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LAWYER PERSONALITY, THE FUTURE OF THE LEGAL PROFESSION, & THE COMPREHENSIVE LAW MOVEMENT Susan Daicoff Professor, Florida Coastal School of Law Guest Lecture, University of Florida College of Law March, 2010 A TRIPARTITE CRISIS Deprofessionalism and incivility Low public opinion of lawyers and the legal system Lawyer distress and dissatisfaction ABA SURVEY - 1993 Peter D. Hart Research Associates 80% 78% 63% 60% 40% 45% 40% 36% 19%22% 16% 20% 7% 0% 1993 Peter D. Hart Survey Caring and Compassionate Honest and Ethical Constructive Part of Community Make Too Much Money Are Greedy Charge Excessive Fees Lack Necessary Ethics Not Honest or Ethical Liked Own M.D. Liked Own Attorney Disliked Own M.D. Disliked Own Attny PUBLIC OPINION POLL - 1991 Lawyers 70% 62% Pharmacists 60% 50% Doctors, College Teachers, Clergy, Dentists, Engineers 50% 35% Funeral Directors, Bankers, Journalists 40% Newspaper Reporters 22% 24% 30% 20% 16% Building Contractors 20% 12% 6% Realtors 10% Advertisers 0% Car Salesmen High Honesty or Ethical Standards DEPRESSION Among Law Students & Lawyers 45% 40% 40% 35% 30% 32% 25% 20% 17.90% 19% 15% 10% 10% 9% 9% 9% 9% 9% 5% 0% PreLaw 1st Year 3rd Year 2 Yrs 0-78 Yrs of PostGrad Practice Lawyers General Population Maximum ALCOHOLISM Percentage of Alcoholic Drinkers 18% 18% 16% 14% 12% 10% 9% 8% 6% 4% 2% 0% Lawyers General Population PSYCHOLOGICAL DISTRESS Beck, 1995-96 30% 30% 27% 25% 20% 18% 21% 16% 15% 10% 11% 10% 7% 5% 2.27% 0% Male Lawyers Female Lawyers General Population Global Distress Anxiety Depression Paranoid Ideation Interpersonal Sensitivity Social Isolation & Alienation Obsessive-Compulsiveness Hostility CAREER SATISFACTION Satisfaction With the Practice of Law 20.60% Very Satisfied 6.90% Somewhat Satisfied Somewhat 51.20% Dissatisfied 21.20% Very Dissatisfied GROWING DISSATISFACTION? Summary of ABA/YLD Surveys 30% Somewhat 20% Dissatisfied 17% 10% 14% Very Dissatisfied 12% 3% 5% 7% 0% 1984 1990 1995 LAWYER DISTRESS: A Constant 20%? n o cti 30% a isf at 25% n iss o ism ssi ss D l e ho pr e 20% co str De Al Di All Lawyers h. 15% yc Ps General Population 10% 5% 0% Depression Alcoholism Psych. Dissatisfaction Distress THE “LAWYER PERSONALITY” need for achievement; pessimism? ambitious under stress materialism; value economic bottom- competitiveness DRIVE TO line ACHIEVE “Thinking” MBTI aggressive INTERPERSONAL preference under stress RELATING STYLE dominance “rights” orientation interpersonal insensitivity Testosterone Levels: Lawyers, Blue Collar Workers, and Other Professionals 90 90 80 70 60 Professionals 50 40 Lawyers 30 27.4 20.4 Blue Collar 20 Workers 10 0 Professionals Blue Collar Workers THINKING/FEELING (Myers-Briggs Dimensions - Richard, 1994) 19% 34% 66% 81% Lawyers - Male Lawyers - Female 35% 40% Thinking Feeling 60% 65% Most Males Most Females “THINKING” vs. “FEELING” Myers-Briggs Type Indicator Dimensions THINKERS: value justice, rationality, truth, & objectivity; decisions don’t reflect own personal values; can be cold & calculating; good problem- solvers FEELERS: value harmony, interpersonal rel’ps., praise & mercy; apply their own personal values to make decisions; seek to do what’s right for self & others; sensitive to the effect of decisions on others MORAL ORIENTATION (Gilligan-Based Categories - Weissman, 1994) Male Lawyers Female Lawyers 17% 22% 33% 43% 50% 35% Ethic of Care Ethic of Care Rights Orientation Rights Orientation Balanced Balanced “ RIGHTS ORIENTATION” vs. “ETHIC OF CARE” Gilligan-Based Dimensions RIGHTS: weighs conflicting rights & duties; seeks fairness, justice, & equality; maintains & applies rules, standards, & role oblig’ns. to arrive at clear, absolute answers CARE: contextual; focuses on harm to people; seeks to avoid harm, maintain & restore rel’ps. & protect others from hurt; decides by assessing relative harm to & vulnerabilities of parties Myers-Briggs Types of Lawyers Preference for Introversion, Intuition, Thinking, and Judging among lawyers & law students: – Private practice lawyers prefer Introversion, Intuition, Thinking (NT); ISTJ, ENFP, INTJ ESTP, ISFP, ESFJ, ESFP – Judges prefer Thinking, Judging (ST); ISTJ, ESTJ ISFP – Admin. Attorneys prefer Intuition, Thinking, Judging (NT); INTJ, ENTJ – Lawyers similar to corporate executives (TJ) More Lawyer Studies Undergraduates more likely to acquit when defense attorney was aggressive & male Male and female trial lawyers’ testosterone levels higher than nontrial lawyers; lawyers’ levels like other white-collar workers’ but trial lawyers’ like blue-collar workers’ Lawyers evaluate options economically ($); nonlawyers swayed by psychological factors Effects of Law School From interest in public interest work to private practice; unrelated to student loan amount “Ethic of care” disappears (not the same as “Feeling”) Subtle fostering of: pessimism, competitive peer relationships, Introversion, and Thinking style of decisionmaking Values shift from intrinsic to extrinsic rewards Distress develops (depression, lowered wellbeing) Krieger & Sheldon Studies Intrinsic motivation and community service values decreased in the first year Appearance values increased in the first year Those with the most intrinsic motivations attained the highest grades But, those with highest grades most often shifted in career preferences towards "lucrative" and higher-stress law careers, and away from "service"-oriented and potentially more satisfying law careers More Law Student Studies Pessimism linked to high grades & depression (bad things all my fault; good things pure luck / ISG vs. EUS attributions) Optimism linked to low grades Introversion & Thinking linked to high grades Stress associated with greater ambition, aggressiveness, and isolation Traits Associated With Lawyer Satisfaction “Thinking” Associated With Satisfaction: – “Thinking” and “Judging” Associated With Greater Job Satisfaction Among Attorneys (Richard, 1994) Rights Orientation Correlated With Satisfaction: – Rights Orientation Correlated With Career Satisfaction Among Female Attorneys (Weissman, 1994) Intrinsic Values Correlated with Wellbeing in Law Students – Krieger & Sheldon TRADITIONAL LAW PRACTICE Competitive Aggressive Ambitious Emphasis on winning (dominance) Rights-oriented Logical, analytical Materialistic, law-as-a-business ATYPICAL LAWYER TRAITS? “Feeling” Preference on MBTI Ethic of Care in Moral & Ethical Decisionmaking Altruistic Nonmaterialistic Collaborative Noncompetitive Nonaggressive THE COMPREHENSIVE LAW MOVEMENT: Law as a Healing Profession 10+ “Vectors:” – Therapeutic Jurisprudence – Procedural Justice – Preventive Law – Restorative Justice – Collaborative Law – Problem Solving Courts – Creative Problem Solving – Transformative Mediation – Holistic Justice – Mindfulness Meditation – Others Precursors: Why now? Shift to Post- Tripartite crisis in legal Enlightenment profession philosophical values Societal overuse of (connectedness, litigation to solve community, problems globalization) Influx of diverse End of the Cold War individuals into legal (them vs. us mentality) profession Vectors of the Comprehensive Law Movement Mindfulness “TJ/PL” Preventive law Holistic justice Therapeutic Creative problem jurisprudence solving Procedural justice Transformative Collaborative mediation law Restorative justice Problem solving courts INTERSECTION of the Vectors 1. OPTIMIZING HUMAN Preventive law WELLBEING Therapeutic jurisprudence (harmony, healing, Therapeutically oriented reconciliation, moral preventive law Drug treatment courts; growth…) Creative problem domestic violence courts; mental health courts solving Law & 2. ”RIGHTS PLUS:” Holistic justice socioeconomics Transformative FOCUS ON Collaborative mediation divorce law EXTRALEGAL Restorative justice CONCERNS (needs, Procedural justice goals, beliefs, morals, resources, relationships, community, psychological state of mind …) SubIntersections Avoid Interpersonal Conflict & “Hardball” Litigation Share Equal Power Collaborative Therapeutic Interdisciplinary Can Be Consistent w/ Lawyers’ Own Morals “Organizational Chart” of the Movement Lenses: Holistic Therapeutic Jurisprudence Justice Traditional/ Preventive Law Religious/ Adversarial Spiritual (win/lose – binary) Creative Problem Solving Procedural Justice Processes: Negotiation/Settlement Collaborative Law Problem Solving Evaluative Mediation Courts Restorative Justice Facilitative Mediation TJ/PL Arbitration Transformative Preventive Law Litigation & other Mediation judicial processes Reform Movements First they ignore you, then they laugh at you, then they fight you, then you win. –Gandhi Every truth passes through three stages before it is recognized. In the first it is ridiculed, in the second it is opposed, in the third it is regarded as self- evident. – Arthur Schopenhauer Integrated vs. Parallel Question: Parallel Movements Complementary and Alternative Medicine (CAM) Montessori Education Integration Options INTEGRATED DEVELOPMENT Every lawyer/judge does it PARALLEL DEVELOPMENT Specialized lawyers/courts/legal educators do it – in boutique law firms, specialized courts, departments of larger firms, elective courses HYBRID/BOTH? Advantages & Disadvantages Integrated Parallel Universal Specialized Mainstreamed Better delivery of CLP CLP becomes a “best practice” services Equal access to all services Obstacles Marginalization Need for retraining Lower fees to lawyers Misuse Unequal access to traditional Paternalism & CLP services “Ups” malpractice standard Why Integrate? Better, more comprehensive client services Better access to a full range of legal services Better outcomes for more legal matters Optimized client wellbeing and relationships Law practice and judging mirrors certain values: – Collaboration --Respect – Autonomy --Care – Feedback --Interaction – Excellent interpersonal skills – Morality --Balance Lawyers have ways to fulfill certain intrinsic values, such as: – Making a difference – Optimizing human wellbeing – Preserving/restoring relationships, harmony – Problemsolving – Creativity An Integrated Model An Integrated Model Intrapersonal: Enhanced self-awareness skills Interpersonal: Enhanced communication skills Counseling: Integration in legal strategizing Dispute Resolution: Enhanced dispute resolution processes Adjudication: Enhanced disposition options Legal Education: Integration in law schools An Integrated Model - Examples Intrapersonal: Self-awareness – Countertransference – Silver (2007) Interpersonal: Communication skills – With clients – Brooks (2006), Dauer (2005) – With lawyers and judges Counseling/Decisionmaking w/client – Traditional legal analysis and strategies as one of many “lenses” & “processes” – Psycho-legal soft spots – Stolle, Wexler, Winick, Dauer (1997) – Lawyering with an ethic of care, or rehabilitative or interdisciplinary focus in criminal cases – Winick (2006) – Utilizing procedural justice or tx compliance concepts in client planning – Wexler – Ex: Strategizing about the value of confessions in criminal cases –Ronner (2006) Dispute resolution – Considering TJ “processes” as options for dispute resolution – Ex: Use of apology – Scott (2005), Cohen Disposition/Adjudication – Circle processes, problem solving courts, etc. – Judging with an interdisciplinary, problemsolving, collaborative, bold, engaged, and action- oriented approach instead of a more traditional one of restraint, disinterest, and modesty – Bo & Singer (2006); Schma (2005) Legal education - Winick (2005) (18 U.S. law schools with TJ-type courses – Silver (2006)) The New Legal Skills New Intrapersonal Skills – Countertransference – Boundary management – Selfawareness and selfknowledge – Appropriate self-disclosure New Interpersonal Skills – Listening – Apology – Social science knowledge (e.g., procedural justice) – Rewind/fast forward – Leadership & teambuilding – Problem solving New Dispute Resolution Skills – Collaborative law, transformative mediation – Restorative justice (circle process) – Problem solving courts (DTCs, UFCs, etc.) New Judging Skills – Interdisciplinary competence – Collaboration – “tough love” A New Law School Curriculum Teach the entire lawyer’s toolkit Teach lenses & processes, explicitly Encourage a diversity of approaches Teach lawyering skills by including the 4 or 5 “layers” of comprehensive lawyering skills, as defined above Perhaps in 2d and 3d year, teach substantive law via problem method, using the “org’l chart” and “4-5 layer approach,” outlined above Obstacles to Implementation current emphasis of legal education – extrinsic rewards – Krieger & Sheldon (2000, 2007) – “thinking like a lawyer” current climate of private law firms – emphasis on billable hours & “bottom line” lawyers’ and judges’ perceptions of the ethics codes – zealous advocacy – MR 1.1, 1.3 vs. MR 2.1 personality attributes of attorneys – “Thinking” on the MBTI – Richard (1994) – low interpersonal & emotional intelligence – dominance “mask” – Reich (1976) – discomfort with emotional, relational matters Overcoming Obstacles Modeling excellent comprehensive competencies for lawyers, judges, law students Recasting comprehensive law as “best lawyering practice” or “leadership” Noting: – Clients’ dissatisfaction w/ legal system – Judges’ dissatisfaction w/criminal recidivism – Lawyers’ dissatisfaction with their work Collecting client satisfaction data Collecting outcome measures (e.g., cost, recidivism, satisfaction, compliance) Educating public re: availability of vectors Seeking explicit ethics guidance/opinions, if necessary Being conscious about integrated/parallel development Utilizing recent reports on legal education’s deficiencies to propel curricular development CONCLUSIONS “Lawyer, Know Thyself” Goodness of Fit Between Personality and Practice Conscious Development of Comprehensive Law Approaches Along With Traditional Law Practice Mentoring Millennials Susan Daicoff Professor of Law Florida Coastal School of Law The State of the Legal Profession During the Millennials’ Lifetimes Deprofessionalism and incivility Low public opinion of lawyers and the legal system Lawyer distress and dissatisfaction Rising unemployment Instability in law firms and clients Changing client demands, changing lawyer roles The State of the Legal Profession (c) Susan Daicoff, 2010. Solutions & Responses 04 06 00 10 06 09 (c) Susan Daicoff, 2010. Who are the Millennials? Birth Years: mid1970s – early 2000s (e.g. 1982-2001, acc. to H&S) Books by Howe & Strauss: – Generations: The History of America’s Future, 1584 to 2069 (1991) – Millennials Rising: The Next Great Generation (2000) Book: Junco & Mastrodicasa (2007) Must Read Law Reviews: – Susan K. McClellan, 15 Clinical L. Rev. 255 (2009) – Melissa H. Weresh, 61 S. C. L. Rev. 337 (2009) – Melody Finnemore, 66-Nov. Or. St. B. Bull 9 (2005) Proposed Generations Lost Generation (1883–1900) Greatest Generation (1901–1924) Silent Generation (1925–1942) Baby Boomer (1943–1960) Generation X (1961–1981) Millennial Generation/Generation Y/Generation Next or Net(1982–1998) Generation Z/New Silent Generation/Homeland Generation (1999–2019) Last Birth Years Historical Time Period TheType Century & 6 Generations Generation Greatest or GI Hero/Civic 1901-1924 WWI & High but Generation G.I. Generation Hero (Civic) Prohibition Unraveling 1901–1924 World War I/Prohibition Silent Artist/Adaptive 1925-1942 Great Depression Crisis Generation Silent(Adaptive) Artist Generation & WWII 1925–1942 Great Depression/World War II Baby Boomers Prophet/Idealist 1943-1960 Superpower High (peace & Millennial Saeculum (baby) Boom Generation America prosperity) Prophet (Idealist) 1943–1960 Generation X Nomad/Reactive Superpower America 1961-1981 Consciousness Awakening 13th Generation (a.k.a Generation X)1 Revolution Nomad (Reactive) Millennials 1961–1981 Hero/Civic Consciousness Revolution 1982-2003 Culture Wars High but Millennial Generation2 Unraveling Hero (Civic) New Silent 1982–2003? Artist/Adaptive 2001/2004 - Economic Crisis, Crisis Culture Wars Generation present … New Silent Generation 3 Artist (Adaptive) ??? Prophet/Idealist 2004?– present ???? The New World High (peace & Millennial Crisis? Order? prosperity) Source: Howe & Strauss (1991) Media & Technology Use “an increased use and familiarity with communications, media, and digital technologies” “Next Generation” college students…used technology at higher rates than people from other generations: 97% of students owned a computer 94% owned a cell phone 92% of those reported multitasking while Iming 76% of students used instant messaging 56% owned a MP3 player 40% of students used television to get most of their news 34% used the Internet to get their news. This generation spends at least 3.5 hours a day online. Source: Junco & Mastrodicasa (2007) (who conducted a research study of 7,705 college students). Now add: social networks: Facebook, Twitter, Linkedin, etc. What are they doing in class? Facebook Twitter YouTube Online Learning Tools Email Trophy Kids/Sense of Entitlement Used to “no one loses” and everyone gets a "Thanks for Participating" trophy, resulting in a sense of entitlement Have “too great expectations from the workplace and desire to shape their jobs to fit their lives rather than adapt their lives to the workplace” “Assertively seek more feedback, responsibility, and involvement in decision making” Resulting “generation & understanding gap” between older employees and supervisors in the workplace & younger, Millennial employees Communication With Parents College students were frequently in touch with their parents – – Junco and Mastrodicasa (2007) also found that students spoke with their parents an average of 1.5 times a day about a wide range of topics. Anecdotal Characteristics Balance: Demand “balance” -- that work and school fit around their lives & interests – Not ashamed if unprepared in class Multimediative: – Always use multimedia themselves, e.g., Powerpoint, Youtube, video clips, homemade movies – Multitask constantly unless they are actively participating in an exercise, role play, or presentation – Have a very short attention span – Pay attention to video clips and sound bites Peer-oriented: Prefer to interact in groups rather than 1:1 dating – Really excel in projects requiring public presentations of written or oral material Need Direction: Demand more structure and certainty in assignments and schedules Characteristics Celebrate & enjoy diversity Optimistic/realistic Self-inventive/individualistic Rewrite the rules Killer lifestyle (demand work/life balance) Irrelevance of institutions Internet is a given; assume use of communications, media, & digital technologies; multitask fast Nurtured; Sense of Entitlement Collaborative, teamwork & learning Friends = family Gen X v. Gen Y/Millennials Generation X Millennials Born 1965-1976 Born 1977-1998 51 million Millennial 75 million Accept diversity Law Prof Celebrate diversity Pragmatic/practical Optimistic/realistic Self-reliant/individualistic Self-inventive/individualistic Reject rules Gen We Rewrite the rules Killer life Killer lifestyle Mistrust institutions Irrelevance of institutions PC Video Internet Use technology Assume technology Multitask Multitask fast Latch-key kids Nurtured Friend-not family Friends = family Mentoring Do’’ s Mentoring Do’’ s · Casual, friendly work · Structured, supportive work environment environment · Involvement · Personalized work · Flexibility and freedom · Interactive relationship · A place to learn · Be prepared for demands, high expectations Source: The Learning Café and American Demographics enterprisingmuseum 2003. Greatest Assets Work well collaboratively in groups/teams Peer oriented (e.g., use of social networks) Excel in public presentations and real-life exercises (e.g., PR skills assignments) Easily use multimedia in public presentations (e.g., SBA awards presentation, 1L projects) Innovate - sidestep traditional methods and use technology (internet) to achieve goals (e.g., Napster) Demand “balance” of work/life/pleasure Celebrate cultural diversity “Hero/Civicmindedness” qualities The next “Great Generation?” Mentoring Steps To Take With Millennials Give directions and structure and certainty for assignments, samples Explain what to expect, reduce uncertainty and do NOT assign meaningless tasks, do not assign too much (overwhelming, makes them feel incompetent) or too little (makes them feel like you’re wasting their time, which is tight already) Realize they are timepressured, they value work/life balance, they want time for leisure and friends and family, explain when just-in-time learning will work and when it will backfire, so they are prepared Give immediate, regular feedback laced with lots of praise (sandwich critiques between praises) Encourage collaborative, team projects in groups, particularly in diverse groups Encourage their input & presentation in group settings – use weekly staffing of cases Treat them like peers, don’t insist on respect for authority or tradition, but try to fit into a “parent” role with them, since they have great, close relationships with parents Get ready for them to “ask why,” buck tradition, and propose better ways to do things, give them hands-on civic-minded opportunities & meaningful work Be transparent, real, & honest about what’s really going on Use technology and multimedia and multitasking to accomplish the above goals Mentoring Do’’ s Structured, supportive Collaborative, team work learning environment Personalized work Interactive Validate importance of relationships satisfaction, fulfillment Immediate, direct Work/life balance feedback Embrace tech literacy Be prepared for Avoid lecture; demands, high involve/engage expectations Thank you for viewing. All statistical information derived from empirical studies conducted by others. Citations available on request. Comments welcome - please e-mail me at email@example.com
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