Wellbeing in the law – an oxymoron? Not if you think like a lawyer
It is easy, albeit increasingly anachronistic, to dismiss the growing conversation around wellbeing in the law. There are more and more signs that wellbeing is being taken seriously across the legal sector and those who do not adapt to the developing ways of working are going to be left behind. This is because, ultimately, the changes to working practice on both an individual and organisational level that are required when one focuses properly on wellbeing are changes that make a measurable, positive difference.
This article sets out to examine the rather ironic fact that lawyers and the legal mindset can be both the cause of, and the solution to, the problems of wellbeing that we face at work. On the one hand, it is certainly the case that many of the unhealthy, dysfunctional aspects of the environment lawyers work within are the product of the personality traits and decision-making of the very lawyers who create and maintain that environment. It is lawyers, after all, 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 not only to the case work but also to the working environment, would result in decisive and effective changes to much of what has produced one of the most stressful jobs in modern society.
I will start with a brief look at the concept of wellbeing and the evidence demonstrating its importance, before moving on to focus on the 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. Finally I will highlight some further resources.
What is wellbeing?
There is no universal definition of the concept but 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 now a large amount of evidence from research into wellbeing and the workplace. For example, the Department for Business Innovation & Skills’ 2014 report ‘Does Worker Wellbeing Affect Workplace Performance?’ had this to say 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 it is that 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. First, by affecting employees’ cognitive abilities and processes - enabling them to think more creatively and to be more effective at problem-solving. Second, improved attitudes to work raise the propensity to be co-operative and collaborative. Third, it improves physiology and general health, meaning fewer days lost to illness and more energy available to use whilst at work. I will return to the research in more detail at the end of the article.
Internal risks to wellbeing
There are specific personality factors that are more common in lawyers and increase 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, for example, from London’s Cass Business School, would describe many of us as ‘insecure overachievers’, whose personality traits give us both a remarkable level of drive and ambition, whilst 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
Looking in more detail at perfectionism, for example, as a trait commonly found in lawyers, this is something that many (myself included, for many years) wear as something of a badge of honour, perceiving it as a key driver behind high quality work output and the drive to improve. On closer inspection, however, 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.
As has been pointed out by James Pereira QC and Zita Tulyahikayo in their excellent series ‘Stress in Law’, published in The Lawyer, 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 much more measured, forgiving lens through which to view oneself, and one that therefore is also more prone to enabling a look back that sees the successes more clearly than the failures. This, in turn, helps unpick the sort of insecurity to which Epsom refers and which drives the unhealthy commitment to over-work.
Empathy and vicarious trauma
More often than not a lawyer is required in a situation because a conflict exists and 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 to also make us more vulnerable personally.
Empathy is a key skill for many lawyers because it enables a deeper level of understanding of, and a more effective level of communication with, our clients. However this can be as much of a curse as it is a blessing. For example, clients can and do project onto us the trauma which they are experiencing and the brain’s sub-conscious response often cannot clearly differentiate between one’s own lived experiences and others’ reported experiences to which one connects empathetically, meaning that in a real sense the stories lawyers engage with at work have a direct traumatic impact. Unlike counsellors or 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 to wellbeing
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.
Competition and targets
Internal competition and financial targets are a common source of stress and anxiety. Dr Alex Michel, who was spoken to by Professor Laura Epsom as part of her Radio 4 piece ‘Insecure Overachievers’, suggests that the working environment we 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:
‘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 that “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 to date has received too little deliberate, focused attention.
The personal / professional barrier
It can be really difficult to maintain barriers between working life and personal life. Work mobile phones are ubiquitous and clients can now access us via our mobiles, through text, email and sometimes even social media and saying no can prove difficult, especially when the stakes are high. It’s easy to feel as though a person’s future or is in your hands and so the temptation is to give them everything. The downside to that can be that there is nothing left for you and your own family. It is important to find a professional persona, one that enables a suitable distance to be kept from the material dealt with at work and that enables it to be left ‘at work’ as much as possible, so that it does not impose too much on the rest of one’s life.
Personal and organisational changes you can make
Personal
· Plan for dealing with difficult content, for example diarise some time to rest and recharge after a difficult client conference or after reviewing particularly 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 – for example a tip for keeping communication with clients within office hours is to use a delayed delivery function.
· Try to keep in mind the New Economics Foundation’s 5 key wellbeing factors, and try and do even just a small thing each week to tick each of the 5 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, but often not all of them!
· Connect and work with other people – it is easy to underestimate the value of simply talking to others and sharing the load (including talking about wellbeing itself and having it as an ongoing part of the workplace dialogue)
Organisational
· Protect yourself and your employees, for example by developing a formal wellbeing policy, buying into an Employee Assistance Programme scheme, and setting up a network of mentoring
· Identify and/or develop reward programmes for employees, including by 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 that 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. The charity Mind, for example, offers a number of services to organisations to develop better policies and practices
Conclusions
I would suggest that whilst we can see to a large extent the way we may have created the problems of wellbeing that 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, 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 that the way to effect positive change is not to work harder but to change our approach to work; work smarter. Working fewer hours can actually increase productivity if the working time is more efficient.
Happier and healthier people are more productive, have better ideas, make fewer mistakes, and are absent due to illness less often. Work that’s more efficient and more effective means better, 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 off work due to illness more often. 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.
Thus, as with so many things, and as we so often we advise our clients, it is all about what choices we have, and which ones we are going to make.
Matthew Richardson is a family law barrister at Coram Chambers, London.
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Wellbeing resources
Law Care
A legal sector charity that offers, among other things, free therapeutic support to lawyers: https://www.lawcare.org.uk/
Mind
One of the UK’s leading mental health charities offers accreditation to organisations for their workplace wellbeing policies: https://www.mind.org.uk/workplace/mental-health-at-work/
Employee Assistance Programmes
A number of providers offer a policy that covers a whole organisation and gives all employees free, confidential access to therapeutic support.
Wellbeing at the Bar
A remarkable resource in terms of the information, templates & other materials that are collected together, and that will benefit all lawyers, not just barristers: https://www.wellbeingatthebar.org.uk/
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Citations and links
The Department for Business Innovation & Skills’ 2014 report ‘Does Worker Wellbeing Affect Workplace Performance?’ is found here:
https://www.gov.uk/government/publications/worker-wellbeing-and-workplace-performance
The New Economics Foundation’s paper Five Ways to Wellbeing is found here:
https://issuu.com/neweconomicsfoundation/docs/five_ways_to_well-being?viewMode=presentation
Professor Laura Empson’s programme Insecure Overachievers is reviewed here:
James Pereira QC and Zita Tulyahikayo’s content is from Part 2 of their series ‘Stress in Law’, published in The Lawyer:
https://www.thelawyer.com/stress-in-law-part-2-seven-simple-steps-to-make-things-better/