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.

The Culture of Law (4): Changing Our Default Cultural Setting

“We cannot solve problems by using the same kind of thinking
we used when we created them.”

Einstein

Let’s start this week by revisiting the premise of this series:  “The law of the future requires the law culture of the future. Culture is the context in which the future will occur. If we understand what culture is and where it comes from, we can most effectively shape both the law and its future… if we choose to do so.”

Key words:  If we choose to do so. We might not. Let’s look at what’s going on in our heads one way or the other.

As we saw last time, our brains are patterned with our cultural expectations through the creation of new brain cells (neurons) and new brain wiring (neural pathways).

When we resist cultural change, judge new developments as “bad,” insist the old ways were better, we think we’re making a reasoned assessment of the pros and cons of old vs. new, and we’re convinced our assessment is correct. Maybe so, but the neurobiological reality is that our brains are encountering a new cultural model that won’t run on their existing neurons and neural pathways. Turns out we’re not saving the citadel from the invading hordes, we’re experiencing a brain reality:  hormones secreting and electrical charges firing within our skulls.

Kinda puts the kibosh on the righteousness indignation, doesn’t it?

When we promote cultural change, our brains need to generate new neurons (a process called neurogenesis) and lay down new neural pathways (a process called neuroplasticity). Once in place, this new neurological infrastructure will support the change we want.

Until our brains are rewired to the point where they can find and maintain the internal-external brain concordance Dr. Wexler talked about (see last time), we will continuously revert to our old cultural patterning. This is why we can leave a firm to set up a solo or small firm practice, or launch ourselves on a mission to reform law education. or whatever our focus of change might be, only to wake up one day to find ourselves back in the same culture where we started. We revert and self-sabotage because our brains weren’t rewired to support the change we wanted.

We begin the process of deliberate change with an awareness of what our default cultural setting already is, as patterned into us during law school and our early practice years. I previously quoted Simon D’Arcy of Next Level Culture. Here he is again:  “You cannot change what you cannot accept. Creating a thriving team and workplace culture starts with revealing, acknowledging and embracing your default culture.”

To know where we’re going, we first need to know where we are, which means the cultural beliefs and behaviors, assumptions and expectations currently patterned in our brains. Finding out is an essential exercises in honesty, and honesty requires reflection.

We think we don’t have time for reflection. We want results.

We’ll get results if we take time for reflection.

New culture means new thoughts and behaviors. We won’t have either if our brains haven’t been rewired to accommodate them.  We won’t get anywhere unless we first understand where we are now. And we won’t gain that understanding unless we step back and reflect about it.

That is the inside-out game of cultural change.

The Culture of Law (3): Brainwashed

This is from Wikipedia, on cultural neuroscience:  “Similar to other interdisciplinary fields such as social neuroscience, cognitive neuroscience, affective neuroscience, and neuroanthropology, cultural neuroscience aims to explain a given mental phenomenon in terms of a synergistic product of mental, neural and genetic events.”

Heady stuff — quite literally. In this series, we’ll look at all those factors — mental, neural, and genetics.

I know… but stay with me here….

In his landmark book, Brain and Culture:  Neurobiology, Ideology, and Social Change, professor of psychiatry at Yale Medical School Bruce E. Wexler declared that “concordance between internal structure and external reality is a fundamental human neurobiological imperative.”

That  “concordance” he speaks of is the peace of mind we’ve been talking about. It’s a brain necessity: our brains work on culture all the time. They do this mostly undisturbed most of the time, but not always. There are particularly intense formative periods of our lives when our brains are particular alive to shifting their cultural points of view.

Dr. Wexler speaks of “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.” (My emphasis.) Those “times of development” are the key to cultural creation.

Not surprisingly, one of those times is adolescence, which from a brain point of view lasts until age 25 – 27. New cultural possibilities abound when we come of age, and we make choices from the cultural contexts we are exposed to during that time, literally activating and de-activating genes as we do so. (Which explains why our kids aren’t like us.) Then, during our adult lives, our brains and our external lives settle into creating concordance with our adolescent cultural choices.

That’s exactly what happens to our brains when we enter the legal profession. Think about it:  many law students are under 25-27; nothing personal, but their brains aren’t all there yet. What’s especially missing are the portions that govern learning and sound judgment. (This explains why older law students experience law school differently than students right out of college — something you probably noticed if you were an older student yourself, but probably didn’t if you weren’t.) Add the stress of law school to normal adolescent brain development, and you’ve got culture formation on steroids.

Although older law students have organically mature brains, stress pulls them into a comparable state of adolescent-like brain patterning, in a process comparable to what happens during boot camp. A former Marine Corps drill sergeant told me how they “greeted” new recruits, stomping into their barracks at 3:00 a.m., shouting and cracking whips. “We had to do that,” he said, “Otherwise they weren’t going to survive boot camp, let alone the kind of combat we send them into.” Once they’d been torn down, the newly malleable recruits were built back up — thoroughly enculturated into the Marine way.

Like them, law students younger and older enter law practice (the equivalent of Wexler’s “environment in which the adult individual later finds him or herself”)  with brains primed to reinforce the cultural choices we made in that stressful context.

We lawyers were brainwashed, all of us. No kidding.

For a user-friendly analysis of adolescent brain development, see Change Your Brain Change Your Life Before 25, by Jesse Payne. Jesse is the son-in-law of celebrity psychiatrist Dr. Daniel Amen. His courtship of Dr. Amen’s daughter required a brain scan conducted by his famous future father-in-law.

The Culture of Law (2): It’s an Inside Job

We tend to think of culture as something external to ourselves — as something out there, set in motion and maintained by the cumulative energy of all those other people we live and work with.

Not so. Culture is not out there somewhere; it’s right here inside us — in our brains, to be precise. Culture isn’t about what everybody else is doing, it’s about our own brain cells (neurons) and the ways they’re linked together (neural pathways), plus all the hormones and electrical charges that keep the brain system running. Culture, in other words, is ultimately a personal biological and neurological reality — an inside job.

In a blog series a couple years ago, I likened law culture to another biological concept:

“Biologist Rupert Sheldrake posits the existence of ‘morphic fields.’

“A morphic field is the controlling energy field of a biological entity – either an individual or collective system. The field is made up of both organic and psychological elements. The field is invisible, but its impact is observable. For example, both genetics (organic) and individual and collective conscious and unconscious factors (psychological) invisibly affect our behavior.

“When we enter the legal profession, we enter its morphic field. Lawyers work in the field of law – get it?  There are certain expectations, dynamics, outlooks, disciplines, judgments, commonly accepted wisdom, urban legends, etc. that come with the territory of being a lawyer.

“In law school, we allowed our psyches to be affected by those things – we learned to ‘think like a lawyer.’ Our neural pathways were literally rewired, our consciousness was altered, and our physiology was affected as well, so that we were biologically and chemically different beings when we graduated than we were when we started. No kidding. This brain- and body-retraining process continued when we went to work.”

I didn’t know it at the time, but I was describing neurological cultural patterning. No, I’m not making this stuff up, and this series will look more deeply at how all this happens. But now, as we’re getting started, it’s useful to note several very practical implications all this has for lawyer personal wellbeing and career satisfaction. Here’s the short list:

  • As we saw last time, brain-originated culture is ultimately about promoting peace of mind — what one prominent brain researcher calls “concordance.” We have an innate biological need for an ongoing, functional match between how things work in our cultural context and our personal needs and expectations.
  • The culture of law as it existed when we entered the profession becomes our default cultural setting. Our brains, in their pursuit of concordance, continuously seek to reinforce that default culture and conform our experience to it.
  • The trouble is, as much as our brains would like the default to stay in place, the external world is always changing, which stresses our neurological peace, which in turn stresses our personal wellbeing and professional performance.
  • If we want to change our experience of the culture of law to promote concordance, we need to get to that default brain cultural setting and change it, and keep doing so as new stressors arise. To do that, we need to consciously support our brain in developing new neurons and new neural pathways. No kidding.

Coming up, we’ll look at how law culture is shaped in lawyers’ brains, and how our brains keep our default cultural setting in place unless and until we actively exert our power to change it.

The Culture of Law (1): Peace of Mind

“The best way to predict the future is to create it.”

Dennis Gabor, Nobel Prize Winner in Physics

Since the first of the year, we’ve been talking about the future of law. We’ve seen how the practice of law is undergoing a massive paradigm shift, mostly driven by technology, entrepreneurship, and worldwide trends such as democratization and commoditization. We’ve looked at how these forces are changing law practice and lawyers, and we’ve speculated about how all this will ultimately change the law itself.

We’ve seen that the future of law isn’t out there somewhere, waiting to descend on us, but that paradigms shift if and when we embrace them, and that the new normal of the future is ours to shape and own to the extent we choose to engage with it. We can make the future happen, or we can let it happen to us. The former is challenging but rewarding; the latter is a quick trip to curmudgeon status.

I.e., we’ve seen the future, and it is us. Which is why it’s time to talk about the culture of law. The law of the future requires the law culture of the future. Culture is the context in which the future will occur. If we understand what culture is and where it comes from, we can most effectively shape both the law and its future — again, if we choose to do so.

Why would we want to? For our own peace of mind, for one thing. Quite literally. As we’ll see, culture is a brain thing. Culture takes shape in our brains, our brains then shape our minds, our minds shape our behavior, and — voilà! — culture happens. When we’re out of sync with this process, the result is disruption and dissonance in our brains. We become cognitively impaired in a profession that requires all the cognition we can give it.

Peace of mind isn’t a luxury, it’s enlightened self-interest. Cognitive wellness thrives on it. We need it to think, learn, analyze, decide, make sound judgments. We need it to be ethically competent. Successfully engaging with change instead of avoiding and resisting it brings emotional clearing and cognitive clarity, provides a still point from which to view a world apparently spinning out of control. It’s an essential trait of “supersurvivors” — something I’ll talk about in a short series later this summer.

We’ll tend to our peace of mind if we know what’s good for us, and we  usually do.

Before we go on, we need a working definition of “culture.” We’re familiar with the notion of company or firm culture. This is from Simon D’Arcy, founder of Next Level Culture:

“Think of a culture code as the DNA of an organization, carrying within it a code that defines the character and proficiency of the entire organism. Instead of physical traits, tendencies and aptitudes, it influences how people behave with each other, shaping how they work together as well as the results they produce.”

He’s speaking of organizational culture, which we find in individual firms. Expand that idea to the collective, over-arching culture of the profession within which all those individual firms operate, and now you’re at the level of culture we’re talking about in this series.

Culture on this level isn’t just for BigBox and BigLaw, and it’s not about firm outings and casual Fridays. It’s The X Factor — the difference between creating and sustaining the future we envision vs. waking up one day to just another unfulfilling status quo.

Starting next time, we’ll look at how culture is created from the inside out.