The Anti-Motivation Strategy (Part 4):  Why You Should Never Hire a Motivated Lawyer

aw schools and law firms kill brain cells, impairing the highly-motivated high achievers who populate them from doing what they’re required to do, which is to think clearly and make sound judgments, and in the meantime banishing law students and lawyers to unhappiness and maybe an early grave.

Employee-Motivation resized

Why not? Because there’s a good chance that motivated lawyer is cognitively impaired.

In a series in Fall 2014, I looked in depth at the research of University of Denver law professor Debra S. Austin, J.D., Ph.D., and her seminal law review article Killing Them Softly:  Neuroscience Reveals How Brain Cells Die From Law School Stress And How Neural Self-Hacking Can Optimize Cognitive Performance. Prof. Austin’s research findings line up with the Mayo Clinic’s analysis we looked at last time:

“Neuroscience shows that the aggregate educative effects of training to become a lawyer under chronically stressful conditions may undermine the efforts of legal educators by weakening the learning capacities of law students. Stress in legal education may also set the stage for abnormally high rates of anxiety and depression among lawyers.

“The stresses facing law students and lawyers result in a significant decline in their well-being, including anxiety, panic attacks, depression, substance abuse, and suicide. Neuroscience now shows that this level of stress also diminishes cognitive capacity. The intricate workings of the brain, the ways in which memories become part of a lawyer’s body of knowledge, and the impact of emotion on this process indicate that stress can weaken or kill brain cells needed for cognition.

“When stress persists for a few hours or days, a law student may experience a bad mood. Longer-term stress can cause stress-related disorders such as panic attacks, anxiety, or depression; the physical effects include increased blood pressure, heart palpitations, breathlessness, dizziness, irritability, chest pain, abdominal discomfort, sweating, chills, or increased muscle tension.

“Long-term elevated levels of glucocorticoids resulting from chronic stress have been associated with the following physical conditions:

  • Impaired immune response;
  • Increased appetite and food cravings;
  • Increased body fat;
  • Increased symptoms of PMS and menopause;
  • Decreased muscle mass;
  • Decreased bone density; and
  • Decreased libido.

“Chronic stress also produces the following emotional conditions:

  • Increased mood swings, irritability, and anger;
  • Increased anxiety; and
  • Increased depression.

“The impact of stress on law student cognition includes deterioration in memory, concentration, problem-solving, math performance, and language processing. Curiosity is dampened, and creativity is diminished.”

In other words, law schools and law firms kill brain cells, impairing the highly-motivated high achievers who populate them from doing what they’re required to do, which is to think clearly and make sound judgments, and in the meantime banishing law students and lawyers to unhappiness and maybe an early grave.

Law schools and law firms don’t have to disclose all that.
Maybe they should.

ivy league admissions tours

Time For an Anti-Motivation Strategy

By now the flaw in the typical motivation strategy is evident:  motivation becomes its own loop, circles back on itself, becomes its own focus, its own end game. We’re no longer practicing motivation with a performance goal in mind, we’re practicing it for its own sake. Motivation becomes a short-term, stressful preoccupation that hampers sustainable long-term performance. In the meantime, we become tentative, uncertain, indecisive, and unfocused, which means our performance becomes tenuous, weak, and unreliable.

There’s got to be a better way. There is, and we’ll look at it, starting next time.

The Future of Law (24): The Future Couldn’t Wait (Finale)

Question:  What do mindfulness and meditation, hackers, crowdfunding, a law school offering masters degrees for non-lawyers, and techno-speak all have in common?

Answer #!:  They’re all the future of law.

Answer #2:  And that future is already here.

Mindfulness and Meditation must be all the rage when The Wall Street Journal features Lawyers Go Zen, With Few Objections. Check this trend out for yourself next week at the Better Lawyering Through Mindfulness Workshop with bankruptcy lawyer Jeena Cho, who’s quoted in the WSJ article and is on a national tour promoting her book The Anxious Lawyer:  An 8-Week Guide to a Happier, Saner Law Practice Using Meditation.

Hacker Law.  Legalhackers.org proclaims, “We are explorers. We are doers. We are Legal Hackers.” Legal hacking, it says, is “a global movement of lawyers, policymakers, technologists, and academics who… spot issues and opportunities where technology can improve and inform the practice of law.” Here’s how one legal hacker pursues justice. And, in the interests of equal time, here’s a skeptic’s take on the topic.

Crowdfunding Lawsuits.  It’s not just about raising money to hire a lawyer, it’s about equal justice for all. CrowdJustice is on a mission to “make justice accessible.” “Sometimes petitions are not enough,” its website declares, “The law should be available to everyone, big and small. CrowdJustice gives you the tools to raise funds, mobilise your community and publicise your issue.” (Yes, they’re British.) LexShares is “revolutionizing access to the justice system” while giving you the chance to do well by doing good:  you can “earn a return from litigation finance” by taking a piece of the judgment/settlement.

Legal Mastery for Non-Lawyers.  This Los Angeles Times article from last month describes a new masters degree program:

“’Everyday business and regulatory transactions are becoming increasingly complex,” said Sean M. Scott, senior associate dean at Loyola Law School, Los Angeles. “That is particularly true in Los Angeles, where the areas of technology, entertainment, healthcare and policing face new legal challenges.’

“The new Master of Science in Legal Studies (MLS) is designed for those who want to improve their legal fluency in areas related to industry regulations, compliance, deal making and more without committing to three or four years of law school. ‘The goal is to provide legal literacy,’ Scott said.

“Loyola is uniquely poised to pivot its JD offerings to a new audience because of its nimble culture. Students may design their own program, pursuing a course of study such as healthcare law or fashion law with classes selected from a wide array of law school course offerings.”

Pivoting and nimbleness are key entrepreneurial concepts, and Loyola takes them to heart:  i.e., students can benefit from the kind of narrow mylaw.com focus they’ll be able to give their business clients of choice. And the best part is, they’ll learn without suffering the brain-numbing stresses of law school.

Techno-Speak:  “Our technology infrastructure … features multi-homed, fully redundant connectivity and power management controls, providing superior physical and electronic security for your data. Our scalable compute power, architected by industry technology experts, is built on high-performance, high-availability systems. Fully redundant servers, enterprise-class storage, and market-leading infrastructure monitoring and management solutions ensure the integrity, security, and responsiveness of your data.”

Um… that’s a good thing, right?

That bit of garble is from this ediscovery company’s website. Let new lawyers learn the litigation ropes by grinding through discovery? No. Call in the data pros instead. They have an office right here in Denver, as some of you know already.

Okay, we get the point:  anything we can possibly imagine about the future of law is already happening. Can we move on? Yes, of course. Our next series will take a fresh look at the culture of law.

The Future of Law (18): How long before the future gets here? Cont’d.

“A new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it.”

Max Planck, founder of quantum theory,
in his Scientific Autobiography and Other Papers

Max Planck’s comment is right in line with what we learned last time from physicist Thomas Kuhn’s seminal work The Structure of Scientific Revolutions about how paradigm shifts come to be adopted. Kuhn also speculated that it takes a full generation for a paradigm to shift.

How long is a generation?  This blog post from biological anthropologist Greg Laden provides a pithy answer:

“Short Answer: 25 years, but a generation ago it was 20 years.
“Long answer: It depends on what you mean by generation.”

(The post continues with an entertaining and informative commentary. It’s short, and worth a read.)

If these three scientists are correct, then the trends we’ve been looking at in this series will take another 20-25 years to become the law’s “new normal.” That can make us feel either impatient or complacent, but before we get too settled in our position, we might keep in mind the lessons of this year end 2010 New York Times article that points out that we often envision the new normal by extrapolating from the recent past, which makes for a lousy planning strategy. Why? Because we don’t take into account a simple, game-changing factor:

The element of surprise.

Many of the predictions made in this series are surprising, to be sure, but even more surprising is that these things are already happening but many of us just aren’t seeing them. Why not? Because our brains literally can’t take them in.

In this post at the end of 2014, we looked at research from the emerging field of cultural neurology that suggests our brains’ observation and cognitive faculties are so linked to our cultural context that we simply can’t see paradigm shifts when they happen. Our cultural bias blinds us. We’re caught in The Emperor’s New Clothes syndrome.

Who can see the shift? The new generation. By the time the new paradigm’s “opponents eventually die, and a new generation grows up that is familiar with it,” the paradigm we can’t see now will be the only one the new generation has ever known.

And just to make things a bit more complex, as we’ve also seen before, some trends don’t sustain their momentum, and some paradigms never shift for lack of a following. Which is why passivity doesn’t serve us in times of great change.

What’s the alternative? We can position ourselves to be surprise makers instead of surprise takers. We can grab the new paradigm and run with it, and in so doing help to shape it the way we’d like.

We’ll talk next time about how we can do that.

The Future of Law (15): Law By Algorithm

Google customizes the news you see. Amazon suggests if you like this, you might like that. Your cellphone carrier, bank, and pretty much everybody else you deal with on a regular basis gives you the option to customize your own account page.

  • The new commoditized/democratized purveyors of legal products will also give this option to consumers. The days of “mylaw.com” are upon us.

Welcome to law by algorithm:  artificial Intelligence at work, serving up the customized law you need personally and for your work and business. And you don’t have to go looking for it — it will come to you automatically, based on your preference settings and past choices.

  • Law by algorithm will enable consumers to self-diagnose legal issues and access legal “remedies” for what ails them.
  • We’ll also see online diagnostic networks geared for legal professionals only — similar to those that already exist for physicians.

Think WebMD. And yes, we will see WebJD — someone is already working on it. Also check out A2J Author, sponsored by the Center for Access to Justice & Technology, a project of the Chicago-Kent School of Law. The Center’s purpose is “to make justice more accessible to the public by promoting the use of the Internet in the teaching, practice, and public access to the law.” And for a thoughtful introduction to online legal diagnosis, see this blog post by Stephanie Kimbro, MA, JD, a Fellow at Stanford Law School Center on the Legal Profession and Co-Director of the Center for Law Practice Technology. The post was written four years ago — an eternity in the tech world — but it’s still worth a read.

  • Law by algorithm will take us all the way to its extreme expression: to open source law.

For an introduction to this topic, see this Forbes review of open source as applied to the law. It was written in 2008 — again, ancient techno history. Seven years later, open source law is no longer mere speculation; we are already living in the Outer Limits (remember that show?) of this future legal reality.

We aren’t talking here about the law concerning open source software (like this and this). We’re talking about open source practice applied to the law itself. In his book The End of Lawyers, Richard Susskind describes open source law as sustained, online, mass collaboration re: the application and creation of the law, where content is user-generated, derived from public sources such as judicial and regulatory filings. Open source users engage with this data, extracting, analyzing, applying, and creating the law they need.

Thus open source law takes the creation of the law out of the exclusive hands of lawyers and the legal system as we have known it, and instead puts it into the hands of end-users, using artificial intelligence algorithms that incorporate the best of “thinking like a lawyer.” (Without, we might add, the risk that the lawyer doing the thinking might be suffering from stress-related cognitive impairment.)

Which takes us back to the topic we looked at last time:  the place of human legal experts in the future of law. We’ll look at that topic again next time, with a new twist.

[A few posts back, I noted legal futurist Richard Susskind’s opinion that commoditization would improve access to legal advice in the future, in what he termed the “latent legal market.” Would that include clients of moderate means? I think so. As an example, consider this resource I became aware of last week re: creating a virtual office to serve this market — yet another example of how technology is creating the new world of law.]

The Future of Law (Part Ten): Mindfulness Doesn’t Mean Wimpy Lawyers

Mindfulness is another trend driving change in the law. Here’s DU Law professor Debra Austin’s definition from her Killing Them Softly law review article:

“[M]indfulness is attention without labels, ideas, thoughts, or opinions.  Mindfulness means “being fully aware of something” and paying attention to the moment, with acceptance and without judgment or resistance.  It requires “emotion-introspection rather than cognitive self-reflection,” and specifically does not involve the analysis of thoughts or feelings.   Mindfulness is a form of self-understanding involving self-awareness rather than thinking.”

My CLE workshops don’t talk about or teach mindfulness, but they do require comparable reflection and self-awareness. Occasionally someone worries out loud that too much of this kind of thing will make you lose your edge, become less zealous as an advocate.

In other words, mindful lawyers are wimps.

I don’t know about you, but the most mindful people I know are rarely comfortable to be around. Penetrating, insightful, honest, no-nonsense, yes. Laid back and careless, no. The “mindfulness is for wimps” assessment no doubt comes from the Legal Borg, which has its own issues with fostering cognitively- or chemically-impaired lawyer brains, and never mind that there’s plenty of research and experience out there to support the notion that mindfulness provides a competitive advantage.

Judging from the strength of the mindfulness trend, this is another area in which the Legal Borg is losing its grip on the legal profession’s cultural ethos. An ABA Journal article last year announced that Mindfulness in Law Practice is Going Mainstream. As evidence of that, check out these resources:

Mindfulness in Law:  Articles, books, websites, exercises, with categories for bar associations, law schools, the judiciary, and lawyer groups.

The Mindful Lawyer:  More programs, resources, events, and articles, collected by lawyer and educator Scott Rogers, founder and director of the Institute for Mindfulness Studies, the University of Miami School of Law.

How will the mindfulness trend change the law?

  • We will see the emergence of new “best practices” that address and reverse areas of chronic dissatisfaction with the law among both lawyers and clients. For example, toxic stress and intentional destruction — both uncivil behavior toward other lawyers, and self-destructive lawyer responses to stress — will simply no longer be tolerated in the legal profession or the legal marketplace.
  • In their place, mindfulness practice will foster a new kind of “thinking like a lawyer” that will create new laws and legal procedures characterized by the kinds of benefits mindfulness produces in the individuals who practice it — e.g., decisiveness, clear thinking, intolerance for “brain noise” (drama, distraction, histrionics), and an uncanny awareness of invisible factors driving behavior.
  • As the law takes on the characteristics of mindfulness practice, the result will be more self-appraising, self-guiding, and self-correcting pathways to legal end results. The result will be more efficient and satisfying legal options and outcomes.
  • A new equity system — maybe formal, certainly informal — will arise in which the process of getting to results through informed collaboration will be valued, encouraged, and enforced.

Next in our excursion into futurology, we’ll look at the increasing polarization of three divergent pathways in legal practice and the law:  commoditizing, expertise, and mastery.

The Future of Law (Part 1): Beyond the Borg

Follow this link for a collection of my past three years of blog posts. It’s a FREE download!

We finished last year talking about the law profession’s cultural ethos, and how new practice models and wellness initiatives are liberating lawyers from its harmful aspects (the Legal Borg). An earlier 2014 series also looked at alternative practice models. Another considered how the law’s cultural ethos can cause stress-induced cognitive impairment and how mindfulness practice can help.

These developments may have sneaked in unnoticed, but now they’ve become the elephant in the room, and it’s time to deal with them. They’re causing a seismic shift in the profession’s ethos, and a new ethos requires a new ethic:  i.e., new standards for how to enter the profession and how to behave once you’re in it.

The ABA Journal published a piece on that very topic on New Year’s Day, entitled Does The UK Know Something We Don’t About Alternative Business Structures?  The article begins as follows:

“For two nations sharing a language and legal history, the contrast in the visions at play in the legal systems of the United States and United Kingdom is more than striking. It’s revolutionary.

“The debates in the U.S. go on: Should ethics rules blocking nonlawyer ownership of law firms be lifted? Is the current definition of unlicensed law practice harming rather than protecting clients? What about the restrictions on multidisciplinary practices?

“And those debates are by no means ending: Witness the newly created ABA Commission on the Future of Legal Services. Though ABA President William C. Hubbard does not mention ethics rule changes in the commission’s primary task of identifying the most innovative practices being used in the U.S. to deliver legal services, some of those practices have been questioned as possible ethical breaches. Meanwhile, the rules and restrictions stay in place. The situation in the United Kingdom couldn’t be more different: Such restrictions have largely been lifted, and under the Legal Services Act the creation of new ways of providing legal services—including through alternative business structures—is more than simply permitted; it is actively encouraged.”

Nonlawyer ownership of law firms, unlicensed practice, multidisciplinary practice… those are big issues. We’ll let the ABA tackle them. If you’ve been following these issues for awhile, you’ll remember the ABA did just that at their summer convention 17 years ago, and again the following year.

This blog won’t try to keep pace with the pros on that debate’s current version. We will, however, do some guessing of our own about how current trends in law practice and lawyer wellbeing might change not just lawyers and law practice, but our very stock and trade:  the law itself. A new cultural ethos in the law will do precisely that. It is already. We’re going to talk about that, and speculate about what it might look like going forward.

According to Wikipedia, futurology is an “attempt to systematically explore predictions and possibilities about the future and how they can emerge from the present.” We’re not going to be systematic here. Instead, we’ll engage in some moderately-well-informed-but-we-don’t-know-what-the-insiders-know curiosity.

Should be fun. So draw the shades and polish up your crystal ball (maybe you prefer this kind, or maybe that) and let’s take a look!