LAWYER PERSONALITY, THE FUTURE OF THE LEGAL PROFESSION, & THE COMPREHENSIVE LAW MOVEMENT

1. LAWYER PERSONALITY, THE FUTURE OF THE LEGAL PROFESSION, & THECOMPREHENSIVE LAW MOVEMENT Susan Daicoff Professor, Florida Coastal School of Law Guest Lecture, University of Florida College of Law March, 2010

2. A TRIPARTITE CRISIS Deprofessionalism and incivility Low public opinion of lawyers and the legal system Lawyer distress and dissatisfaction

3. ABA SURVEY - 1993Peter D. Hart Research Associates

4. PUBLIC OPINION POLL - 1991

5. DEPRESSIONAmong Law Students & Lawyers

6. ALCOHOLISMPercentage of Alcoholic Drinkers

7. PSYCHOLOGICAL DISTRESSBeck, 1995-96 2.27%

8. CAREER SATISFACTIONSatisfaction With the Practice of Law

9. GROWING DISSATISFACTION?Summary of ABA/YLD Surveys

10. LAWYER DISTRESS: A Constant 20%?

11. THE “LAWYER PERSONALITY” need for achievement; ambitious under stress pessimism? materialism; value economic bottom-line competitiveness DRIVE TO ACHIEVE “Thinking” MBTI preference aggressive under stress INTERPERSONAL RELATING STYLE “rights” orientation dominance interpersonal insensitivity

12. Testosterone Levels: Lawyers, Blue Collar Workers, and Other Professionals

13. THINKING/FEELING (Myers-Briggs Dimensions - Richard, 1994) Lawyers - Male Lawyers - Female Most Females Most Males

14. “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

15. MORAL ORIENTATION(Gilligan-Based Categories - Weissman, 1994) 17% 22% 33% 43% 35% 50%

16. “ 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

17. 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)

18. 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

19. 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)

20. 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

21. 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

22. 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

23. TRADITIONAL LAW PRACTICE • Competitive • Aggressive • Ambitious • Emphasis on winning (dominance) • Rights-oriented • Logical, analytical • Materialistic, law-as-a-business

24. ATYPICAL LAWYER TRAITS? • “Feeling” Preference on MBTI • Ethic of Care in Moral & Ethical Decisionmaking • Altruistic • Nonmaterialistic • Collaborative • Noncompetitive • Nonaggressive

25. 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

26. 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 Precursors: Why now?

27. Vectors of the ComprehensiveLaw Movement Mindfulness “TJ/PL” Preventive law Holistic justice Therapeutic jurisprudence Creative problem solving Procedural justice Transformative mediation Collaborative law Restorative justice Problem solving courts

28. INTERSECTION of the Vectors • OPTIMIZING HUMAN WELLBEING (harmony, healing, reconciliation, moral growth…) • ”RIGHTS PLUS:” FOCUS ON EXTRALEGAL CONCERNS (needs, goals, beliefs, morals, resources, relationships, community, psychological state of mind …) Preventive law Therapeutic jurisprudence Therapeutically oriented preventive law Drug treatment courts; domestic violence courts; mental health courts Creative problem solving Law & socioeconomics Holisticjustice Transformative mediation Collaborative divorce law Restorative justice Procedural justice

29. SubIntersections • Avoid Interpersonal Conflict & “Hardball” Litigation • Share Equal Power • Collaborative • Therapeutic • Interdisciplinary • Can Be Consistent w/ Lawyers’ Own Morals

30. “Organizational Chart” of the Movement Lenses: Holistic Justice Therapeutic Jurisprudence Traditional/ Adversarial (win/lose – binary) Religious/ Spiritual Preventive Law Creative Problem Solving Procedural Justice Processes: Negotiation/Settlement Collaborative Law Problem Solving Courts Evaluative Mediation Restorative Justice Facilitative Mediation TJ/PL Arbitration Transformative Mediation Preventive Law Litigation & other judicial processes

31. 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

32. Integrated vs. Parallel Question: Parallel Movements • Complementary and Alternative Medicine (CAM) • Montessori Education

33. 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?

34. Advantages & Disadvantages

35. 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

36. An Integrated Model

37. 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

38. 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))

39. 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”

40. 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

41. 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

42. 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

43. CONCLUSIONS • “Lawyer, Know Thyself” • Goodness of Fit Between Personality and Practice • Conscious Development of Comprehensive Law Approaches Along With Traditional Law Practice

44. Mentoring Millennials Susan Daicoff Professor of Law Florida Coastal School of Law

45. 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

46. The State of the Legal Profession (c) Susan Daicoff, 2010.

47. Solutions & Responses 04 06 00 10 06 09 (c) Susan Daicoff, 2010.

48. 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)

49. 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)