The question of burnout in the legal profession, as in many other high-stress professions, has been explored and remains a serious concern as it impacts the health and well-being of lawyers and can significantly compromise job satisfaction, effectiveness, and one’s livelihood. As greater attention is given to the complexities surrounding mental health and well-being within the legal profession, another concern now being explored more fully is compassion fatigue, also known as vicarious trauma and secondary traumatic stress. A 2017 ABA Journal article addressing compassion fatigue describes it as “the cumulative physical, emotional and psychological effect of exposure to traumatic stories or events when working in a helping capacity, combined with the strain and stress of everyday life” (tinyurl.com/y2z4dhm5). As members of a helping profession, we lawyers will find ourselves working with clients and on matters for which there is great emotional strain. This is in addition to the stress experienced by the demands and responsibilities of the case, client, opposing parties, judge, and family. Some areas of law practice are steeped in trauma and suffering, while others touch these raw areas from time to time.
To gain greater insight into this important subject, we spoke with Judge Jeremy Fogel, executive director of the Berkeley Judicial Institute, for his thoughts on compassion fatigue and its impact on lawyers and our profession. Judge Fogel has spent much of his career with a front-row seat to the drama of human experience, sensitive to the toll it can take on all involved, including lawyers and judges, and deeply invested in helping not only to resolve legal matters, but also to heal the parties and serve the larger community. From 1981 to 1998 he was a judge for the municipal court and superior court of Santa Clara County, California, after which he was appointed to the federal bench and served as director of the Federal Judicial Center (FJC) from 2011 to 2018. In his capacity as director of the FJC, he significantly elevated judicial awareness of mindfulness and of the importance of mindfulness practices to the well-being of judges and lawyers. His interest was borne out of his own direct experience learning about and practicing mindfulness.
GPSolo: What are some of the contributing factors to compassion fatigue?
Fogel: Compassion fatigue occurs when we encounter situations that engage our compassion and empathy more than our available attention and emotional resources can handle. When this happens, we may feel frustrated, overwhelmed, or even impatient or resentful toward people for whom we ordinarily might feel compassion.
GPSolo: What are some of the signs of compassion fatigue?
Fogel: Frustration, exhaustion, a negative view of human nature, impatience toward others.
GPSolo: What are your thoughts on the claim that it is a sign of weakness for lawyers to be compassionate or feel compassion for a client, opposing counsel, or even themselves?
Fogel: Compassion is an inherent human trait, and denying or suppressing it can be harmful both to one’s relationships with others and to one’s own emotional health. Each case and set of relationships in the life of a lawyer is different, and undoubtedly there are situations in which a lawyer might choose to take a strong stance in favor of a client. But the critical point is that this is a choice. One’s capacity for compassion is part of one’s ability to perceive reality and make thoughtful decisions.
GPSolo: What are some things we can do if we are experiencing compassion fatigue?
Fogel: The most effective antidote to compassion fatigue is self-care: noticing the signs of compassion fatigue in oneself, taking breaks, talking through problems with a trusted friend or colleague, and doing things (such as physical exercise, spending time with loved ones, practicing mindfulness) that restore one’s equanimity and sense of well-being.
GPSolo: Is there anything we can do to help inoculate ourselves from experiencing compassion fatigue?
Fogel: As members of a problem-solving profession, lawyers need to remember that they can’t solve every problem, and that they are most helpful to others when they can be present and attentive. It is appropriate to want to do our best, but it is unrealistic to think that we can do everything perfectly.
GPSolo: In your role as a judge, what are things you have found to be effective in helping others who may be experiencing compassion fatigue?
Fogel: Reminding them of the importance of self-care and the personal costs of denying or suppressing painful emotions that may arise in connection with their work. Providing opportunities for judges to talk openly about their experiences.
GPSolo: In reminding us of the importance of self-care and ways we can practice it, you mention practicing mindfulness. Why is it that practicing mindfulness can be helpful?
Fogel: Practicing mindfulness is an effective way of growing one’s ability to be present and attentive and of reducing one’s likelihood of being hijacked by emotion. It also is helpful in establishing a healthier baseline so that one notices the effects of compassion fatigue and other forms of chronic stress and can take steps to deal with them.
GPSolo: You have done a great service to our profession by writing and speaking about mindfulness and including mindfulness programs in numerous judicial conferences across the country, thereby introducing it to thousands of judges and lawyers. You also practice mindfulness and have for many years. Would you share with us an instruction for a mindfulness practice that you think readers would find helpful, especially when immersed in a matter that can take an emotional toll?
Fogel: I practice a very simple form of mindfulness meditation based on the Mindfulness-Based Stress Reduction (MBSR) program developed by Jon Kabat-Zinn. It involves focusing attention on one’s breathing for some period of time—most often for 20 minutes. In addition to trying to do this with some regularity, I also find it very helpful when I notice myself struggling. I remember a particular instance when I was about to give a presentation to a large audience and discovered that I had misplaced my driver’s license and might have trouble flying back home. I was worried and very distracted, and I knew that this would make my presentation less effective. I meditated for 15 minutes and allowed the emotions to come and go. After that, I had much more attention for the presentation, and it went well.
GPSolo: Any general thoughts you’d like to share?
Fogel: I am very hopeful when I see signs that the legal and judicial professions are beginning to take the emotional impact of their work more seriously.
We are grateful to Judge Fogel for taking the time to share his thoughts on compassion fatigue and to offer us guidance as we navigate the challenging, stressful, and emotionally taxing profession in which we toil, day by day. So many of us have joined the profession to do good and help others resolve disputes and find greater ease amid chaotic life experiences, tragedies, and the stuff of our human existence. As time passes, we can find ourselves emotionally and physically depleted, with the quality of our work and well-being severely compromised. As Judge Fogel notes, compassion fatigue is treatable, and there is much we can do to inoculate ourselves or lessen the toll it can take on our lives.