August 20, 2017

But Isn’t Legal Work Essential?

“The most common complaint expressed within the legal profession
is a lack of meaning or sense of fulfillment from work.”

The above quote is from an article published by the Lawyers Assistance Program of British Columbia. But how can anyone think their work in the law lacks meaning? I mean, the law is essential to the functioning of society, isn’t it? Yes, but apparently essential doesn’t count for much in the pursuit of meaning.

Andrew Russel, Dean and Professor in the College of Arts & Sciences at SUNY Polytechnic Institute in Utica, New York, says this in his Aeon Magazine article, “Hail the Maintainers: Capitalism excels at innovation but is failing at maintenance, and for most lives it is maintenance that matters more” (April 7, 2016):

Innovation is a dominant ideology of our era . . . As the pursuit of innovation has inspired technologists and capitalists, it has also provoked critics who suspect that the peddlers of innovation radically overvalue innovation. What happens after innovation, they argue, is more important. Maintenance and repair, the building of infrastructures, the mundane labour that goes into sustaining functioning and efficient infrastructures, simply has more impact on people’s daily lives than the vast majority of technological innovations.

Maybe so, but the maintainers themselves aren’t buying their own importance. This Huffington Post article from May 11, 2017, reported a study by Britain’s Office of National Statistics that found that workers in “maintainer” jobs — manual labor, construction, building trades, processing plants, factories, agriculture — had the highest rates of suicide in the U.K. A 2016 Center for Disease Control and Prevention study reported similar results in the U.S., with rates highest among lumberjacks, farmworkers, fishermen, carpenters, miners, electricians, construction trades, factory and production workers, and others who build, install, maintain, and repair things.

Other noteworthy findings of both studies were that suicide rates were three times higher among men than women; the highest female suicide rate was among police, firefighters and corrections officers; the second highest female suicide rate was in the legal profession; and among the professions, lawyer suicides were in third place after doctors and dentists.

The CDC study speculated that the principle causes behind these statistics include job-related isolation and demands, stressful work environments, and work-home imbalance, all of which are endemic in the legal profession. The British Columbia LAP piece quoted above states flatly that:

From a health perspective it is unhealthy to do meaningless, unchallenging, uncreative work, especially for those that are intelligent and well trained.

The article reports that a sense of meaningless is expressed differently by older vs. younger lawyers:

[A sense of meaningless about their work] is stated more directly by older practitioners as boredom, lack of job satisfaction, just getting through each day, turning out work without time to contemplate, turning out product for clients like a machine, and lack of connection to clients, which is often expressed as lack of client loyalty. Legal professionalism has been eroded by the need for volume, speed and uniformity of work product.

The younger practitioners . . . ask, “What good am I doing?” They express a lack of control over work or life. They worry about the demands of clients, and that there is little opportunity for them to utilize creative thinking. They also ask if they can have a life and practice law. . . . [T]hey do not get a sense of fulfillment from practicing law. They do not get a sense of meaning from it and it seems to be valueless.

We’ve been looking at books, articles, surveys, and academic research from business, academia, the professional world, and even the United Nations. All agree that meaningless malaise in the workplace is worldwide and afflicts both men and women across a full range of occupations from the “maintainers” to professionals. Money doesn’t help, neither does living in a “happy,” first world country. Striving after wealth and income growth only makes things worse. Meanwhile, rates of self-destruction are alarmingly on the rise, especially in this century.

More next time.

 

Kevin Rhodes is on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. His past blog posts for the CBA have been collected in two volumes — click the book covers for more information.

Richard Cory and How the Other Half Lives

Does anybody else remember that early Simon & Garfunkel song “Richard Cory”? (I just heard somebody ask, “Who’s Simon & Garfunkel?” Somebody else is looking them up in Martindale. <Sigh> I feel old.) Check out this video: two guys in jackets and ties, one mic, one guitar… and that raw 60’s revolutionary edge. Here are the lyrics:

They say that Richard Cory owns one half of this whole town,
With political connections to spread his wealth around.
Born into society, a banker’s only child,
He had everything a man could want: power, grace, and style.

Chorus:
But I work in his factory
And I curse the life I’m living
And I curse my poverty
And I wish that I could be,
Oh, I wish that I could be,
Oh, I wish that I could be
Richard Cory.

The papers print his picture almost everywhere he goes:
Richard Cory at the opera, Richard Cory at a show.
And the rumor of his parties and the orgies on his yacht!
Oh, he surely must be happy with everything he’s got.

Chorus

He freely gave to charity, he had the common touch,
And they were grateful for his patronage and thanked him very much,
So my mind was filled with wonder when the evening headlines read:
“Richard Cory went home last night and put a bullet through his head.”

Chorus

The song was inspired by a poem of the same name, by Edwin Arlington Robinson, himself the son of a wealthy New England businessman:

Whenever Richard Cory went down town,
We people on the pavement looked at him:
He was a gentleman from sole to crown,
Clean favored, and imperially slim.

And he was always quietly arrayed,
And he was always human when he talked;
But still he fluttered pulses when he said,
“Good-morning,” and he glittered when he walked.

And he was rich — yes, richer than a king —
And admirably schooled in every grace:
In fine, we thought that he was everything
To make us wish that we were in his place.

So on we worked, and waited for the light,
And went without the meat, and cursed the bread;
And Richard Cory, one calm summer night,
Went home and put a bullet through his head.

“How the other half lives.” My dad used to say that when he encountered someone who was, by his standards, rich. He would have said that if he had ever met Richard Cory.

The song and poem drip with irony. Irony is an educated, acquired taste — something someone like Miuccia Prada might appreciate — yes that Prada, the kind the Devil wears. My dad didn’t qualify for irony, I guess. If he had, he would have noticed the irony in how he used the phrase.

This is from Wikipedia:

“How the Other Half Lives: Studies among the Tenements of New York (1890) was an early publication of photojournalism by Jacob Riis, documenting squalid living conditions in New York City slums in the 1880s. It served as a basis for future “muckraking” journalism by exposing the slums to New York City’s upper and middle classes. This work inspired many reforms of working-class housing, both immediately after publication as well as making a lasting impact in today’s society.”

Yet another irony is that Paul Simon and Art Garfunkel probably went on to become wealthier than Richard Cory was himself.

And here’s one last irony for us all:  After all those UVA and Gallup and United Nations surveys I’ve been writing about, plus all those opinions and analyses of eminent economists like Adam Smith, Richard Easterlin, and Angus Deaton, and all those quotes by rich and famous people about money and happiness… most of us would still side with the factory workers and townspeople — we would still trade places with Richard Cory, given half a chance.

What is up with that?

Something Rotten in Denmark

“Something is rotten in the state of Denmark”
-Marcellus, Hamlet, Act I, Scene 4

Last time, we considered some of the findings of a huge international survey of money, happiness, wealth, and meaning conducted by Gallup and a couple University of Virginia professors. Digging deeper:

One of the most disturbing findings involved suicide rates. Wealthier nations, it turns out, had significantly higher suicide rates than poorer ones. For example, the suicide rate of Japan, where per-capita GDP was $34,000, was more than twice as high as that of Sierra Leone, where per-capita GDP was $400.

The strange relationship between happiness and suicide has been confirmed in other research, too. Happy countries like Denmark and Finland also have high rates of suicide.

[The survey authors revealed] a striking trend: happiness and unhappiness did not predict suicide. The variable that did, they found, was meaning—or, more precisely, the lack of it. The countries with the lowest rates of meaning, like Japan, also had some of the highest suicide rates.”

From The Power of Meaning: Crafting a Life That Matters, Emily Esfahani Smith (2017)

The Power of Meaning cites further data showing that:

Suicide rates are generally higher in wealthier countries than in poorer ones.

According to the World Health Organization, global suicide rates have increased 60% since World War II.

In 2016, worldwide suicide rates were the highest in 30 years.

In the U.S., suicide among 15-24 year-olds tripled from 1950-2000.

Among the middle-aged, suicide rates have increased by over 40% since the turn of the 21st century.

The lack of belief that our lives are meaningful is spiking suicide rates — especially in wealthy First World countries whose citizens say they’re generally happy with their lives. The 2017 World Happiness Report confirmed these findings:  Denmark ranked #2 in the list of happiest countries, and Finland was #5, yet both countries had high rates of suicide.

The World Happiness Report is no lightweight exercise in psychobabble — it is generated on the highest level of worldwide policy making. This is how it describes its origins:

The first World Happiness Report was published in April, 2012, in support of the UN High Level Meeting on happiness and well-being. Since then the world has come a long way. Increasingly, happiness is considered to be the proper measure of social progress and the goal of public policy. In June 2016 the OECD committed itself “to redefine the growth narrative to put people’s well-being at the center of governments’ efforts.” In February 2017, the United Arab Emirates held a full-day World Happiness meeting, as part of the World Government Summit. Now on World Happiness Day, March 20th, we launch the World Happiness Report 2017, once again back at the United Nations, again published by the Sustainable Development Solutions Network, and now supported by a generous three-year grant from the Ernesto Illy Foundation.

The Report is long and packed with statistical analysis, tables, graphs, and other data-nerd content, but if you’re game for it, it makes for fascinating reading.

Both the UVA/Gallup survey and the World Happiness Report revealed that dissatisfaction with work is a key contributor to the feeling that life lacks meaning, and to the escalating suicide rate.

Imagine how different the legal profession would be if it sought to promote not just the happiness of its members (that would be radical enough!) but also a sense of meaningfulness about working in the law.

We’ll be talking more about that.

 

For a summary of the UVA/Gallup study, see ScienceDaily, 18 December 2013:  “Residents of poorer nations find greater meaning in life.” For the original study, see S. Oishi, E. Diener, “Residents of Poor Nations Have a Greater Sense of Meaning in Life Than Residents of Wealthy Nations,” Psychological Science, 2013. You can request a reprint here.

Kevin Rhodes is on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. His past blog posts for the CBA have been collected in two volumes — click the book covers for more information.

Money, Happiness, Wealth, and Meaning

One reason money doesn’t make us happy is the stress of making it. The following is from Plutocrats: The Rise of the new Global Super Rich and the Fall of Everyone Else, Chrystia Freeland (2012):

Until a few years ago, the reigning theory about money and happiness was the Easterlin paradox, the 1974 finding by Richard Easterlin that, beyond a relatively low threshold more money didn’t make you happier.

But across countries, what millions of immigrants have always known to be true really is: the people of rich countries are generally happier than the people of poor countries.

The latest contrarian finding, however, is that moving to that state of greater wealth and greater happiness is decidedly unpleasant. As Angus Deaton, in a review of the 2006 Gallup World Poll, concluded, “Surprisingly, at any given level of income, economic growth is associated with lower reported levels of life satisfaction.”

Freeland also cites Angus Deaton for showing that “the richer you are, the more covetous you become” — not a likely prescription for happiness.

A 2014 U of Virginia/Gallup study weighed in with similar findings — Emily Esfahani Smith discussed them in The Power of Meaning: Crafting a Life That Matters, (2017):

Though the study was enormous, involving nearly 140,000 people across 132 countries, it was also straightforward. A few years earlier, researchers from Gallup had asked respondents whether they were satisfied with their lives, and whether they felt their lives had an important purpose or meaning. [Prof. Shigehiro Oishi of the University of Virginia and Ed Diener of Gallup] analyzed that data by country, correlating the levels of happiness and meaning with variables like wealth, rates of suicides, and other social factors.

Their findings were surprising. People in wealthier regions, like Scandinavia, reported being happier than those in poorer ones, like sub-Saharan Africa. But when it came to meaning, it was a different story. Wealthy places like France and Hong Kong had some of the lowest levels of meaning, while the poor nations of Togo and Niger had among the highest, even though people living there were some of the unhappiest in the study.

I.e., the ultimate wellbeing culprit is neither money nor the pursuit of it, but whether or not you believe your life has meaning and purpose. And according to this vast, worldwide survey, the residents of wealthy countries rate their lives as less meaningful than those in poor countries.

Analogizing from these findings to the legal profession, we would expect that, because the legal profession runs on the higher side of financial wellbeing, lawyers would report higher levels of happiness than less well-paid workers, but would also suffer from meaning malaise. And, since one of the wellbeing factors used in the survey was rates of suicide, we would also expect lawyers to have a correspondingly higher rate of suicide.

The high lawyer suicide rate (third highest among professionals, after doctors and dentists) has been well documented, and as we’ve been seeing, lawyers as a whole aren’t generally happy with their lives either, despite their profession’s higher rate of wealth.

We’ll look more into the meaning part of the equation next time.

Richard Easterlin is a professor of economics at USC. Sir Angus Stewart Deaton, FBA, is a British American economist and professor at Princeton. In 2015, he was awarded the Nobel Memorial Prize in Economic Sciences for his analysis of consumption, poverty, and welfare.

For a summary of the UVA/Gallup study, see ScienceDaily, 18 December 2013: “Residents of poorer nations find greater meaning in life.” For the original study, see S. Oishi, E. Diener, “Residents of Poor Nations Have a Greater Sense of Meaning in Life Than Residents of Wealthy Nations,” Psychological Science, 2013.

Kevin Rhodes is on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. His past blog posts for the CBA have been collected in two volumes — click the book covers for more information.

Can Money Buy Lawyer Happiness?

I thought the answer might be yes. Why? Because a few years back I blogged about the 2013 Colorado Supreme Court Lawyer Satisfaction and Salary Survey, which showed that, although 2/3’s of Colorado lawyers didn’t like their jobs enough to recommend them to someone else, at least they liked the money. And because a widely-cited study published the following year found that people in wealthier countries are happier than people in poorer countries. Put those two together, and maybe lawyers might say they’re happy overall, despite their job dissatisfaction.

I was wrong. I went several pages into the results of several Google searches and found nothing about happy lawyers or what makes them so. Happiness isn’t bad news, so maybe it doesn’t get reported, but still… why the long faces? More Google searches turned up a LegalCheek.com poll conducted in Great Britain the day after Theresa May gave the required notice of Great Britain’s withdrawal from the European Union. It reported that 70% of British lawyers weren’t happy about Brexit. But that doesn’t really count, does it?

The Happy Lawyer: Making a Good Life in the Law (2010) by law professors Nancy Levit and Douglas O. Linder had a promising title, but then, after an extensive review of the literature on lawyer happiness, the authors concluded that “[M]oney is the root of virtually everything that lawyers don’t like about their profession: the long hours, the commercialization, the tremendous pressure to attract and retain clients the fiercely competitive marketplace, the lack of collegiality and loyalty among partners, the poor public image of the profession, and even the lack of civility.”

So… money doesn’t just fail to make lawyers happy, it actually makes them unhappy. Hmmm.

Money certainly doesn’t make associates happy, even though 2016 saw associate salaries leap to new heights – at least in the world of BigLaw. In fact, the position of associate attorney came in rock bottom in a 2013 CareerBliss survey of not just lawyers, but 65,000 employees of all kinds. Forbes, “The Happiest And Unhappiest Jobs In America,” March 22, 2013. (Here’s Above the Law’s take on that story.)

A couple years after the CareerBliss poll, the Dean of Pepperdine Law School countered that well, there at least some happy associates. Go ahead — guess who they were — answer below.

If money doesn’t make lawyers happy, then what does? Earlier this year, Global Financial (“Financing Justice”) reported survey results by Robert Half Legal that a business casual dress policy helps lawyers deal with stress. Not quite the same as making lawyers happy.

Seriously? Business casual is the best we can do?

An August 2016 Above the Law article had a promising title — Why Are Lawyers So Happy? — but it turned out to be a tongue-in-cheek response to an earlier article by Jeena Cho, author of The Anxious Lawyer, all-around great person and reigning Goddess of Mindfulness in the Marketplace. (I’ve met Jeena, and she would be horrified at me giving her that title, but I do it with a smile, and besides, I think it’s true.) Both articles were written in response to a survey conducted by the ABA and the Betty Ford Foundation, which Forbes reported in an article whose title tells you everything you need to know:  “Study Indicates Lawyers Struggling With Substance Use And Other Mental Health Issues,” July 30, 2016.

No, money doesn’t buy lawyer happiness — according to pollsters anyway. Of course some lawyers are happy — with the money, their work, and maybe even life in general. I hope that’s you, and I hope you know lots of people like you. As for the rest, it’s hard to be happy about much of anything when you don’t like your work.

We’ll keep following the thread of money and happiness next time, to see what else we can learn from it. In the meantime, here’s your answer: Who are the happiest associates?  Tax lawyers.

Kevin Rhodes left a successful long-term law practice to scratch a creative itch and lived to tell about it… barely. Since then, he has been on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. He has also blogged extensively and written several books about his unique journey to wellness, including how he deals with primary progressive MS through an aggressive regime of exercise, diet, and mental conditioning.

Can Money Buy Happiness?

Let’s ask some more famous people:

“Happiness resides not in possessions, and not in gold, happiness dwells in the soul.” –Unknown

“By desiring little, a poor man makes himself rich.” -Democritus

“Money has never made man happy, nor will it, there is nothing in its nature to produce happiness. The more of it one has, the more one wants.” –Benjamin Franklin

“It is my opinion that a man’s soul may be buried and perish under a dung-heap, or in a furrow field, just as well as under a pile of money.” –Nathaniel Hawthorne

“When I was young I thought that money was the most important thing in life; now that I am old, I know that it is.” -Oscar Wilde

“Wealth is the ability to truly experience life.” –Henry David Thoreau

“He who loses money, loses much; he who loses a friend, loses much more; he who loses faith, loses all.” -Eleanor Roosevelt

“Happiness is not in the mere possession of money; it lies in the joy of achievement, in the thrill of creative effort.” -Franklin D. Roosevelt

“It’s a kind of spiritual snobbery that makes people think they can be happy without money.” –Albert Camus

“I am opposed to millionaires, but it would be dangerous to offer me the position.” -Mark Twain

“I’d like to live as a poor man with lots of money.” -Pablo Picasso

“Money is better than poverty, if only for financial reasons.” –Woody Allen

“There are people who have money, and there are people who are rich.” –Coco Chanel

Thanks to Aol.finance for those quotes. They’re inconclusive, I’d say, although they do tell us that money brings out the inner philosopher and humorist in famous people. Maybe we should have asked Adam Smith:

As I am reminded every year by my students, those who encounter Smith’s writings for the first time are usually quite surprised to learn that he associated happiness with tranquility—a lack of internal discord—and insisted not only that money can’t buy happiness but also that the pursuit of riches generally detracts from one’s happiness. He speaks, for instance, of “all that leisure, all that ease, all that careless security, which are forfeited forever” when one attains great wealth, and of “all that toil, all that anxiety, all those mortifications which must be undergone” in the pursuit of it. Happiness consists largely of tranquility, and there is little tranquility to be found in a life of toiling and striving to keep up with the Joneses.

The Problem With Inequality, According to Adam Smith, The Atlantic, June 6, 2016, Dennis C. Rasmussen, professor of political science at Tufts University.

According to the “invisible hand” man himself, both pursuing and possessing wealth make you unhappy. Maybe, but most of us are with Clare Booth Luce, Oscar Wilde, Albert Camus, Mark Twain, and Woody Allen — or with Tevye in his exchange with Perchik the Bolshevik:

Perchik: Money is the world’s curse.

Tevye: May the Lord smite me with it! And may I never recover!

I mean, all these famous (and mostly rich) people are entitled to their opinion,  but we’d like to find out for ourselves if money could make us happy — we’re pretty sure we could handle it.

And for purposes of this blog, what we’d really like to know is whether money can buy lawyer happiness.

We’ll talk more about that next time.

 

Kevin Rhodes left a successful long-term law practice to scratch a creative itch and lived to tell about it… barely. Since then, he has been on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. He has also blogged extensively and written several books about his unique journey to wellness, including how he deals with primary progressive MS through an aggressive regime of exercise, diet, and mental conditioning.

Professional Paradigms New and Old (Part 7): Traumatic Transformation, and What Do You Do When Your Paradigm is Done Shifting?

Professional paradigm shifts require transformation not just for the profession’s culture, but for the individuals in it.

wired%20to%20createIn their book Wired to Create: Unraveling the Mysteries of the Creative Mind, authors Scott Barry Kaufman and Carolyn Gregoire identify several ways individual paradigm-shifting transformation gets started. One is inspiration, which they say comes in three stages:

The first stage is that unsolicited moment when we feel inspired, “by a role model, teacher, experience, or subject matter.”

“Next comes transcendent awakening — a moment of clarity and an awareness of new possibilities.

“Which leads to the third hallmark feature of inspiration: a striving to transmit, express, or actualize a new idea, insight, or vision.” (Emphasis in original.)

Individual paradigm shifts are also prompted by traumatic life events, resulting in what psychologists call “posttraumatic growth.” Again from Wired to Create:

After a traumatic event, such as a serious illness or loss of a loved one, individuals intensely process the event—they’re constantly thinking about what happened, and usually with strong emotional reactions.

[T]his kind of repetitive thinking is a critical step toward thriving in the wake of a challenge… we’re working hard to make sense of it and to find a place for it in our lives that still allows us to have a strong sense of meaning and purpose.

I have personal experience with both inspiration and trauma. As I wrote a couple weeks ago, “I have a personal, real-time, vested interest in change because I’ve been on a steep personal transformation learning curve for nearly a decade — for all sorts of reasons I’ve written about in my books, my personal blog, and sometimes in this column.” Learning, writing, and conducting workshops about the psychological and neurological dynamics of transformation has been has been my way of being proactive about something I’ve come to call “traumatic transformation.”

ApocalypseIn fact, I just finished a new book that completes my decade-long intensive on personal transformation. As always, I’ve learned a lot writing it, but the most startling discovery is that paradigm shifts don’t go on forever: a time actually comes when the new fully replaces the old. Now that I’ve finished it, I can see that writing the book was in part a way for me to bring closure to my years of personal paradigm shifting.

That being the case, I’ve decided that it’s time for me to set aside my transformation journey and let its lessons play out for awhile. Which is why, after today’s post, I’m going to take an indefinite vacation from writing this column. At this point, I have no fresh thoughts to add to what I’ve been writing about for the past several years. Instead of repeating myself, I want to take a break and see if anything new comes up. If so, I’ll come back and share it.

In the meantime, my endless thanks to the Colorado Bar Association and CBA-CLE and to my fabulous editor Susan Hoyt for letting me trot out my research and theories and personal revelations in this forum. And equally many thanks to those of you who’ve read and thought about and sometimes even taken some of these ideas to heart and put them into practice.

On the wall above the desk where I write, I have a dry-mounted copy of the very last Sunday Calvin and Hobbes comic strip, which I cut out of the newspaper the morning it ran. (Speaking of paradigm shifts, remember newspapers?) There’s a fresh snow, and our two heroes hop on their sled and go bouncing down a hill as Calvin exults, “It’s a magical world, Hobbes ol’ buddy… Let’s go exploring!”

I suspect Calvin and Hobbes are still out there, exploring. I plan to join them.

You?

Apocalypse: Life On The Other Side Of Over was just published yesterday. It’s a free download from the publisher, like my other books. Or click on this link or the book cover for details.

And if we don’t run into each other out there exploring, feel free to email me.

 

Professional Paradigms New and Old (Part 6): Law Beyond Blame

rhodes(At the end of last week’s post, I promised a follow up this week. We’ll get to that next week. In the meantime, the following was just too pertinent to pass up.)

In several posts over the past couple years, we’ve looked at how technology acts as a disruptive innovator, shifting paradigms in the legal profession. I recently came across another disruptor: the biology of the brain. Its implications reach much further than, let’s say, Rocket Lawyer.

David Eagleman is his own weather system. Here’s his website — talk about creds. His short bio is “a neuroscientist at Baylor College of Medicine, where he directs the Laboratory for Perception and Action, and the Initiative on Neuroscience and the Law.” The latter’s website posts news about “neulaw,” and includes CLE offerings. Among other things, neulaw tackles a bastion of legal theory: the notion of culpability.

Incognito_Cover_EaglemanEagleman’s book Incognito: The Secret Lives of the Brain contains a long chapter entitled “Why Blameworthiness Is The Wrong Question.” It begins with the story of Charles Whitman, who climbed a tower at the University of Texas in August 1966 and started shooting, leaving 13 people dead and 38 wounded before being killed himself. He left a suicide note that included the following:

“I do not understand myself these days. I am supposed to be an average reasonable and intelligent young man. However, lately (I cannot recall when it started) I have been a victim of many unusual and irrational thoughts… If my life insurance policy is valid please pay off my debts… donate the rest to a mental health foundation. Maybe research can prevent further tragedies of this type.”

Whitman’s brain was examined and a tumor was found in the sector that regulates fear and aggression. Psychologists have known since the late 1800s that impairment in this area results in violence and social disturbance. Against this backdrop, Eagleman opens his discussion of blameworthiness with some good questions:

Does this discovery of Whitman’s brain tumor modify your feelings about his senseless murdering? If Whitman had survived that day, would it adjust the sentencing you would consider appropriate for him? Does the tumor change the degree to which you consider it “his fault”?

On the other hand, wouldn’t it be dangerous to conclude that people with a tumor are somehow free of guilt, or that they should be let off the hook for their crimes?

The man on the tower with the mass in his brain gets us right into the heart of the question of blameworthiness. To put it in the legal argot: was he culpable?

The law has accommodated impaired states of mind for a long time, but Eagleman’s analysis takes the issue much further, all the way to the core issue of free will, as currently understood not by moral and ethical theorists but by brain science. Incognito is an extended examination of just how much brain activity occurs beneath the level of conscious detection, in both “normal” and impaired persons. Consider these excerpts:

[T]he legal system rests on the assumption that we do have free will — and we are judged based on this perceived freedom.

As far as the legal system sees it, humans . . . use conscious deliberation when deciding how to act. We make our own decisions.

Historically, clinicians and lawyers have agreed on an intuitive distinction between neurological disorders (“brain problems”) and psychiatric disorders (“mind problems”).

The more we discover about the circuitry of the brain, the more the answers . . . move toward the details of the biology. The shift from blame to science reflects our modern understanding that our perceptions and behaviors are controlled by inaccessible [neurological] subroutines that can be easily perturbed.

[A] slight change in the balance of brain chemicals can cause large changes in behavior. The behavior of the patient cannot be separated from his biology.

Think about that for a moment — as a lawyer, and as a human being. The idea that our biology controls our behavior — not our state of mind or conscious decision-making — is repugnant not only to the law, but to our everyday perceptions of free will and responsibility. Tamper with free will, and a whole lot of paradigms — not just legal notions of culpability — come crashing down.

Eagleman’s discussion of these issues in Incognito is detailed and thoughtful, and far too extensive to convey in this short blog post. If you’re intrigued, I recommend it highly.

Kevin Rhodes has been a lawyer for over 30 years. Drawing on insights gathered from science, technology, disruptive innovation, entrepreneurship, neuroscience, and psychology, and also from his personal experiences as a practicing lawyer and a “life athlete,” he’s on a mission to bring wellbeing to the people who learn, teach, and practice the law.

Professional Paradigms New and Old (Part 5): Why Change if We Don’t Have To?

rhodesWhy change if we don’t have to?

Good question. I Googled it. The most hits were about the hazards of not changing your car’s oil, plus a few along the same lines about furnace filters or the water filter on the fridge. There was one about changing your underwear, and a few about lifestyle changes related to health issues. All of those are maintenance issues — mechanical, hygiene, health — which we would generally consider have to’s.

What about changing to keep up with the competitive pressures of the marketplace? There’s a lot of keeping up with the Joneses thinking out there, but in my observation, making yourself afraid of what the competition might do rarely results in anything other than drama. No have to in that.

Recently, at a CLE workshop in South Carolina, a participant asked, “Aren’t there some things we don’t need to change?” The question brought me up short, reminded me why we were investing a whole day talking about change: we were there to enhance professionalism, help us do our work better, keep us ethical, and maybe even help us to be happy practicing law — or find the courage to get out. That’s why we needed to talk about things like law school inflicted brain damage, lawyer substance abuse, depression, anxiety, and suicide, and the value of personal happiness in supporting ethical behavior. Some things are broken and need to be fixed, and some things we do to keep our edge — both are necessary maintenance, part of our professional have to’s.

But there was a second part to my answer. Beyond those maintenance issues, I agree: let’s not change if we don’t want to. I’m not sure it’s even possible. I do know that grudging change never seems to work.

I say that even though I think and write a lot about change — particularly the psychological and neurological dynamics of personal transformation. (You may have noticed.) If I were still in law practice, I would no doubt be incorporating the not-so-futuristic practice developments into my firm, and otherwise actively engaging with the huge paradigm shift happening in our profession.

But that’s not everybody’s choice, and I get that. They’re content to let those developments play out by the process of cultural evolution. If a day comes that threatens obsolescence beyond mere fear-mongering, it will become a shared maintenance issue, and we’ll take care of it together… but probably not before.

All that went into my answer to the question in South Carolina. Which made me ask myself once again what’s behind my own commitment to change. Bottom line is, I have a personal, real-time, vested interest in change because I’ve been on a steep personal transformation learning curve for nearly a decade — for all sorts of reasons I’ve written about in my books, my personal blog, and sometimes in this column. Thinking and writing about it is my way of being proactive about my own best interests.

More next time on why that’s relevant to this blog.

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Check out this collection of last year’s Future of Law blog posts. It’s a FREE download. Also included is the Culture of Law series from the second half of 2015. Click this link or the cover for downloading details.

Professional Paradigms New and Old (Part 4): Failure As A Virtue

rhodesAs we saw last week, one way to engage with a paradigm shift is to “walk in stupid every day.” That won’t be easy for professionals: our job is to be smart; our brains are culturally wired with that expectation. Being “stupid” turns that cultural expectation on its ear, makes our brain circuits fritz.

So does another powerful paradigm-busting tool: learning to embrace failure. Professional cultural paradigms include conventional wisdom about how to succeed; flying in the face of them is a set up for failure.

In their book Wired to Create (which we looked at last time), Scott Barry Kaufman and Carolyn Gregoire cite the work of psychologist Robert J. Sternberg, who identified several key attributes of people who are “willing to generate and promote ideas that are novel and even strange and out of fashion” — i.e., who would embrace a paradigm shift. According to Dr. Sternberg, that kind of person:

  • Tries to do what others think is impossible;
  • Is a noncomformist;
  • Is unorthodox;
  • Questions societal norms, truisms, and assumptions.

Life is risky for nonconformists. According to Kaufman and Gregoire:

Sternberg found that artists [who participated in his study] said that a creative person is one who takes risks and is willing to follow through on the consequences of those risks. Businesspeople, meanwhile, responded that a creative person in the business world is one who steers clear of the pitfalls of conventional ways of thinking.

The inherent risks of unconventional thinking require a willingness to fail — so says organizational psychologist Adam Grant in his TED talk on “The Surprising Habits of Original Thinkers”:

The greatest originals are the ones who fail the most, because they’re the ones who try the most. You need a lot of bad ideas in order to get a few good ones.

No wonder W+K — the uber-creative ad agency we looked at last time — has a Fail Harder Wall.

Then what about our professional obligation to be smart, and steer clear of risk and failure? David P Barash, evolutionary biologist and professor of psychology and biology at the University of Washington, tackles that conundrum in an article entitled “Paradigms Lost” that begins this way:

Science is not a “body of knowledge” – it’s a dynamic, ongoing reconfiguration of knowledge and must be free to change.

The capacity for self-correction is the source of science’s immense strength, but the public is unnerved by the fact that scientific wisdom isn’t immutable. Scientific knowledge changes with great speed and frequency – as it should – yet public opinion drags with reluctance to be modified once established. And the rapid ebb and flow of scientific “wisdom” has left many people feeling jerked around, confused, and increasingly resistant to science itself.

Unlike science, the law profession’s conventional cultural paradigm does not embrace change “with great speed and frequency.” On the other hand, the new paradigm/technology-driven legal practice developments do precisely that — which, according to the existing paradigm, makes them a high risk, fast road to failure.

Those who choose to innovate in the face of this risk need creativity and courage. Once again, this is from Wired to Create:

The history of creative thought and social progress is littered with similar stories of banned books, culture wars, persecuted artists, and paradigm-shifting innovations that change the way we look at the world.

In choosing to do things differently, [creative people] accept the possibility of failure — but it is precisely this risk that opens up the possibility of true innovation.

But can a professional paradigm truly embrace failure? More next time.

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Check out this collection of last year’s Future of Law blog posts. It’s a FREE download. Also included is the Culture of Law series from the second half of 2015. Click this link or the cover for downloading details.

Professional Paradigms New and Old (Part 3): “Walk in Stupid Everyday”

We looked last year at physicist Thomas Kuhn’s model for how paradigms shift, and also explored another scientist’s exhortation “The best way to predict the future is to create it.”

Good, quotable advice, but how do you create what you can’t see? Richard and Daniel Susskind say often in their book The Future of the Professions that, as they travel the world delivering their message, many professionals agree that there’s a massive paradigm shift currently happening in the professions, just not their own.

Why this paradigm shift blindness?

wired%20to%20createReason 1: Too Much Expertise

Authors Scott Barry Kaufman and Carolyn Gregoire describe this phenomenon in their marvelous book Wired to Create: Unraveling the Mysteries of the Creative Mind:

While experience is an important aspect of excellence in any creative discipline, one risk of being a seasoned pro is that we become so entrenched in our own point of view that we have trouble seeing other solutions. Experts may have trouble being flexible and adapting to change because they are so highly accustomed to seeing things in a particular way.

Reason 2: Cultural Blindness

In each of the past two years (here and here), we’ve also 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 — it determines what we see and don’t see, and can literally blind us to new developments happening in our midst.

Reason 3: Not Being a Newcomer

Again from Wired to Create: “the newcomers to a field are sometimes the ones who come up with the ideas that truly innovate and shift paradigms.” In the law, the newcomers are responsible for the wave of new practice models and technologies. As I said last year, “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.”

MavericksA Cure for Paradigm Shift Blindness: Get Stupid

Dan Wieden is imminently quotable. He ought to be: he’s one of the namesakes of legendary ad agency Wieden+Kennedy, and personally created Nike’s “Just Do it” slogan.

W+K has offices all over the world and bills over a billion dollars annually. Their website is a creative trip all its own — you might enjoy cruising it, if you have a moment. The firm was profiled in a 2006 business bestseller, Mavericks at Work: Why the Most Original Minds in Business Win, where Wieden was famously quoted as saying this about his approach to keeping W+K at the top of its game:

Whatever day it is, something in the world changed overnight,
and you better figure out what it is and what it means.
You have to forget what you just did and what you just learned
You have to walk in stupid every day.

Lawyers aren’t the only professionals who will have trouble following that advice. People pay us to be smart; their benefit and our livelihood depend on it. True, but there’s a whole lot of shaking goin’ on around us. We might want to get stupid enough to see it.

Next time, we’ll look at another paradigm shifting skill that won’t come easy: embracing failure.

 

Mavericks at Work may be the best business book I’ve ever read. If you like that kind of thing, you owe it to yourself.

And Wired to Create is the best I’ve ever read on its topic. Author Scott Barry Kaufman is the scientific director of the Imagination Institute in the Positive Psychology Center, University of Pennsylvania, and Carolyn Gregoire is a senior writer at the Huffington Post, covering psychology, mental health, and neuroscience. And that’s just the first sentence of each of their author bios. Talk about creds.)

 

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Check out this collection of last year’s Future of Law blog posts. It’s a FREE download. Also included is the Culture of Law series from the second half of 2015. Click this link or the cover for downloading details.

Professional Paradigms New and Old (Part 2): You Had Me At The Creds

rhodesI met a friend for a beer last Thursday, and told him about my blog post that day about the future (actually the end) of the professions.

“I’ve got a story for you about that,” he said. “I thought now that I’m retired, I should get my affairs in order.”

I practiced estate planning, so my ears perked up. He told me about all the useful information, forms, and software he’d found online, also about the estate planning seminars he’d attended and the presenting lawyers’ “don’t try this at home” pitches. And his incredulous response to their fee quotes “for things I could do myself.”

He’s newly retired from an illustrious teaching career — an Ivy League grad, six published books, awards and accolades everywhere. He has a huge and healthy respect for the professions and professionalism. And he had more to say.

“In education, it’s gotten to the point where it’s, why even bother to go to school? It’s all available online. You can learn what you want, your own way.”

Then he paused. “But I still wouldn’t go to a surgeon who didn’t have the credentials.”

Ah, the credentials. Is that why people still go to law school, med school, get a CPA, a teaching certificate?

Yes, in part, but the world of professional credentials is changing. I talked about this in a post last March called Strange Bedfellows: Commercial Law and Legal Ethics. Here’s an excerpt:

Peer-to-peer is what’s driving the new sharing economy. Consider this from a recent article in Time Magazine:

The key to [the sharing economy] was the discovery that while we totally distrust strangers, we totally trust people — significantly more than we trust corporations or governments. Many sharing-company founders have one thing in common: they worked at eBay and, in bits and pieces, recreated that company’s trust and safety division. Rather than rely on insurance and background checks, its innovation was getting both the provider and the user to rate each other, usually with one to five stars. That eliminates the few bad actors who made everyone too nervous to deal with strangers.

In that post, I made these two predictions (among others):

  • The peer-to-peer dynamic will prevail in significant economic sectors — including the professional service sector of which the legal profession is a part.
  • The resulting consumer satisfaction data will have a curious side effect as a new kind of legal ethics watchdog.

As for the latter, I said this:

Peer-to-peer is the ultimate in self-policing, which makes its extension to legal ethics unlikely but logical. Rule 8.3 — the duty to report unethical behavior among our peers — has long been a part of the Model Rules of Professional Conduct, but has been more honored in the breach than the observance. The new, democratized marketplace will take this matter into its own hands.

In other words, the professional paradigm will shift — in fact, is already shifting — to include peer-to-peer review as an alternative form of professional credentialing.

True, the typical consumer still wants law school and bar admittance credentials for the legal equivalent of surgery, but for the rest, we’re seeing a major shift in consumer attitudes toward my friend’s — to the point where the consumer is more likely to buy from someone (lawyer or not, which is its own topic) who gets 20 five-star ratings for estate planning offered at a reasonable price (which my buddy gave as 10 percent of what the seminar lawyers were charging). They’ve got the creds the consumer wants… just a different kind.

Like it or not, it’s happening out there in the New Economy marketplace, and we’ll see more of it in our house. We’re not all the way to lawyers posting client ratings on a five-star scale yet, but one day… I’ll bet it happens. I also bet that day will come way sooner than most lawyers would care to predict.

 

For Bill Gates’ take on the value of a college education credentials, check out his post yesterday on LinkedIn Pulse.

And for a toe dip into the New Economy, take a look here and here.

Rhodes_4Check out this collection of last year’s Future of Law blog posts. It’s a FREE download. Also included is the Culture of Law series from the second half of 2015. Click this link or the cover for downloading details.