THINK LIKE A LAWYER TO IMPROVE WELLBEING

It is easy, if increasingly anachronistic, to dismiss the growing conversation around wellbeing in the law. There are more signs than ever that wellbeing is being taken seriously across the legal sector; and those who do not adapt to developing ways of working are going to be left behind. This is because the changes to working practices – on both an individual and organisational level – that are required when one focuses properly on wellbeing, are changes that make a measurable and positive difference. We need to examine the rather ironic fact that lawyers and the legal mindset can be both the cause of, and solution to, the problems of wellbeing that we face at work. On the one hand, it’s the case that many of the unhealthy, dysfunctional aspects of the environment in which lawyers work are the product of the personality traits and decision-making of the very lawyers who create and maintain that environment. After all, it is lawyers who launch, develop and manage law firms and sets of chambers. On the other hand, the rigorous, trained approach to problem-solving deployed by lawyers in their professional capacity is precisely the approach that, if applied to the working environment as it is to case work, would result in decisive and effective changes to much of what has produced one of the most stressful jobs in modern society. There is evidence that demonstrates the importance of wellbeing. And there are ways in which working in the law can challenge our sense of wellbeing; as well as ways to promote best practice both at a personal and organisational level.

WHAT IS WELLBEING?

There is no universal definition of the concept of wellbeing. However, a useful one for present purposes is that wellbeing is ‘being as physically fit as you can be, enjoying life and work, being connected to positive others and retaining an ability to both keep perspective about, and to recover from, difficult times’.

DOES WELLBEING MATTER?

In short, yes. Wellbeing matters not only from an internal personal perspective but from an organisational point of view. Improved wellbeing benefits performance; and as such the project to improve wellbeing is a clear win-win for the employer and the employee. There is a large amount of evidence from research into wellbeing and the workplace. For example, the 2014 report Does Worker Wellbeing Affect Workplace Performance? from the Department for Business Innovation and Skills (DBIS) said about whether wellbeing is good for business: “There is a clear, positive, statistically significant relationship between the average level of job satisfaction among employees at the workplace and workplace performance.” In considering how this relationship manifests itself, there are three key ways in which wellbeing makes a difference. Improvements to wellbeing bring improved workplace performance in profitability (financial performance), labour productivity and the quality of outputs or services. The DBIS found three key mechanisms whereby wellbeing improves performance: — By affecting employees’ cognitive abilities and processes – enabling them to think more creatively and to be more effective at problem solving; — Improved attitudes to work raise the propensity to be co-operative and collaborative; — It improves physiology and general health, meaning fewer days lost to illness and more energy available to use while at work.

INTERNAL RISKS

There are specific personality factors that are more common in lawyers and present increased risks to wellbeing, for example, perfectionism, rumination, self-criticism, and self-motivation. A typical lawyer personality can be something of a perfect storm for wellbeing problems. Professor Laura Epsom from London’s Cass Business School would describe many of us as “insecure overachievers” whose personality traits give us a remarkable level of drive and ambition, while at the same time maintaining a “profound belief in our own inadequacy”. The potent cocktail of determination, high standards and insecurity leads to a lifetime of self-sacrifice in the service of others at potentially huge personal cost to our own health and relationships. 

PERFECTIONISM

Perfectionism is a trait commonly found in lawyers and something that many (me included, for many years) wear as something of a badge of honour, perceiving it to be a key driver behind high quality work output and the drive to improve. But on closer inspection, it can be seen that perfectionism and perfectionists reinforce performance anxiety for themselves and others. Perfectionism is a fundamentally dysfunctional, unreasonable thought process because it is based in the idea that one should be able to perform better at almost every opportunity. James Pereira QC and Zita Tulyahikayo pointed out in their series Stress in Law (published in The Lawyer) that perfectionism “can obstruct your ability to learn from your experiences, because your self-evaluation fails to see the positive or the route to improvement. Instead it is premised on the assumption that you already knew how to perform better (hence the ‘I should have…’) and that you failed in some way by not doing so”. The simplest of changes – make it a ‘could’ rather than a ‘should’ – might serve to unlock the ability to learn, since it allows space to reflect more positively on past performance and find opportunities for future improvement. It is also a more measured, forgiving lens through which to view oneself. It’s also one that better enables a look back to see one’s successes more clearly than failures. This in turn helps unpick the sort of insecurity to which Epsom refers and that drives the unhealthy commitment to over-work.

VICARIOUS TRAUMA

More often than not, a lawyer is required because there is a conflict that needs to be resolved. Working with people in conflict is difficult – and not just for the intuitively obvious reasons relating to the surface level stressors that come when inserting oneself into a combative situation. Quite aside from the unpleasantness to which one is exposed, at a deeper level there are ways that the skills of the job serve to not only make us more effective for clients, but also make us personally more vulnerable. Empathy is a key skill for many lawyers because it enables a deeper level of understanding of our clients and a more effective level of communication with them. However, this can be as much a curse as it is a blessing. For example, clients can and do project onto us the trauma they are experiencing. But the brain’s subconscious response often can’t clearly differentiate between one’s own lived experiences and the reported experiences of others to which one connects empathetically. This means that in a real sense the stories lawyers engage with at work have a direct traumatic impact. Unlike counsellors and psychologists who benefit from clinical supervision and the trained ability to debrief themselves, lawyers do not have institutional support as standard, and we can often feel as though we have to find our own pathway through the fog at the end of a long day.

EXTERNAL RISKS

The list of risk factors that come with our work environment is long and includes things like competition, financial targets and, of course, the chronically underfunded court system itself. Internal competition and financial targets are a common source of stress and anxiety. Dr Alex Michel, who Professor Epsom spoke to as part of her Radio 4 piece Insecure Overachievers, suggests that the working environment lawyers have created for ourselves in the institutions we have started and maintained is one that serves to take advantage of the sorts of personality traits discussed above by misapplying methods like target setting. She said: “Firms create the ideal environment for exploiting insecure overachievers by combining internal competition with a lack of transparency: you know you are being directly measured against your colleagues and the reward at the end of the year depends on your evaluation in relation to those others. But you don’t know how well they are doing – you can just see them ‘working super hard’. The result? ‘You set yourself incredibly high standards in the hope that you win out’.” Furthermore, there is a degree of irony noted by Michel, who observes: “When you ask who designs these cultures, there is no designer … and that’s the tragic thing… There is no power being exerted from above.” This is the result of lawyers moving from the confines of legal casework into the realm of business and the employment of others, and of the human tendency to surround oneself with similar personalities. Thus, we have baked our dysfunctional tendencies into the way we work at a micro and macro level; and we have done so more by accident than by design. This is a situation that has so far received too little deliberate, focused attention.

BALANCING ACT

It can be difficult to maintain barriers between work and personal life. Work mobile phones are ubiquitous and clients can access us via our mobiles, through text, email and sometimes social media. Saying “No” can prove difficult especially when the stakes are high. It’s easy to feel as though a person’s future is in your hands – and so the temptation is to give them everything. The downside is that there may be nothing left for you and your own family. It is important to find a professional persona: one that enables you to keep a suitable distance from the material dealt with at work; and enables it to be left at work as much as possible so that it doesn’t impose too much on the rest of your life. There are a number of personal and organisational changes you can make, particularly:

PERSONAL CHANGES

— Plan for dealing with difficult content – eg diarise time to rest and recharge after a difficult client conference or after reviewing difficult evidence.

— Get to know yourself and what works for you – give yourself permission to relax and be kind to yourself.

— Develop a professional persona and try to switch off – eg use a delayed delivery function to keep communication with clients within office hours.

— Keep in mind the New Economics Foundation’s five key wellbeing factors, and try to do even one small thing each week to tick each of the boxes: connect to other people, be physically active, take notice of the world and the present, keep learning, give back to others. Happily, legal sector jobs satisfy many of these.

— Connect and work with other people – it’s easy to underestimate the value of simply talking and sharing the load (including talking about wellbeing itself and having it as an ongoing part of the workplace dialogue).

ORGANISATIONAL CHANGES

— Protect yourself and your employees, for example, develop a formal wellbeing policy, buy into an employee assistance programme scheme, and set up a network of mentoring.

— Identify and or develop reward programmes for employees, including revisiting the way in which targets are set.

— Review and develop your work culture – can people at your firm have the sorts of open conversations they need to have about how they feel, or does the work culture not permit it?

— Find third party organisations to work with to make changes, such as the charity Mind, which offers a number of services to help organisations develop better policies and practices.

THINK LIKE LAWYERS

We can see, to a large extent, how we may have created the problems of wellbeing we face, albeit in rather an accidental fashion (by working too hard, putting too much pressure on ourselves and others, and setting unrealistic, unhealthy levels of expectation across the entire sector). But we can also solve the problem by thinking like lawyers are supposed to. If we are making reasoned, evidence-based decisions with a view to finding the best available solution to a problem, then the need to focus on wellbeing and make the necessary changes is unavoidable. The evidence base – which, after all, is what we as lawyers are supposed to make decisions based upon – clearly shows the way to effect positive change is not to work harder but to change our approach to work, to work smarter. Working fewer hours can actually increase productivity if that working time is more efficient. Happier and healthier people are more productive and have better ideas, make fewer mistakes, and are less likely to be absent due to illness. This means better and quicker outcomes for clients and an increased capacity to take on other cases. There is no downside. On the other hand, unhappy and unhealthy people are less productive, generate worse ideas and arguments, make more mistakes and are more likely to be off work due to illness. That means worse and slower outcomes for clients, a higher risk of negligence claims and appeals, and the inability to expand one’s offering to more clients.

As we so often advise our clients, it’s all about what choices we have – and which ones we are going to make.