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 LawMarch, 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, EngineersFuneral Directors, Bankers,JournalistsNewspaper 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

0102030405060708090

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 MediationTransformative

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 DEVELOPMENTEvery lawyer/judge does it

PARALLEL DEVELOPMENTSpecialized lawyers/courts/legal educators do it

– in boutique law firms, specialized courts, departments of larger firms, elective courses

HYBRID/BOTH?

Advantages & DisadvantagesIntegrated ParallelUniversalMainstreamedCLP becomes a “best practice”Equal access to all services

SpecializedBetter delivery of CLP services

ObstaclesNeed for retrainingMisusePaternalism“Ups” malpractice standard

MarginalizationLower fees to lawyersUnequal 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 DaicoffProfessor of LawFlorida Coastal School of Law

The State of the Legal Profession During the Millennials’ Lifetimes

Deprofessionalism and incivilityLow public opinion of lawyers and the legal systemLawyer distress and dissatisfactionRising unemploymentInstability in law firms and clientsChanging 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 XBorn 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

MillennialsBorn 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 sdaicoff@fcsl.edu