Abstract
Does anyone actually know whether we produce better lawyers now than in the past? So asked Professor Hugh Brayne, concerning legal education in England and Wales in 1996 (Brayne, 1996). He observed that we certainly give students more legal education, but could not answer the question because there was no consensus on what makes good lawyering, nor on how it could be measured. There is one measure that should be included in a definition of good lawyering: the well-being of lawyers. If lawyers suffer clinical depression significantly more than the general population, many would think that law schools should reconsider their curriculum. Some law schools might reply their brief is to teach law, not lawyering.
This paper discusses proposed research on the well-being of Australian lawyers in the workplace. It examines what we know about workplace satisfaction for lawyers in Australia, compared with the worrying findings about the legal profession in the United States. The paper examines the likely causes of dissatisfaction including how universities traditionally teach law and what students are not told about legal practice. We discuss the need to investigate the well-being and satisfaction levels among newly-admitted lawyers, and to consider ways to teach law that could help lawyers not only make wise career choices but develop strategies to cope better with stressors in their workplace. Clinical legal education could help students develop professionally as well as personally in order to improve their chances of having a happy and productive life at work.
The Problem in America
Practising law is dangerous for your health. Many studies over the past two decades show lawyers in the United States suffer poor physical health and significant levels of mental illnesses, especially depression, alcoholism and drug abuse, as well as high rates of divorce and suicidal ideation. Depression alone may be considered by some employees to be an occupational hazard of a stressful job, but it should be a concern for clients and employers as well, because it has a significantly detrimental effect on performance (Martin, 2001). Martin found that the likelihood of decreased performance was seven times higher for depressed employees. The problem in the legal profession was clearly identified in the 1980s and the blame sheeted to law schools (Benjamin, Kazniak, Sales, & Shanfield, 1986). By the 1990s the situation had deteriorated and became a concern for the American Bar Association (Benjamin, Darling & Sales, 1990).
[L]awyers in the United States suffer poor physical health and significant levels of mental illnesses, especially depression, alcoholism and drug abuse, as well as high rates of divorce and suicidal ideation.
n 1998 Professor Susan Daicoff argued there was a “tripartite crisis” in the legal profession, consisting of a decline in professionalism, a decline in the public opinion of lawyers and a decline in the wellness and satisfaction levels of practising lawyers (Daicoff, 1998). Subsequently, in 2005, Seligman, Verkuil & Kang published the results of a study that confirmed growing unhappiness among lawyers, particularly young lawyers. They consulted legal academics and practitioners including managing partners in large firms and the American Bar Foundation, and they found that the dissatisfaction stems from three causes. First, employers select lawyers for their pessimism (or “prudence”) which is encouraged and is general to the rest of their lives. The second reason is that young lawyers typically hold jobs that involve high pressure and low decision-making capacity, which promote poor health and low morale.
Third, adversarial legal systems are largely a zero-sum game, where lawyers must use aggression to compete successfully and one party’s win is another’s loss. Leading American lawyer Sol M Linowitz (1994, pp. 107-108) concluded the single-minded drive to win in the adversarial system makes “young lawyers not only less useful citizens … but also less good as lawyers, less sympathetic to other people’s troubles, and less valuable to their clients”.
Subsequent research has proposed ways out of the paradox, but it remains to be seen the extent that the worst perpetrators in America, the large firms, are willing to reform certain practices that impact on their legal staff in such negative ways. Until they do, the findings serve as warnings to individual lawyers, who should take seriously the risks of working for employers who, for example, impose inflexible working conditions. Typically, firms practice law as a business, not a service, and some would make no apologies for putting profit ahead of the well-being of their staff.
The Problem in Australia
In Australia and New Zealand practicing lawyers face less risk, but the situation is deteriorating (Prodan, 2003). There are some early signs of the awful “tripartite crisis” in Australia. In 2001 the president of the Law Council of Australia addressed the 32nd Australian Legal Convention with a paper that began like this:
There has been an unprecedented number of attacks this year on the legal profession characterising it variously as greedy and self-serving, as tax avoiders and abusers of the system for personal gain. In formulating these attacks, commentators have attacked all lawyers, without differentiation (Trimmer, 2001).
www.lap.com.au). Subsequent studies commissioned by the Law Society of New South Wales from 2001 to 2004 show between 13 and 18% of responding solicitors were either dissatisfied or very dissatisfied with their jobs (Mercer Human Resource Consulting, 2001, 2002, 2003 & 2004). In 2004, 52% of NSW respondents indicated that stress at work had increased over the previous 12 months and about a third reported experiencing discrimination, harassment, intimidation or bullying.
Law schools can never teach all the law, and are easy targets for accusations that they teach “the wrong thing”. In Australia both the 1987 Pearce Report (Pearce, Campbell & Harding, 1987) and the 1994 McInnis and Marginson Report (McInnis & Marginson, 1994) provided critiques of the slowness of law schools to introduce legal skills into the curriculum. Similarly, the Australian Law Reform Commission in 2000 called for legal education to focus on what lawyers need to do rather than traditional notions of what they need to know (Australian Law Reform Commission, 2000). In 2001 the Law Council of Australia blamed the Commonwealth Government for starving law schools from the late 1980s by placing them in the lowest funding category at a time when studying law was becoming very popular (Law Council of Australia, 2001). While practical legal training had commenced in large firms and some law schools by 2001, the Law Council complained there was no coordination or monitoring of standards.
In the late 1970s many lawyers suffered not only from high work loads but from inexperience and the frustration of knowing the theoretical answer to a client’s problem but having no idea of the procedures necessary to solve it. Since then the Lawyer’s Practice Manual has helped steer many lawyers in the right direction when they have a particular type of matter for the first time. The Lawyer’s Practice Manual is an updated looseleaf service available for most Australian States through Thomson Law Book Co. However knowing the law and knowing about legal process is not enough. As Neil Rees indicated in 1980, many lawyers suffer burn-out because they frequently work with people experiencing distressing problems and are often the harbingers of bad news in their advice; they have to communicate with people at a deep level but get no training in interpersonal skills; and some are very sympathetic with their clients but tend to overcommit and take every loss personally (Rees, 1980).
Recognition of these problems helped the growth of clinical legal education, which has made inroads in Australia since the 1980s. The first clinical legal education began through Monash University in 1975 and the second through the University of New South Wales in 1981. There are several unpublished reports on the early development of legal clinics in Australia (Rice, 1996). Many clinical programs provide students with experiences that help them develop their interpersonal skills. However the combined impact of clinical legal education so far on the Australian legal profession may not be enough to stave off a crisis.
Most academics and practitioners would agree that practical legal training helps individuals entering the profession as well as benefitting their employers and the community they serve. However, the debate has been dominated for too long by a dualist argument that perpetuates a continuum between doctrinal legal education and practical legal training. Neither of these two, nor even combining them, is likely to make much difference to the satisfaction and long-term survival rates of practitioners until law schools recognise the value of personal development as part of legal education. Practical legal education must not be confused with clinical legal education (Rice, 1996). Law schools may need to accept their task is to not only teach law and lawyering, but to do it in a way that facilitates personal development.
The Problem with Law School
The desire to prevail is natural: the need to prevail is destructive (Kreiger, 1998).
A personal account published by a graduate professor found “law school was marred by an atmosphere of fear, intimidation and psychological manipulation of law students’ sense of self”
Researchers have identified many causes of depression among lawyers, however knowing the causes has not led to any significant changes in the profession or in the incidence of the illness. Early American data showed that four out of ten students who entered law schools up to 1967 failed to graduate (Miller, 1967). In 1980 the American Bar Association awarded a prize to a student editorial that abhorred the “unwarranted stress” placed upon law students at the University of Arizona and the lack of concern for them by faculty (Heins, Fahey & Henderson, 1983). The university subsequently surveyed law students and medical students at the beginning of their second year, and found that law students suffered significantly more “Academic Stress” and “Fear-of-Failing Stress” than medical students (Heins et. al., 1983). Concurring with these findings was a personal account published by a graduate professor, who endured the process but found law school was marred by an atmosphere of fear, intimidation and psychological manipulation of law students’ sense of self (Halpern, 1992).
In 1985 a group of American researchers criticised previous studies on law students’ stress levels because: “no study examined the longitudinal psychopathological conditions students acquire before, during, and after completing law school” (Benjamin et al, 1986). They then administered a battery of five tests to 320 students and alumni from the University of Arizona Law School over the period from 1981 to 1984. The tests were designed to check for the following symptoms: obsessive-compulsive behaviour, interpersonal sensitivity, depression, anxiety, hostility, phobic anxiety, paranoid ideation, and psychoticism (social alienation and isolation). The results could be called alarming. Prospective law students showed “normal” symptom levels, although these increased significantly during law school, and continued for 20-40% of students at least for two years post graduation (Benjamin et al, 1986). While 3-9% of the general population suffer clinical depression, 17-40% of law students were clinically depressed, and 20-40% suffered from other symptoms as well.
One study considered another arm of the tripartite crisis in the legal profession as identified by Daicoff (1998). In 1991 Janoff published her research on the influence of legal education on the moral reasoning of lawyers (Janoff, 1991). She found that the first year of law school had an insignificant effect on men’s moral reasoning but a substantial effect on women’s moral reasoning. The explanation she argued was that most women enter law school oriented towards interpersonal relationships rather than to a hierarchy of abstract principles. Legal education is more aligned to how men think and so had less impact on their moral reasoning than it did on women.
Implicit in Janoff’s conclusion is a suggestion that law schools, and ultimately the legal system itself, might benefit from ceasing its suppression of the “voice of care” or what Carol Gilligan (1982) called the traditionally feminine values of connectedness, care, and circumstance. That kind of change will remain difficult while law schools inculcate the priority of winning in the adversarial system of law. A contrary force is the rising significance of “alternative” forms of dispute resolution, such as mediation, partly driven by the shortage of legal aid funds and partly by the success of “alternative” programs such as therapeutic jurisprudence and preventative law, which call for changing the adversarial mind-set.
In 1998 clinical professor Lawrence Krieger argued the dehumanising aspects of legal practice and legal education cause the most distress for lawyers and law students (Kreiger, 1998). He and others have been particularly critical of the narrow focus of legal education, such as getting students to think “like a lawyer”:
Thinking “like a lawyer” is fundamentally negative; it is critical, pessimistic, and depersonalising. It is a damaging paradigm in law schools because it is usually conveyed, and understood, as a new and superior way of thinking, rather than an important but strictly limited legal tool (Kreiger, 2002 p.117). {emphasis added} Research in 1999 suggested that law schools contribute to the malaise in the American legal profession as law students exhibited higher levels of depression than the general population (Dammeyer & Nunez, 1999). Those findings were confirmed by Krieger (2002) when he and K. M. Sheldon, psychologist, found that law students who at orientation exhibited normal mental health patterns, by second year displayed significant anxiety, depression and reduced motivation.
Legal education seems to reproduce and reinforce a culture that prioritises “external” measures of success, such as grades, credentials, appearances, money, win-ratios and prestige. Legal practitioners are known for making choices that correlate strongly with needing external rewards and recognition, but which also produce high levels of stress (Kronman, 1993).
Doctrinal law schools emphasise “legal analysis” and teach that the law exists as a discoverable truth. There is no place for the uncertainty of real life when the focus is on finding the correct answer from analysing complex legislation and precedent appeal cases. Most students are taught as if law is already justice, instead of an attempt to achieve it; as if there is a correct and identifiable answer in every case.
Law schools often teach in the paradigm of a perfect world where legal services are affordable by those in need and legal aid covers the rest; politicians comply with international treaties; laws are comprehensive and comprehensible; judges reason consistently and follow precedents; juries make logical decisions; police are responsible; courts are efficient; lawyers are ethical; witnesses tell the truth; and the client’s instructions are complete.
Legal process is dominated by correct form-filling and assumes the priority of winning in the adversarial system of law. Students learn little about the uncontrollable variables in every case and the role of chance that make most legal outcomes unpredictable. The messiness of real life impacts significantly on legal practice but is ignored by academia.
It is legal clinics, but not practical legal education programs, that can provide students with a taste of this chaos of life and expose them to the erratic and nuanced complexity of lawyering. Just a taste may be all they need, provided they are supported by confident and compassionate legal supervisors. Students need to learn not to panic when they don’t know the answer to a client’s legal problem. They need to develop their own way of understanding the law and procedures in the context of the myriad exceptions and contradictions that come with their clients’ experiences.
Similarly, while law schools acknowledge the importance of professionalism, they often teach it as an academic subject called “legal ethics”, consisting of rules and principles to be memorised. In clinics, students can be supported to develop “internal” criteria of professionalism such as personal values, conscience, feelings and character. Students whose academic experience provides them with no clinical exposure to develop their emotional competencies will find it harder to adjust to the surprises that await them in legal practice.
Please download the remainder of this study in PDF format using the link below. This article was originally presented at the 2nd Asia-Pacific Educational Integrity Conference. University of Newcastle, 2 – 3 December 2005. The article featured here was updated in 2007.
