LAWYER PERSONALITY, THE FUTURE OF THE LEGAL PROFESSION, & THECOMPREHENSIVE LAW MOVEMENT
Susan DaicoffProfessor, 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 - 1993Peter D. Hart Research Associates
19%22%36%
63%
40%
78%
45%
7%16%
0%20%40%60%80%
1993 Peter D. Hart Survey
Caring and Compassionate Honest and EthicalConstructive Part of Community Make Too Much MoneyAre Greedy Charge Excessive FeesLack Necessary Ethics Not Honest or EthicalLiked Own M.D. Liked Own AttorneyDisliked Own M.D. Disliked Own Attny
PUBLIC OPINION POLL - 1991
22%
62%
50%
35%
24%20%
16%12%
6%
0%
10%
20%
30%
40%
50%
60%
70%
High Honesty or Ethical Standards
Lawyers
Pharmacists
Doctors, College Teachers, Clergy,Dentists, Engineers
Funeral Directors, Bankers,Journalists
Newspaper Reporters
Building Contractors
Realtors
Advertisers
Car Salesmen
DEPRESSIONAmong Law Students & Lawyers
10%
32%
40%
17.90% 19%
9% 9% 9% 9% 9%
0%5%
10%15%20%25%30%35%40%45%
PreLaw 1st Year 3rd Year 2 YrsPostGrad
0-78 Yrs ofPractice
Lawyers General Population Maximum
ALCOHOLISMPercentage of Alcoholic Drinkers
18%
9%
0%
2%
4%
6%
8%
10%
12%
14%
16%
18%
Lawyers General Population
PSYCHOLOGICAL DISTRESSBeck, 1995-96
18%
30%
21%
7%10%
27%
16%11%
0%5%
10%15%20%25%30%
Male Lawyers Female Lawyers GeneralPopulation
Global Distress AnxietyDepression Paranoid IdeationInterpersonal Sensitivity Social Isolation & AlienationObsessive-Compulsiveness Hostility
2.27%
CAREER SATISFACTIONSatisfaction With the Practice of Law
21.20%51.20%
20.60%
6.90%
Very Satisfied
Somewhat Satisfied
SomewhatDissatisfiedVery Dissatisfied
GROWING DISSATISFACTION?Summary of ABA/YLD Surveys
3%
12%
5%
14%
7%
17%
0%
10%
20%
30%
1984 1990 1995
SomewhatDissatisfiedVery Dissatisfied
LAWYER DISTRESS: A Constant 20%?
0%
5%
10%
15%
20%
25%
30%
Depression Alcoholism Psych.Distress
Dissatisfaction
All LawyersGeneral Population
THE “LAWYER PERSONALITY”
competitiveness
materialism; value economic bottom-line
need for achievement; ambitious under stress
interpersonal insensitivity
“Thinking” MBTI preference
“rights” orientationdominance
aggressive under stress
DRIVE TO ACHIEVE
INTERPERSONAL RELATING STYLE
pessimism?
Testosterone Levels: Lawyers, Blue Collar Workers, and Other Professionals
20.427.4
90
010
20
30
40
50
60
70
80
90
Professionals Blue CollarWorkers
Professionals
Lawyers
Blue CollarWorkers
THINKING/FEELING (Myers-Briggs Dimensions - Richard, 1994)
81%
19%
60%
40%ThinkingFeeling
35%
65%
66%
34%
Lawyers - Male Lawyers - Female
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)
Female Lawyers
Ethic of CareRights OrientationBalanced
Male Lawyers
Ethic of CareRights OrientationBalanced
33%
17%
50%
22%
35%
43%
“ 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 LawyersPreference 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-Enlightenment philosophical values (connectedness, community, globalization)
End of the Cold War (them vs. us mentality)
Tripartite crisis in legal profession
Societal overuse of litigation to solve problems
Influx of diverse individuals into legal profession
Vectors of the ComprehensiveLaw Movement
Therapeutic jurisprudence
Restorative justice
Holistic justice
Problem solving courts
Procedural justice
“TJ/PL”
Creative problemsolving
Collaborative law
Transformativemediation
Preventive law
Mindfulness
INTERSECTION of the Vectors
Therapeutic jurisprudence
Restorative justice
Holistic justice
Drug treatment courts; domestic violence courts;
mental health courts
Procedural justice
Therapeutically oriented
preventive law
Creative problemsolving
Collaborative divorce law
Transformativemediation
Law &socioeconomics
Preventive law1. OPTIMIZING HUMAN
WELLBEING (harmony, healing,
reconciliation, moral growth…)
2. ”RIGHTS PLUS:” FOCUS ON
EXTRALEGAL CONCERNS (needs, 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
Therapeutic Jurisprudence
Creative Problem Solving
Holistic Justice
Lenses:
Processes:Collaborative Law
Restorative Justice
Preventive LawLitigation & other judicial processes
Facilitative Mediation
Transformative Mediation
Evaluative Mediation
Arbitration
Procedural Justice
Problem Solving Courts
TJ/PL
Religious/
Spiritual
Traditional/
Adversarial
(win/lose – binary)
Negotiation/Settlement
Preventive Law
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 & DisadvantagesIntegrated ParallelUniversal
Mainstreamed
CLP becomes a “best practice”
Equal access to all services
Specialized
Better delivery of CLP services
Obstacles
Need for retraining
Misuse
Paternalism
“Ups” malpractice standard
Marginalization
Lower fees to lawyers
Unequal access to traditional & CLP services
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 – Boldt & 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
00
06
06
09
10
(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)
The Last Century & 6 Generations
G.I. Generation Hero (Civic) 1901–1924 World War I/Prohibition
Silent Generation Artist (Adaptive) 1925–1942 Great Depression/World War II
Millennial Saeculum (baby) Boom Generation Prophet (Idealist) 1943–1960 Superpower America
13th Generation(a.k.a Generation X)1
Nomad (Reactive) 1961–1981 Consciousness Revolution
Millennial Generation2
Hero (Civic) 1982–2003? Culture Wars
New Silent Generation 3
Artist (Adaptive) 2004?– present Millennial Crisis?
Generation Type Birth Years Historical Time Period
Greatest or GI Generation
Hero/Civic 1901-1924 WWI & Prohibition
High but Unraveling
Silent Generation
Artist/Adaptive 1925-1942 Great Depression & WWII
Crisis
Baby Boomers Prophet/Idealist 1943-1960 Superpower America
High (peace & prosperity)
Generation X Nomad/Reactive 1961-1981 Consciousness Revolution
Awakening
Millennials Hero/Civic 1982-2003 Culture Wars High but Unraveling
New Silent Generation
Artist/Adaptive 2001/2004 - present
Economic Crisis, …
Crisis
??? Prophet/Idealist ???? The New World Order?
High (peace & 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
Born 1965-197651 million
Accept diversityPragmatic/practicalSelf-reliant/individualisticReject rulesKiller lifeMistrust institutionsPCUse technologyMultitaskLatch-key kidsFriend-not family
Mentoring Do’s�· Casual, friendly workenvironment· Involvement· Flexibility and freedom· A place to learn
Millennials
Born 1977-199875 million
Celebrate diversityOptimistic/realisticSelf-inventive/individualisticRewrite the rulesKiller lifestyleIrrelevance of institutionsInternetAssume technologyMultitask fastNurturedFriends = family
Mentoring Do’s�· Structured, supportive workenvironment· Personalized work· Interactive relationship· Be prepared for demands, highexpectations
Source: The Learning Café and American Demographics enterprisingmuseum 2003.
Video
Gen We
Millennial Law Prof
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
workenvironment
Interactive relationships
Immediate, direct feedback
Be prepared for demands, highexpectations
Collaborative, team learning
Personalized work Validate importance of
satisfaction, fulfillment Work/life balance Embrace tech literacy Avoid lecture;
involve/engage
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 protected]