interpersonal and political conflicts in law offices, competition with other lawyers and law offices, financial pressures, ambivalence about their obligation of loyalty to clients regardless of the effect on others, and the competitive nature of adversary representation.  In particular, the adversarial legal system predictably leads some lawyers “to suspect everyone of ulterior motives, and encourages secretiveness, manipulativeness, and selfishness.”

Individual characteristics of some lawyers may contribute to their stress including “aggressiveness, competitiveness, need for achievement and dominance, low self-esteem, fear expressed through awkwardness, paranoia, and insecurity, ways of coping with anxiety, inflexibility and intolerance for change expressed through authoritarianism.”  High needs for achievement, success, and dominance can become maladaptive in practice, leading to “workaholism and perfectionism, which are at first rewarded by professional and financial success [but] when used in the extreme, however, exact a greater toll on the individual than the benefits they provide, resulting in stress, interpersonal difficulties, and substance abuse.”

The analogies between legal and military work may help explain lawyers’ patterns of stress and fear.  As legal warriors, lawyers engage in high-stakes conflict in which they fight complex battles under conditions of great uncertainty and risk.  Lawyers may crave exhilarating “highs” of victory but also fear the agonizing pain of defeat.  Lawyers must champion their clients’ interests even when the lawyers disagree with the clients’ decisions about how to handle a matter.  Most lawyers cannot act only as gladiators in adversarial adjudication but must also represent clients in negotiation, which requires a more nuanced form of advocacy, including conflict prevention as well as negotiation with clients, allies, and opponents.  For lawyers with a gladiator mindset, this nuanced advocacy can be disorienting and stressful as they may feel inhibited from responding in an adversarial manner because it may be counterproductive.  Lawyers with more of a peacemaker mindset may also experience stress, fearing that they may not adequately protect their clients in the face of hostile action by adversaries.  In such uncomfortable situations, lawyers can easily freeze, perform ineffectively, and exhibit counterproductive patterns including procrastination, tardiness, fatigue, depression, and alcohol and other drug abuse.

Legal Academics

In Reforming Legal Education to Prepare Law Students Optimally for Real-World Practice, 2013 Journal of Dispute Resolution 1 (footnotes omitted), I catalogued the following long list of pressures buffeting law schools and faculty, which I compiled from a symposium on legal education.

Law schools are facing what Professor A. Benjamin Spencer calls a “perfect storm” of pressures.  Symposium contributors identified many pressures on law schools, some of which may lead to increased practical education though some may actually limit schools’ abilities or motivations to move in that direction.  These pressures include the following.

Law School Market Pressures

  • shrinking pool of law school applicants
  • negative publicity due, in part, to misleading consumer information that exaggerates the benefits of law degrees
  • increased number of law schools, leading to increased competition between law schools to get students and between law school graduates to get jobs
  • need to maximize (or at least not fall in) the U.S. News rankings
  • high tuition levels and large student debt loads
  • reduced job market opportunities and income for law school graduates
  • demands by various constituencies that law schools do more to prepare new lawyers for practice, both for graduates working in big firms—whose clients are less willing to pay for new lawyers’ time during law firms’ traditional ““apprenticeship” period—as well as graduates working in solo practices or small firms that cannot provide much mentoring

Pressures to Prepare Students for Changing Legal Practice

  • increasing demands by clients for greater efficiency in legal services
  • increasing influence of technology on law practice
  • growth of alternatives to traditional litigation and changes in court-connected dispute resolution processes
  • unbundling of legal services
  • increasing competition from non-lawyers
  • globalization of the law and legal practice

Curricular Pressures

  • need to maximize student bar passage rate
  • interest in maximizing “coverage” of topics in courses, especially bar courses
  • skepticism by some faculty about the value of skills courses and a belief that students should learn practical skills after graduation
  • high priority for law schools and individual faculty to focus on producing prestigious scholarship, reducing time available for instruction
  • increased curricular requirements in current and proposed ABA standards

Organizational Pressures Within Law Schools

  • time pressure on faculty, staff, and administrators due to increasing work expectations
  • reluctance of some faculty to change an educational process that they believe worked well for them as students
  • competing views among law faculty about optimal educational goals and methods, which are often related to the approaches they use and their personnel status as doctrinal, clinical, or legal writing faculty
  • effects of the tenure system, which can reduce the interest and ability of faculty to collaborate
  • need for greater diversity in law schools and the legal profession

Pressures to Satisfy Students’ Needs

  • variation in students’ readiness for law school, including significant problems of gaps in professional preparation and inadequate student abilities as well as varied learning needs of digital-age, second career, disadvantaged, disabled, and international students
  • difficulty keeping students engaged in course work after the first year of law school
  • pressures on lawyers to specialize early in their careers, leading to increasingly specialized curricula

Institutional Pressures

  • increasing demands for strategic planning by law schools
  • increasing law school budget constraints
  • relatively high cost of clinical and skills courses compared with doctrinal courses
  • reduced funding from universities and law school donors.

Although law schools have faced many of these pressures in the past, the number and intensity of the pressures has increased markedly in recent years.  Recognition of the need for reform has become conventional wisdom within the legal academy, especially since the publication of the Carnegie Report in 2007.  Even when law school faculty and administrators have a serious desire to improve the practical education provided by their schools, however, the process for planning and implementing such changes can be quite challenging due to the multiple pressures that often push in different directions.

In Plain Sight

It will not shock any reader of this blog that the adversarial legal system produces a lot of contentious conflict that can be extremely stressful for virtually everyone involved.  Although people may be generally aware of this situation, they may not be aware of specific mechanisms of legal stress and the symptoms they produce.  The research summarized above can help us identify, monitor, and address these mechanisms and symptoms.

Some counterproductive conflict related to the legal system is inevitable.  Some isn’t.

There is a lot of literature suggesting ways to alleviate these problems.  My colleague, Richard Reuben, pointed to two important recent reports.  The National Task Force on Lawyer Well-Being published The Path to Lawyer Well-Being: Practical Recommendations For Positive Change and the ABA published a Well-Being Toolkit For Lawyers and Legal Employers.

The articles linked above in this post contribute to this literature, including suggestions about how to reduce stress on law students, lawyers, and legal academics.  The book that I am writing with Michaela Keet and Heather Heavin, How to Help Clients Make Smart Litigation Decisions: Carefully Assessing Clients’ Interests and Risks, will include detailed procedures for lawyers and mediators to help clients manage litigation as successfully as possible, in part, by recognizing and addressing potential stresses that clients are likely to be concerned about.

Biography


John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California. He was a fellow at the Program on Negotiation at Harvard Law School and the Director of the Mediation Program at the University of Arkansas at Little Rock Law School. His work focuses on various aspects of dispute systems design, including publications analyzing how lawyering and mediation practices transform each other, business lawyers’ and executives’ opinions about litigation and ADR, designing court-connected mediation programs, improving the quality of mediation practice, the “vanishing trial,” and planned early negotiation.   The International Institute for Conflict Prevention and Resolution gave him its award for best professional article for Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007). The ABA recently published his book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money.  His website, where you can download his publications, is http://www.law.missouri.edu/lande.



Email Author
Author Website

Additional articles by John Lande

Comments