chevron-down Created with Sketch Beta.
February 04, 2022 Appellate Issues | Winter 2022

Managing Stress and Strengthening Resiliency: Practical Strategies for Judges and Lawyers

By Jay L. T. Breakstone

I would be less than honest if I didn’t admit that the greatest gifts at an AJEI Summit are those that are unexpected; surprises that you didn’t expect because you never realized you needed them in the first place. The Managing Stress presentation on the opening day of the Summit had a stellar panel, consisting of two jurists from California, Hon. Jeremy D. Fogel (ret.) and Hon. Phyllis Hamilton, Senior Judge, coupled with Prof. Terry A. Maroney, of Vanderbilt Law School. What surprised me was that judges, just like the lawyers who practice before them, suffer from serious stresses, and in areas that most appellate lawyers do not.

Prof. Maroney noted that historically, studies have focused on lawyer well-being rather than judicial well-being. Early studies that looked at stresses on judges did not concentrate on appellate judges, but that is changing, most notably with her own study of the stresses on appellate judges conducted at Vanderbilt. Stresses on appellate judges? How can this be? Isn’t all the stress in the appellate courtroom in front of the bench, rather than behind it? How surprising; the answer is ‘no’. Among appellate judges, Prof. Maroney explained, the areas of stress were cases (“Cases are cases and they reflect what’s broken in the world”), conditions of employment, and colleagues. Appellate judges are now starting their judicial careers earlier and burnout is going to be an issue, cautioned Prof. Maroney. Where does the stress come from? Being the last word on a case weighs heavily on an appellate judge and one can lose sleep over that level of responsibility. The conditions under which appellate judges operate can be isolating, but not for all. “You can become a hermit,” was one comment by a judge, “you know, you really have to fight it.” Judges who come from trial courts may not like the appellate lifestyle; they thought they would, but they don’t. Many appellate judges reported increased levels of professional isolation, missing the daily give and take with lawyers in the trial courts.

Remarkably, Prof. Maroney found that collegiality can be a problem for almost all appellate judges. Some felt that their colleagues disregarded them or “tuned them out.” Other judges experienced a lack of professionalism, for example, bullying. Yet others detected a disengagement in their colleagues, with no productive conversation (“I try to mind my own business,” one judge commented.) As one can expect, COVID has made the situation even worse.

There are notable programs in some appellate courts to address these problems. Judge Hamilton spoke of her work with the Ninth Circuit Wellness Program, established in 1990. It reaches out to provide professional counseling services and wellness support to judges and other court personnel. While born out of negative reports concerning the cognitive abilities of aging judges, it has grown from impairment to wellness. For example, the Program is pro-active in recognizing that judges in the federal system don’t retire that easily, but take Senior Status instead. So the Program now offers a seminar for judges within three years of their Senior Status date to ease the transition.

Judge Foley spoke to the mechanics of how appellate judges must learn to regulate their emotions by acknowledging them when they are negative and describing them in granular detail; by utilizing such modalities as meditation and other stress-reducing instruments; by paying attention to self-care, including rest, relaxation, eating and sleeping well; by practicing gratitude and self-compassion to overcome perfectionism one day at a time; and finally, to maintain a network of honest and supportive relationships.

I found one of the most interesting insights coming from Prof. Maroney’s review of prior studies of judges in which one judge stated: “I’m processing cases, but I don’t seem to fix things.” That this concern—the judge’s self-imposed mission, “to fix things”—was so important struck a chord. As lawyers, many of us harbor that same quiet, private, kernel of purpose. We scarcely discuss it amongst each other and we don’t even speak of it to our families. Yet, we are inculcated with that sense of right and wrong from our earliest days in law school. It may get buried in deeper concepts and technicalities; it may descend lower and lower in ourselves as more and more gets piled on top, but I think most of us would be lying if we said it wasn’t there. This Summit program demonstrated that it’s something we share with our colleagues in the judiciary as well, and that’s a good thing. Bench and bar are allies in seeing that right is done under the most difficult of circumstances. Now, if we could only learn to deal with the stress of that greater mission. 

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

Jay L. T. Breakstone


Jay L. T. Breakstone is General and Appellate Counsel at Parker Waichman LLP in New York. He serves as New York State Chair of the ABA’s Council of Appellate Lawyers and heads up the Appellate Practice Litigation Group of the American Association of Justice. Mr. Breakstone has practiced appellate law for over 45 years and has been lead counsel in well over 300 reported decisions in both state and federal courts.