May 06, 2020 Opening Statement

Best Thinking in Worst-Case Scenarios: Improving Decision-Making under Stress

Our profession is an honorable calling, but also one that can take an extraordinary personal toll.

Barbara J. Dawson

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Attorneys are more resilient than most of the population, correct? No. Wrong. We are less resilient.

That was the opening question asked by Dr. Diana Uchiyama, JD, PsyD, CAADC, who gave a presentation entitled “Best Thinking in Worst-Case Scenarios: Improving Decision-Making Under Stress” at a recent ABA Section of Litigation leadership meeting. If you answered that question incorrectly, you are in good company. The majority of the audience of more than 200 litigation leaders from across the country answered it incorrectly too.

So, with this fragility of attorneys in mind, what are litigators to do to maximize their success under stress? Fortunately, “Dr. Diana” answered that question too. I share the highlights here and offer the entirety of her presentation to you at http://bit.ly/38TpEhl.

Starting with the concept that “anatomy is destiny,” Dr. Diana explained that it all begins with fundamental brain behavior. She warned of the potential for “amygdala hijacking” under stress, meaning that we are all susceptible to challenges with critical thinking when anger, fear, or other high emotions come into play. Under such circumstances, we all have to rise above the tendency to react with basic low-level reflexes of “flight, fight, or freeze.” In other words, we all have to train ourselves to do better than simply react to stress with the judgment of our basic-function “reptilian brain.”

The good news is that we can drastically improve our ability to deal with decision making under stress by taking deliberative steps in the moment. And our ability to better take deliberative steps under stress improves if, in general, our physical and mental well-being are strong. In other words, we can improve our decision making under stress with (1) situational mindfulness and (2) better wellness self-care in general.

Dr. Diana’s analysis resonates because good litigators take performance preparation seriously—for example, focusing on both specific facts and law applying to a particular case and, more broadly, knowing the general venue, parties, and subject matter relevant for the “performance.” Consistently, it is logical that we benefit from understanding what sharpens our mental “performance” ability both in the short term and, more broadly, when under stress.

For best short-term functioning under stress, Dr. Diana reminds us that a simple pause—or break to think between stimulus and response—is key. Whether you think of this pause as “mindfulness” or more like a “time-out” chair, you get the idea. Stop, look, listen—and pause to think—to overcome amygdala hijacking in the moment.

More broadly, Dr. Diana reminds us that resiliency can be increased by sustained self-care. Apparently, there is no shortcut to what we all know we should do to keep our instrument in top shape—physical, mental, and social well-being are key.

Much has been written on this broader issue of general well-being since recent studies have shown attorney vulnerability to alcohol and other substance disorders, as well as mental health issues, to be well above that of the general population and other highly educated professionals. The 2019 landmark study of the ABA Commission on Lawyer Assistance Programs in conjunction with the Hazelden Betty Ford Foundation spotlights the challenges. For information on this report as well as well-being resources, see the website of the National Task Force on Lawyer Well-Being at https://lawyerwellbeing.net.

For involvement in these issues as they pertain to litigations, consider joining the work of the ABA Section of Litigation Mental Health and Wellness Task Force. This innovative group, led by Richard Gaal and Lara White, brings positive programming and resources to litigators at https://ambar.org/ltwellness.

As litigators, we have chosen a path of carrying the stress of others in high-pressure circumstances. I believe our profession to be an honorable calling but also one that can take an extraordinary personal toll. I thank Dr. Diana Uchiyama for the good reminder that critical thinking under stress requires both mindfulness in the moment and sustained self-care more generally. May we all build our resiliency by following her good advice.

Barbara J. Dawson

The author is chair of the Section of Litigation and a partner with Snell & Wilmer in Phoenix.