The Culture of Law (11): Time is Money

We’ve been talking about money, now let’s talk about time — a natural segue for a profession that logs value in 6 minute increments.

Working long hours is a law cultural norm, and never mind that it’s no secret any more that working too much is counterproductive. This Time article featured popular author, TED talker, and professor Brené Brown:

“[Ms Brown] talks about how people use the idea of being “crazy busy” as a sort of armor—a justification for not bothering to pause, evaluate what’s going on in your life, and reconsider decisions regarding lifestyle, work, family, and perhaps whether it’s really necessary to be ‘crazy busy.’

“Also, she reveals that, for the most part, highly successful people understand that perfectionism is not healthy and ultimately gets in the way of progress.”

Also never mind that overworked unhappiness abounds on both ends of the legal profession’s financial food chain. In this New Yorker op-ed piece a few weeks back, Columbia Law professor Tim Wu fingered the tyranny of technology as the culprit, citing the long hours of litigation as an example.

“Consider the litigation system, in which the hours worked by lawyers at large law firms are a common complaint. If dispute resolution is the social function of the law, what we have is far from the most efficient way to reach fair or reasonable resolutions. Instead, modern litigation can be understood as a massive, socially unnecessary arms race.

“In older times, the limits of technology and a kind of professionalism created a natural limit to such arms races, but today neither side can stand down, lest it put itself at a competitive disadvantage.

“A typical analysis blames greedy partners for crazy hours, but the irony is that the people at the top are often as unhappy and overworked as those at the bottom: it is a system that serves almost no one. Moreover, our many improvements in the technologies of productivity make the arms-race problem worse. The fact that employees are now always reachable eliminates what was once a natural barrier of sorts, the idea that work was something that happened during office hours or at the physical office. With no limits, work becomes like a football game where the whistle is never blown.”

We may not like what we’re doing — see, e.g., this Above the Law blog post re:  Prof. Wu’s article — but we do it anyway. Why?

Barry Goldman, arbitrator, mediator, and author of The Science of Settlement: Ideas for Negotiators, cites a psychological trait cognitive scientists call “sphexishness” to explain our stubbornness. You can read about it in this LA Times op-ed piece.

Sphexishness? Maybe. Or maybe unhappiness and a show me the money mentality are embedded in the larger context of American workplace culture. The following is from a Pyschology Today article called “Counterproductive Productivity,” by marketing professor Raj Raghuna:

“I don’t know about you, but it seems that the average American doesn’t really enjoy work. If the reason we work harder is because we enjoy our work, then most of us would be happy to go back to work, and we would have restaurants that are called TGIM (Thank Goodness It’s Monday) and not TGIF (Thank Goodness It’s Friday).

“No, we don’t work harder because we enjoy our work. Rather, we work harder so that we can earn more money, and so that we can feel, at some level, more important and more successful… And once we get on that gravy train, it’s difficult to get off it.”

Whatever the cause, we seem to have a problem here, Houston, and next time we’ll look at yet another reason why we avoid addressing it.

The Culture of Law (10): Don’t Show Me The Money

It’s not the legal profession’s fault that you can make good money at it. The problem is when we use that as an excuse for personal powerlessness.

Personal powerlessness is when we buy into Sit Down You’re Rockin’ the Boat as a cultural and personal norm that can’t be challenged. We think that way because our brains are running on established cultural neural pathways. There are other options out there, but pursuing them will cost our brains their cherished peace of mind.

We don’t need a research survey to tell us there are other ways to measure value than money, but consider this one anyway:

“Money and prestige aren’t key to career satisfaction, according to findings from a multiyear survey of University of Michigan law grads. Instead, work satisfaction is more closely related to the law grads’ perceptions of the social value of their work and the quality of their relations with co-workers and superiors.”

If you’re willing to try something other than money and prestige, how about…

A Utah lawyer starts a flourishing non-profit law firm, where clients pay based on income.

Or this New York Times story about lawyers who have chosen less remunerative law careers:

“Of the many rewards associated with becoming a lawyer — wealth, status, stimulating work — day-to-day happiness has never been high on the list. Perhaps, a new study suggests, that is because lawyers and law students are focusing on the wrong rewards.

“Researchers who surveyed 6,200 lawyers about their jobs and health found that the factors most frequently associated with success in the legal field, such as high income or a partner-track job at a prestigious firm, had almost zero correlation with happiness and well-being.

“However, lawyers in public-service jobs who made the least money, like public defenders or Legal Aid attorneys, were most likely to report being happy.

“Lawyers in public service jobs also drank less alcohol than their higher-income peers. And, despite the large gap in affluence, the two groups reported about equal overall satisfaction with their lives.”

Some lawyers went straight to these alternatives out of law school, others got there by exiting private practice. That path isn’t for everybody, but if you’re looking for a different option than show me the money, why not? While you’re thinking about it, consider this BigLaw partner’s case against being too enamored with the prospect of making money in the law:

“Becoming a lawyer is a great way to improve your standard of living if you come from a family of poors who thinks rich people “worked for every penny they had.” But if you are a lawyer, your income is pretty much restricted to how many hours you can work in a day. That’s no way to live.”

(“A family of poors”? Hmmm. Never heard that one before.)

Lawyers who opt for greater satisfaction for less pay are bucking a cultural norm that measures value in terms of money, which is in turn a function of hours worked — another cultural value standard. They’ve probably had their epiphanies and are on the Jerry Maguire path, and yes, as we saw last time, they will suffer for it.

And so will those close to them, as we’ll see next time.

The Culture of Law (9): Show Me The Money!

If you saw the movie Jerry Maguire, you remember the show me the money scene. Jerry has a moral epiphany, writes a middle-of-the-night manifesto, and hits the send button. He’s greeted at the office with a rousing ovation… as one colleague asks another, “How long do you give him?” His manifesto broke with the cultural status quo; he has to go. He gets fired of course, and now he’s dialing for dollars. He takes only one client with him, at the cost of everything he just gained from his awakening.

It’s funny, and if you’ve been there, painful.

I had my own show me the money moment my first day back in the office after taking the bar exam. My wife and I had escaped for 3½ weeks in the Scottish highlands and islands. The silent remoteness and stark natural beauty were disorienting at first, but in time we settled into it and returned home resolute about creating a more enriching lifestyle.

We flew back on a Saturday. On Monday morning I biked into work early, stopping to take photos of the downtown skyline and the Cathedral Basilica in the red light of the rising sun. At the office, the corporate department was in the middle of a merger on a fast track. I worked until 11:00 that night; I was the first to leave.

Welcome back. Epiphanies are nice, but duty calls. There are clients to serve and paychecks to earn. Culture wins again.

There were more epiphanies and more show me the money moments over the course of my career. I’m far from alone in that. At my CLE workshops on career and personal satisfaction, someone always brings up money. “I’m not happy,” they’ll say, “But the money is good, so I can’t change.”

Notice what just happened:  they took a cultural reality — the ability to earn a good paycheck practicing law — and turned it into a rationale for personal powerlessness — an attitude that derives from the cultural norm of resisting change we looked at earlier in this series. We saw this attitude at work in our midst a couple years back, when two-thirds of the respondents to a Colorado lawyer salary and career satisfaction survey wouldn’t recommend their jobs to someone else, but meanwhile the money was good, and 40% felt financially constrained from considering other options.

Yes you can change, I reply, but you will suffer. That’s not a challenge to dig deep or rise above, it’s a recognition of how hard it is to change our neurological cultural wiring.(See this Huffington Post video re: the difference between pain and suffering.)

Jerry Maguire suffered to get back what he gave up in his show me the money moment. We will, too. Epiphanies exact a price; we have to pay it. And one of the ways we pay is with money.

If we’re going to have epiphanies, we must deal with “show me the money.”

That doesn’t necessarily mean less money. It wasn’t that way for me in my law practice, or for most of the people I know who’ve made the break to a new law culture. Next time, we’ll look at lawyers who’ve deliberately opted for career and personal satisfaction over money. Not everyone will make that choice, but reconfiguring our relationship with money — one way or another — is a necessary stage along on the path to changing our personal response to dominant law culture.

At least we’ll be in good company. A reporter asked Rohan Dennis, winner of this summer’s USA Pro Challenge cycling race in Colorado, how he’s had such a great year. “You have to learn to suffer,” he said.

‘til next time….

 

The Culture of Law (8): Bleak House and Epigenetics (Really!)

We looked last time at the slow pace and uncertain outcome of evolutionary cultural change. Just how slow is slow? How about no fundamental cultural change in the past 160 years? I’d say that’s pretty slow.

Law professor Benjamin H. Barton opens his recent book Glass Half Full:  The Decline and Rebirth of the Legal Profession with these observations:

“Charles Dickens wrote Bleak House as a serial in the 1850s and published it as a single volume in 1853. It is a blistering assessment of the English Chancery system and remains one of the most trenchant critiques of the common law system.

“Given the bewildering series of technological and societal changes over the last 160 years, there is something remarkable about Dickens’s portrait of lawyers in Bleak House:  it is utterly familiar to a modern reader.

“Bleak House portrays a legal profession little changed from then to now. Dickens describes lawyers meeting in person with clients, or drafting papers, or investigating their cases. English lawyers in 1850 practiced an individualized and bespoke professional service that consisted of paying a lawyer for his time, sometimes in court, sometimes in consultation, sometimes in drafting documents or conducting research.”

If we want change faster than cultural evolution can give it to us, we might try analogizing to another scientific concept:  epigenetics. David Perlmutter, neurologist and author of bestsellers Brain Maker and Grain Brain, describes epigenetics this way:

“Even though genes encoded by DNA are essentially static (barring the occurrence of mutation), the expression of those genes can be highly dynamic in response to environmental influences. This field of study, called epigenetics, is now one of the hottest areas of research.

“There are likely many windows during one’s lifetime when we are sensitive to environmental impacts.

“Epigenetics, defined more technically, is the study of sections of your DNA (called “marks” or “markers”) that essentially tell your genes when and how strongly to express themselves.

“[O]ur day-to-day lifestyle choices have a big effect on our biology and even the activity of our genes.

“Now that we have evidence to suggest that food, stress, exercise, sleep… affect which of our genes are activated and which remain suppressed, we can take some degree of control in all of these realms.”

Epigenetics explains why your kids aren’t like you. They have your DNA, but the choices they make in their contemporary cultural context alternately activate or shut down certain aspects of their genetic coding. No paternity test needed; they’re your kids alright, they’ve just been practicing epigenetics.

By analogy, law students and lawyers who are “sensitive to environmental impacts” — either because their brains are still developing while they’re in law school or because they’re committed to cultural change — have the ability to turn off their Bleak House cultural coding and embrace something new.

And get this:  radical cultural shift doesn’t have to be driven only by technology, which was behind much of the change we looked at in the Future of Law series earlier this year. Instead, cultural change can be driven by “day-to-day lifestyle choices” involving things like “food, stress, exercise, sleep.” Think about that for a minute:  lawyers committed to self-care could turn the whole institution and enterprise of law into a place of brand new vibrancy, creativity, and wellbeing.

That’s not pie-in-the-sky, that’s epigenetics.

In the next couple installments, we’ll look at a topic where lawyers routinely choose historical cultural DNA over epigenetic change:  their paychecks.

Intrigued by epigenetics?  Here’s an entertaining video on the basics. And here’s an overview.

The Culture of Law (7): Cultural Evolution: Sweating the Small Stuff

Our Future of Law series earlier this year looked at internal and external trends creating pressure for change in the legal profession. But really… the law has been around for millennia; changes move through it glacially. Can’t we just let things work themselves out in due time?

Sure, of course. Culture is formed in the brain; it evolves there as well. Cultural evolution brings change slowly, eventually, and inevitably. There’s just one problem:   evolution of any kind doesn’t work from a blueprint and doesn’t sweat the small stuff, so you never know where it’s going.

This is from The Organized Mind, by Daniel J. Levitin, Ph.D., Professor of Psychology and Behavioral Neuroscience, McGill University:

“The evolved architecture of the brain is haphazard and disjointed, and incorporates multiple systems, each of which has a mind of its own (so to speak). Evolution doesn’t design things and it doesn’t build systems– it settles on systems that, historically, conveyed a survival benefit (and if a better way comes along, it will adopt that).  There is no overarching grand planner engineering the systems so that they work harmoniously together. The brain is more like a big, old house with piecemeal renovations done on every floor, and less like new construction.”

As a result, Gary Hatfield, Dept of Philosophy, University of Pennsylvania, writing in the introduction to Evolution of Mind, Brain, and Culture, warns that cultural evolution’s adaptive walk might take us places contrary to our own best interests:

“Cultural evolution can yield significant change in behavior in the absence of biological evolution… Such changes need not be biologically adaptive; as a result, fads, fashions, or random variation, attitudes and behaviors may spread through a population that either have no effect on survival or that actually reduce the fitness of the members of a population.”

(Hmmm, did someone just say “billable hour”? Just couldn’t resist….)

If we’d prefer something other than an unpredictable evolutionary walk to potential self-destruction, we need to get proactive. Again from Dr. Levitin:

“A key to understanding the organized mind is to recognize that on its own, it doesn’t organize things the way you might want it to. It comes preconfigured, and although it has enormous flexibility , it is built on a system that evolved over hundreds of thousands of years to deal with different  kinds and different amounts of information that we have today.

“It’s helpful to understand that our modes of thinking and decision-making evolved over the tens of thousands of years that humans lived as hunter-gatherers. Our genes haven’t fully caught up with the demands of modern civilization, but fortunately human knowledge has — we now better understand how to overcome evolutionary limitations.

“This is the story of how humans have coped with information and organization from the beginning of civilization. It’s also the story of how the most successful members of society — from successful artists, athletes, and warriors, to business executives and highly credentialed professionals– have learned to maximize their creativity, and efficiency, by organizing their lives so that they spend less time on the mundane, and more time on the inspiring, comforting, and rewarding things of life.”

Let’s see…

  • The most successful members of society,
  • [including] highly credentialed professionals [such as lawyers],
  • maximizing creativity and efficiency,
  • spending less time on the mundane,
  • and more time on the inspiring, comforting, and rewarding things of life….

That’s the rationale for making the effort to overcome the limitations of evolutionary cultural change.

Anybody up for it?

The Culture of Law (6): Sit Down You’re Rockin’ the Boat

We’re been talking about how culture derives from a neurological structure created in the brains of the culture’s individual members at impressionable times. Individual brain wiring is transmitted by agreement from member to member, and reinforced by experience. Culture thus neurologically shaped is maintained by the brain’s need for concordance between expectations and experience. This creates a shared cultural belief system that characterizes how the members engage with the world.

This post looks further into the term “belief system.” I Googled it, and the following was one of the more instructive, albeit denser hits:

“Belief systems are structures of norms that are interrelated and that vary mainly in the degree in which they are systemic. What is systemic in the Belief System is the interrelation between several beliefs. What features warrant calling this stored body of concepts a belief system? Belief systems are the stories we tell ourselves to define our personal sense of Reality. Every human being has a belief system that they utilize, and it is through this mechanism that we individually “make sense” of the world around us.”

A culture’s members adopt its belief system not merely as their “personal sense of Reality,” but as a shared belief in how things really are. I.e., the culture’s members don’t just believe similar things about how the world works, they also believe in their beliefs, holding them as their common perceptual and behavioral code.

What happens when a culture’s belief system is threatened, either from within or by outside pressure?

We met Bruce E. Wexler, professor of psychiatry at Yale Medical School, and his book, Brain and Culture:  Neurobiology, Ideology, and Social Change a couple posts back. He’s the guy who talked about “The importance of a close fit between internal neuropsychological structures created to conform with an individual’s sensory and interpersonal environment at the time of development, and the environment in which the adult individual later finds him or herself.”

Wexler uses his brain-based cultural approach to explain intercultural conflict this way:  “This book argues that differences in belief systems can themselves occasion intercultural violence, since concordance between internal structure and external reality is a fundamental human neurobiological imperative.”

I.e., a culture resists change because its shared brain wiring is guarding its neurological peace of mind.

Wexler’s analysis also applies to intracultural conflict. And, as he further points out, ultimately the battle over culture is about whose brain wiring gets to make the rules:

“This argument thus provides a rational basis for the apparent fact that people fight not because of differences in religion and other beliefs; they fight to control the opportunity to create external structures that fit with their internal structures, and to prevent others from filling their environment with structures and stimulation that conflict with their internal structures.”

All of which explains why “Sit Down You’re Rockin’ the Boat” — i.e., resistance to cultural change — is always an implied cultural norm. Challenges to a culture’s belief system are always perceived as a case of,

“The devil will drag you under by the sharp lapels of your checkered coat,

“So sit down, sit down, sit down you’re rockin’ the boat!”

We’ll be talking more about rocking the cultural boat. In the meantime, take a couple minutes to give yourself a treat and watch the video. It’s short, from Guys and Dolls.

The Culture of Law (5): Culture by Agreement

We’ve seen that culture is a matter of individual brain patterning. But how is culture transmitted from one brain to another, so that all brains in a culture have the same wiring?

It begins with a shared experience of cultural formation, which we’ve looked at. After that, culture is reinforced by agreement. Agreement about what? A state of mind.

The following is from an article by Philip G. Chase, former Senior Research Scientist and Consulting Scholar at the University of Pennsylvania, in a collection of scholarly articles entitled Evolution of Mind, Brain, and Culture.

“Because mental states cannot be transferred physically, they must be transferred by being re-created in the mind of the receiving individual.

“[W]hat is transmitted is some state of mind that produces behavior.

“[The transmitted state of mind includes] a myriad of… beliefs, values, desires, definitions, attitudes, and emotional states such as fear, regret, or pride.”

Law students entering law practice observe lawyers thinking and behaving in ways that characterize law culture — that make it recognizable as such to both members and non-members. Through observation and imitation, they become habituated into cultural norms of thinking and acting, forging implicit agreements about law culture which are reinforced through ongoing experience. In time, they become recognizable as lawyers even when they’re not lawyering. It’s a mindset:  “once a lawyer, always a lawyer.”

The same is true of other professional cultures. Think of accountants, engineers, physicians. Meet one, and you can just tell.

John R. Searle, Professor of Philosophy, University of California, Berkeley, has made a career of deconstructing  about these cultural agreements, beginning with his landmark book The Construction of Social Reality, where he framed his inquiry this way:

“This book is about a problem that has puzzled me for a long time:  there are portions of the real world, objective facts in the world that are only facts by human agreement. In a sense there are things that exist only because we believe them to exist. I am thinking about things like money, property, governments, and marriage.

“If everybody thinks that this sort of thing is money, and they use it as money and treat it as money, then it is money. If nobody ever thinks this sort of thing is money, then it is not money. And what goes for money goes for elections, private property, wars, voting, promises, marriages, buying and selling, political offices, and so on.”

“How can there be an objective world of money, property, marriage, governments, elections, football games, cocktail parties and law courts in a world that consists entirely of physical particles in fields of force, and in which some of these particles are organized into systems that are conscious biological beasts, such as ourselves?”

Professional culture is not monolithic. In every profession, the cats resist herding. Members of the culture practice some cultural agreements more than others, according to personal preference. We’re not all in the same place on the cultural bell curve. Yet there is undeniably an identifiable mindset that characterizes the culture, and a general consensus about what that mindset is, even if you believe yourself to be an exception. (I have asked workshop participants about this for years, and the list of what characterizes law culture is always the same. You can write it up for yourself, right now, if you like.)

The seeds of cultural change lie in the tension between the general consensus and individual self-perception. More on that coming up.

For a taste of what I mean by cultural norms that make law culture “recognizable as such to both members and non-members,” check out these recent blog posts on “admirable” and “distasteful” lawyer mindsets and behaviors.