Is Psychological Distress Inevitable in the Study and Practice of Law (Part 2)
Reading Time: 18 minutes
Introduction
In the first part of my paper (see the preceding post) I outlined the findings of studies of the incidence of psychological distress and mental illness among law students and legal practitioners. I also noted the nature of resulting reforms and initiatives.
In this part of the paper I critique responses to the findings of the studies and argue that the ultimate and overriding causes of the psychological distress and mental illness of law students and legal practitioners are to be found in core aspects of legal education and legal practice. As these have been, and still largely appear to be, deemed to be inherent and indispensable features of law schools and legal practice, they restrict or neutralise the potential benefits of current reforms.
I will outline my arguments by first, considering work being undertaken to enhance the resilience of lawyers and law students, in the context of the work ethic of law schools and legal practice. I will then address the culture of excessive competitiveness that has long dominated legal education. The third illustration of my argument will focus on educational programs designed to educate law students and lawyers about mental illness. Finally, I will make a case for Law Schools needing to undergo significant change if concerns about lawyers’ and law students’ mental wellbeing are to be adequately and appropriately addressed.
Resilience
The inadequacy of remedies that are focussed solely on symptoms, and not on underlying causes, is illustrated by current initiatives designed to enhance law students’ and lawyers’ resilience.
The enhancement of resilience is commonly presented as a means of preventing or minimising psychological distress in the stressful and demanding environment of law schools and legal practice.
Enhancing resilience through awareness of work and study practices which are or are not conducive to mental wellbeing will undoubtedly assist lawyers and law students, by making them aware of practices to avoid or minimise, and of work and study practices to adopt in order to enhance the capacity and ability to withstand the pressures and stresses of law school or legal practice. As the researchers of the Melbourne study noted, some ‘students, and lawyers, accept discomfort and depression as part of the ‘cost’ of becoming a lawyer…it is imperative that this is not a lesson ‘taught’ by law schools.’
The effectiveness of current resilience enhancing strategies relies on lawyers’ willingness to participate and apply newly gained knowledge. In addition, it also depends on whether law schools and legal firms will permit the implementation of acquired strategies. Anecdotal evidence suggests that resilience training of lawyers is only acceptable to some law firm partners if presented as business development, and that lawyers who attend training sessions rarely implement recommended strategies.
Resilience enhancing programs presented to the legal profession expressly set out to also promote awareness of work/life balance, health and exercise. However, in workplaces resilience continues to be perceived as being an enhancement of capacity to work, at the other end of the spectrum to work/life balance. In this sense resilience implies capacity to cope with work demands that expects personal sacrifice. Harrison Barnes, an American legal recruiter, perhaps best illustrates the polarity between family/personal life and work resilience by expressly and unapologetically stressing that a lawyer’s work priorities need to be health first, work second and family and personal life third. To him, health builds up resilience enabling a work performance at a level that ensures success or at least survival in legal practice.
Resilience, I propose, is a part of the work ethic that dominates legal practice, and is encouraged and expected in law schools and traditional legal practice. Top law students and the most valued lawyers are those who give their priority to, and as much time as possible, to study or work. This is praised and encouraged.
To counter this admiration of unhealthy work habits or study dominated lives, law schools should require students to consider theories of work productivity, the role of rest and exercise, and work life balance, as part of their preparation for professional careers. Providing such education through elective subjects or informal training would, in my view be inadequate, because unless such education is a part of the core curriculum it will not be taken seriously.
The traditional legal work ethic of expecting as much effort and work time as possible accounts for the excessive amount and difficulty of work expected in law school. If law schools are not able to justify all the work required of students, then instead of asking, ‘how do we help students cope?’ the question should be, ‘do we need all this material, and does it have to be this difficult, obscure, and impersonal?’ For example, law schools persist in focusing teaching on ‘black letter law’, at the expense of context, analysis and debate, and consequently a more satisfying learning experience. Yet, little of the black letter law taught will ever be of direct or indirect use to students following their graduation. Teaching of the more obscure black letter law appears to only boost competition, and intellectual snobbery.
The time expended on law school study that is undertaken in expectation of reward for resilience, also comes at the expense of time that could be spent on reflection required for deep learning, originality and creativity. Punishing levels of work are also achieved at the cost of rest, which is presented and perceived as a luxury rather than as time that complements learning and productivity. As the UWA study revealed, law students’ low appraisal of social activities may be said to illustrate this work culture.
Excessive emphasis on work tends to also relegate socialising, family, exercise and healthy diet to be of secondary importance. Law schools and law firms need to be reminded that exercise has been shown to not only reduce stress, but to also be as effective as anti depressant medication. Consequently, they need to ensure that students and lawyers do not only see exercise as an extra-curricula activity, but that they are encouraged to participate and to see exercise as an important element of maintaining health to enhance their work performance and enjoyment of life outside of work.
Law professors need to recognise that students see them as role models. If they are perceived to do nothing but work, they will convey the message that resilient pursuit of work is the recipe for success. As the Western Australian study revealed, law students’ wellness depends on students’ positive appraisal of their activities including in particular their social activities which in turn is affected by their involvement, peer and staff support available to them and their sense of belongingness.
Excessive Competitiveness
Attempts to address excessive competitiveness provide another illustration of the need for significant change in the study and practice of law.
Excessive competition dominates legal education and practice. Such competition is particularly evident in admission to law school, assessment of student work, and in student applications for summer clerkships and work in legal practice. The excessive competition in law schools has been identified by some graduates as being at the core of stress in the study of law and securing work.
If excessive competition is to be confronted, efforts need to begin even prior to admission, to ensure that the selection process does not reward student applicants for unnecessary levels of effort. Instead, law schools should select students on the basis of their proven aptitude for the study of law, complementary interests and habits which are likely to enable a balanced life as a law student and legal professional. In this way, even prospective students could be encouraged to nurture complementing and diverse interests and demonstrate a commitment to valuing and balancing different facets of their lives. Such an approach is not new. It has been used effectively by some Ivy league law schools in America.
Once admitted, students are informed that academic success calls for them to compete against fellow students rather than collaborate with them. They are warned against colluding with fellow students, which in itself serves to lessen interaction between law students and deprives them of the supportive network they could turn to in times of need. Additionally, in being asked to view their fellows as competition (which is especially the case where grades are determined by ranking and standardisation rather than on pure merit) students are likely to be discouraged from revealing a perceived weakness such as mental illness to their competitors.
Law schools could help lessen the stressors of intense competition for summer clerkships and the dwindling number of jobs in legal practice by making students more aware of the disparity between expectations and reality of legal practice, and perhaps more importantly, career alternatives to legal practice to which students may be better suited. As I discuss below, alternatives to legal practice need to be presented as genuine alternatives rather than as fallback options for students who miss out on a job in legal practice. If students see that alternative career paths cater for different temperaments, interests, life goals, and interests, they are less likely to compete for a position in legal practice, only to give it up a short time later.
I am not advocating for the total removal of competition from legal education and practice. Some competition is of unquestionable benefit, but an excessive emphasis on competitiveness is detrimental to the wellbeing of both law students and lawyers and needs to be addressed and lessened.
PROMOTING UNDERSTANDING OF MENTAL HEALTH
The education of lawyers and law students to promote their understanding of mental illness offers additional practical reasons for changing the culture and practices inherent in legal education and legal practice.
The effectiveness and adequacy of current approaches to promoting understanding of mental illness, treatment, services and assistance, and appropriate responses to those affected, is open to question for a number of reasons. Attendance at training or information sessions is dependent on the willingness of lawyers and students to attend. Consequently, in light of the stigma and perception of weakness which continues to be associated with mental illness, such education may not reach those most in need of the information. Secondly, I propose that when presented in isolation and not as an integral part of studies or employment such education will continue to be seen as a soft option. Thirdly, I question the currently preferred method of delivery (at least in the case of law students) information about mental illness has been found to be overwhelmingly sourced online.
Instead I propose that in law schools such information should be an integral part of a work related theme subject, providing students with holistic preparation for professional life, which would not only overcome the above hurdles but enable mental illness to be addressed more comprehensively, in the broader context of wellness, work-life balance, productivity and business development.
In promoting an understanding of mental illness, care must be taken not to overgeneralise, oversimplify or exaggerate. For example, the brief materials currently being presented make little if any mention of the difficulties associated with the diagnosis and treatment of mental illness. It is vital to appreciate that the diagnosis of a psychiatric disorder may change over time, that the correct diagnosis may only be made after a significant time of treatment, that medication may take some time to be effective, that medication may be changed a number of times before an effective medication or dosage is found, that psychiatric medication may have significant side effects and that relapses are common during the treatment of mental illness.
Currently the information provided tends to focus on preventable and treatable mental illness. This may cause law students and lawyers to understand mental illness in a way that downplays or ignores causes such as underlying or hereditary susceptibility. A profound personal event such as the death of a child or excessive work causing prolonged chronic stress or depression, may prove to be easier to accept and accommodate. Consequently, it is important to understand that mental illness may affect law students and lawyers for what appears to be ‘no reason’.
In seeking to encourage affected law students and lawyers to seek help, and to equip their peers to respond appropriately, existing education seems to exaggerate the extent to which the mentally ill can be cured. A more realistic approach should emphasise the management of an illness, stressing that even when an illness is successfully treated there is no guarantee that it won’t return. In many cases mental illness needs to be treated as a life long condition needing to be maintained rather than being cured. The extent of change required of an affected person may be greater than initially acknowledged. Deaths of treated and seemingly cured lawyers have starkly illustrated this reality. Others were lucky enough to be given a second chance, and responded by drastically changing their approach to legal or judicial work.
Stress has also tended to be discussed as a cause of psychological distress and mental illness. However, stress can in fact be both beneficial and destructive. The latter is distinguishable from the former by emerging when chronic levels of stress are maintained for a prolonged period of time. On the other hand, it must be recognised that stress can be beneficial to performance, and in small doses, to the prevention of depression.
The current response to chronic stress focuses on the management of symptoms and treatment through meditation and exercise. While undoubtedly beneficial, this focus on symptoms tends to relegate the identification and removal of causes to secondary status, as it appears to come up against the work ethic and overly competitive culture of law schools. As these elements of legal study and practice are deemed inherent features of the training of lawyer, the focus of stress related education is on helping students and lawyers cope with the stress and less so on eliminating the causes of the stress.
Significant research has been undertaken on stress in the workplace. Studies of stress affecting lawyers and law students have tended to focus on the demanding nature of the work and study. In this respect the constant pressure of continuous assessment on students may produce a destructive stress through exposure of students to excessive levels of stress on an ongoing basis. This may contrast with assessment through end of semester or year examinations where the short period of stress, rather than being destructive, may actually serve to allow students to rise to the occasion and excel. In legal practice, the stress of meeting a deadline or courtroom advocacy may serve to assist the effort and is not generally destructive. What can turn a high levels of work stress into destructive stress is if it is not punctuated by breaks or regular relaxation of stress. Therefore, no matter how resilient a lawyer may be, relentless 24/7 chronic stress will eventually become destructive.
A largely overlooked finding regarding stress is that it is often caused not by the work, but by the workplace. This encompasses factors such as: whether employees’ are treated with courtesy, respect, due recognition, inclusiveness, the firm’s integrity and how it sits with the worker’s moral compass, and by the exercise of positional power in the workplace. These causes have traditionally tended to be overlooked in the legal workplace where the maltreatment of a young lawyer by senior lawyers and members of the judiciary was considered to be an exercise in toughening them up for the rigours of legal pracUIKeyInputDownArrowtice.
Rather than just being prepared to meet the pressures of legal practice, students need to recognise that we are all susceptible to different stressors, in that we may thrive in a setting where the particular stressors may bring out the best in us rather than lead us to develop psychological issues. Students who are daunted by what they see as the personal stressors of legal practice, should not be made to feel that they’re simply not tough enough, but rather should be encouraged to consider whether they may have good reason to feel negatively about legal practice or particular forms of legal practice. They should be presented with and asked to consider alternatives to that form of legal practice or alternatives outside of legal practice. Above all they should be discouraged from seeing legal practice (or a form of it) as the only worthy career option.
NEED FOR SIGNIFICANT CHANGE IN LAW SCHOOLS
Finally, I’d like to outline an argument for why law schools need to undergo significant change in order for the high incidence of psychological distress among law students and lawyers to be addressed effectively.
Many academics now accept that significant changes in the content and teaching of law courses is required. As the researchers of the Melbourne study noted, current reforms ‘may have limited impact on students’ wellbeing levels, at least while the underlying law school culture and the teaching and assessment culture in particular remains unchanged.
One of the proposed reforms is for a shift away from the traditional focus on black letter law and doctrine, towards a more contextual focus which would encourage critical thinking and legal reform.
The role of law schools needs to be re-examined in light of several key factors, perhaps the most significant being that only approximately one-half of law graduates intend to go into legal practice, in part due to an increasing number of students applying for a shrinking number of jobs. Those who do go into legal practice don’t stay long leaving, on average after 3 to 5 years.
For law schools, the elephant in the room is the need to completely change the curricula. If the law degree is to prepare students for the range of jobs law graduates are currently choosing, all law students cannot be required to complete a core curriculum designed to prepare them for legal practice. Enabling students to tailor their studies to their areas of interest and preferred employment area would undoubtedly serve to reduce some pressures, stresses and competition. The needs of one half of law students should not be ignored. Students who plan to go into legal practice would also benefit through less competition for summer clerkships and law firm jobs.
An additional complicating factor that appears to have caught law schools off guard is that the nature and work of lawyers is undergoing significant change. Law graduates have been found to be legally too traditional and consequently ill equipped for current legal work and and needs of the legal profession. For example, current law graduates struggle in mediation and inquisitorial proceedings. For this reason alone the conveyed concept of a lawyer, and legal reasoning, cannot rely on black letter precedent arguments reflecting the traditional role of lawyers. As the authors of the ANU study report stated, ‘the conception of a lawyer as adversarial, emotionally detached, and competitive is a distorted incomplete and inadequate model for law study and practice’. Law schools are out of step with developments in legal practice and in particular with the move away from representing a client in adversarial proceedings,, to one of assisting a client resolve a dispute through means such as mediation, and to inquisitorial proceedings in Tribunals.
Law schools appear to still see their role as preparing students for traditional legal practice, and consequently law degrees are dominated by teaching and reading black letter law. Courtroom advocacy, client interviewing and legal writing are skills perceived to be required by a legal practitioner. For this reason, and those discussed above, it is imperative that law schools present the role of lawyer and legal work as extending well beyond adversarial legal practice and black letter law.
Law is also clearly much more than the perception currently conveyed in law schools, of it being largely confined to court proceedings and the representation of clients. Law Schools must promote a broad view of law that encompasses the various roles of lawyers and other law related work of law graduates.
As the ANU study researchers suggest, negative perception of lawyers to a large extent flows from the appeal judgments that students are asked to read. Justice Kirby has observed that some of Australia’s most prominent jurists were also prone to treat others in a manner likely, or even intended, to inflict psychological distress. Perhaps students should be invited to consider whether these ‘great judges’ are worthy role models, and whether their reputation for abominable treatment of others would currently be condoned. In addition, students should note that the behaviour of some judges and lawyers may actually explain why they rose through the ranks of the profession. In this regard, students should also be invited to consider why behaviour symptomatic of mental illness may be the same behaviour that is rewarded by promotion and acclaim in legal firms or by judicial appointment. Consequently, while mental illness is generally perceived to be a handicap to success in a legal career, it is important to note that it may in some cases the law may reward those affected. As Dr Robert Fisher, Head of the Department of Psychiatry and Psychological Services at Sydney’s St Vincent Private Hospital, observed, ‘The very things that make you a good lawyer also happen to predispose you to developing depressive illness’.
A ‘hardworking’ or unemotional lawyer who is not rattled by human tragedy, or a law student who will do whatever it takes to be top of the class, may be exhibiting symptoms of their mental illness or personality disorder . Alternatively, they may have no personal life or be in personal turmoil. Such people have been, and may still be, rewarded and held up to their peers as exemplary lawyers or students. Only when they break down or descend into serious depression, psychosis or take their lives, is their mental illness recognised. Law firms and law schools can increase the chances of identifying the symptoms of mental illness by encouraging wellness and balanced lifestyles rather than by rewarding excessive effort.
Many of the issues raised in this paper point to the need to change the law school curriculum, particularly to reflect and prepare students for a spectrum of work after graduation, and in recognition of expected changes in career to equip students with transferrable skills.
The above discussion also has implications for how law ought to be taught. Studies of students wellness suggest that the study of law should be more interactive, less focused on black letter law, should permit self reflection, and permit law and lawyers to be seen in a broader sense
The role of such reformed law schools would be to produce graduates who critically understand the law, its basis and its breadth, and who are aware of how to engage and develop their knowledge and skills while optimising wellness and life/work balance in a variety of careers and career changes.
HURDLES CONFRONTING NEEDED REFORM
A number of significant hurdles confront the adoption and implementation of such reforms. The researchers in the UWA study identified the following major hurdles confronting the adoption and implementation of reforms, ‘the increasing cost of education, diminishing value of a university degree, and anti-intellectualism which promoted a view of education as a job ticket, while denigrating the value of education for personal and societal enrichment and visibly greater enjoyment of studies facilitating grappling with larger issues and personal values rather than impersonal legal precedents.’
The proposal to drastically change the law school curriculum currently faces a seemingly insurmountable hurdle in the form of the Priestly 11. This term refers to the eleven law subjects, or subject areas which must be successfully completed by students, to qualify for admission into legal practice. Similarly, to be recognised as qualifications for admission into legal practice, law school courses must require students to successfully complete all of the 11 subjects. Even the content of these eleven subjects is prescribed as each subject is required to cover a mandatory list of topics. The eleven subjects are: Administrative Law, Civil Procedure, Company Law, Contracts, Criminal Law and Procedure, Equity and Trusts, Ethics and Professional Responsibility, Evidence, Federal and State Constitutional Law, Property, and Torts. Whether this list of subjects is an appropriate preparation for legal practice has long been questioned. That the study of these 11 subjects is not an appropriate preparation for the range of law and law related careers of present day law school graduates is, I suggest, self evident.
Almost all of these prescribed subjects and their prescribed topics focus on black letter law. Little room is left in a law degree for students to engage in critique, debate and reflect or pursue specific law related interest areas or subjects preparing the for professional working lives. It is difficult to understand why dispute resolution including mediation is not compulsory, nor why broad skills such as research, legal writing, public speaking, interpersonal communication and relationships, are not part of the core curriculum.
CONCLUSION
In this paper I have argued that unless some inherent aspects of legal training and practice change, attempts to address the high incidence of psychological distress and mental illness among Australian lawyers and law student will at best be only partly successful. At the same time I have endeavoured to show that the required reforms would affect aspects of legal education and practice which should no longer be considered intrinsically essential, and that legal practice, legal education and most importantly the wellness of law students and lawyer would be enhanced by such changes.
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So interesting to read about as related to another discipline. We face not unsimilar issues in the performing arts. Perhaps what I've seen in the field of the performing arts also holds true within the legal field? I refer here to something basic and fundamental: the right to a 'healthy' educational and professional experience seems to be ultimately less valued and cherished than the opportunity to gain the 'glory' that accompanies success through crucible experiences. (One core problem: we all overestimate our pluck and underestimate the role of fortune in the success of others. And the exceptionally fortunate necessarily have disproportionate impact on the shape of training model and the professional field.) A complex and difficult issue. Thanks for pushing thinking, brother!
You sum it up so well, Michael. Thanks. Yes the issue certainly is one that applies across disciplines, even if we tend to see in terms of our own. There would appear to be a clear role for university courses to ask students to compare expectations with reality. A message to convey is that total focus and maximum effort may or may not lead contentment and a sense of success. Your comments, whether in agreement or not will always be welcome.