A lawyer’s conduct should conform to the requirements of the law, both in professional service to clients and in the lawyer’s business and personal affairs. . . . A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.
Model Rules of Pro. Conduct Pmbl. & Scope.
Lawyers “should conform” and “should demonstrate respect,” as the above excerpt from the preamble to the Model Rules of Professional Conduct states. Yet this can be an aspirational goal of conduct as lawyers are human, and the work is adversarial in nature and can be incredibly challenging. Demonstrations of respect and courteousness for the legal system and those who serve it can have limitations. Raising a voice to a client, derogatory speech to opposing counsel, and curt comments to a colleague are forms of discourteous interactions that can have professional consequences stemming from internally unaddressed areas of personal concern.
One factor in particular that exacerbates this situation is prudent pessimism. “In law . . . pessimism is considered prudence.” Robert Lee Hotz, Except in One Career, Our Brains Seem Built for Optimism, Wall St. J. (Nov. 9, 2007). This quote by positive psychology researcher and pioneer Martin Seligman encapsulates his finding that an optimistic outlook benefits all professions regardless of talent—except for lawyers. Lawyers, as Seligman found in his research, benefit from a pessimistic explanatory style; different from seeing a “glass half empty,” a pessimistic explanatory style means interpreting the causes of negative events in stable, unchangeable ways. Martin Seligman et al., Why Lawyers Are Unhappy, Deakin L. Rev. (2005). In fact, this style of thinking allows lawyers to plan for success in their work. However, it is hard to contain pessimism to the boundaries of the workday and prevent it from bleeding into other areas of a legal professional’s life, including morphing into discourteousness.
Due to prudent pessimism, discourteousness can be a trap in which lawyers find themselves ensnared, but there is promise of addressing it and reining it in.
Optimists experience less depression and less anxiety, save more for retirement, are more resilient in the face of adversity, are less likely to smoke cigarettes and experience drug or alcohol use disorder, and enjoy better health overall with improved quality of life. Soudabeh Marin et al. Associations Between Optimism, Tobacco Smoking and Substance Abuse Among Iranian High School Students, 9 Health Promotion Persps. 279–84 (2019); Heidi Grant & E. Tory Higgins, Optimism, Promotion Pride, and Prevention Pride as Predictors of Quality of Life, 29 Personality & Soc. Psych. Bull. 1521–32 (2003).
By contrast, pessimists are not as fortunate. Pessimism presents as mental and emotional health and substance use concerns. Multiple studies find “[s]ubstantial rates of behavioral health problems,” with significantly higher rates of depression, anxiety, and alcohol use disorder in lawyers—the consummate pessimists—compared to the general population. Patrick R. Krill et al., The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, 10 J. Addiction Med. 46–52 (2016). For lawyers under 30 years of age, the rate of problem drinking based on volume of alcohol and frequency of use is nearly five times greater than that of the general population (31.9 percent vs. 6.4 percent).
What explains the unique qualities of the legal profession that prevent an optimistic outlook? The answer can be found beginning with the first semester of law school and then through the cultivation of a legal career that hones pessimism as an asset.
In undergraduate school, prelaw students endorse the positive character strengths of curiosity, love of learning, judgment, and fairness. Margaret L. Kern & Daniel S. Bowling, Character Strengths and Academic Performance in Law Students, 55 J. Rsch. in Personality 25–29 (Apr. 2015). These character strengths are important for entrance into law school, but once students are there, those strengths do not improve academic success. Once in law school, students with a pessimistic explanatory style academically outperform optimistic students. In short, being a pessimist is not only cultivated academically in law school but is also rewarded academically with higher grade-point averages and law journal success. Paul R. Verkuil et al., Countering Lawyer Unhappiness: Pessimism, Decision Latitude and the Zero-Sum Dilemma (Sept. 28, 2000).
Further, a four-year study of law school students spanning prelaw through alumni status found that law school students, before entering law school, did not have excessive levels of depression or anxiety that set them apart from other students. G. Andrew H. Benjamin et al., The Role of Legal Education in Producing Psychological Distress Among Law Students and Lawyers, 11 L. & Soc. Inquiry 225–52 (2018). Within the first semester of the first year and continuing into the third year of law school, these same students developed significant levels of psychological distress that persisted after law school and into their practice. When compared to medical students, law students developed significantly more distress. This led the authors and other researchers thereafter to conclude that the pressures of law school—the high workloads, high expectations, fierce competition, and little time for sleep or focus on interpersonal skills—were inculcating students to become anxious and depressed professionals. Nearly 40 years after this empirical study’s findings, a national survey on law student well-being was launched and found that 18 percent of the more than 5,400 respondents had been diagnosed with depression since starting law school (research shows that depression rates increase in the third year compared to the first year of law school), and 22.5 percent had been diagnosed with anxiety since starting law school. David Jaffe et al., ‘It Is Okay to Not Be Okay’: The 2021 Survey of Law Student Well-Being, 60 Univ. Louisville L. Rev. 441 (2021) (Am. Univ. Wash. Coll. L. Research Paper No. 2022-08).
This phenomenon continues after law school, when lawyers are firmly in the profession: in a study of more than 3,800 lawyers responding to questions about their mental health and well-being, a third cited depression, nearly two-thirds cited anxiety, and nearly three-quarters said that the legal profession has had a negative effect on their mental health over time. Lizzy McLellan, Lawyers Reveal True Depth of Mental Health Struggles, Law.com (Feb. 19, 2020). Depression and anxiety can lead to disillusionment in lawyers who feel that they are no longer capable of serving the profession well.
Whether lawyers’ personalities are shaped by law school or lawyers have inveterate personalities that attract them to the law, these traits enhanced by pessimism can strengthen their professional work—but there must be a time to turn it off.
Focusing on issue-spotting and foreseeing avoidable potential calamity in a legal case are prudent for practicing lawyers and breed success in the practice of law. But through the honing of these skills, legal professionals are suffering in silence with pessimistic viewpoints persisting beyond work and morphing into depression, anxiety, problem drinking, and discourteousness. According to Seligman, “Lawyers are trained to be aggressive, judgmental, intellectual, analytical and emotionally detached. This produces predictable emotional consequences for the legal practitioner: he or she will be depressed, anxious and angry a lot of the time.” Martin Seligman, Why Are Lawyers So Unhappy?, Laws. with Depression (Sept. 20, 2016).
Prudent pessimism fuels a lack of sympathy and empathy with clients and colleagues, supersedes a lack of healthful coping, and promotes angry and adversarial interactions within and outside of the profession. It can be the impetus behind reactivity (angry outbursts), irritability, agitation, distractedness, general discourteousness, and a preoccupation with negative outcomes and worst-case scenarios as symptoms of unresolved work-related stress, depression, and anxiety. The practical consequence is rudeness with clients, irritability with colleagues, and oration in court that has a disrespectful and discourteous tone.
Preparing for catastrophes and worst-case scenarios taps into an adaptive evolutionary function of human survival: the negativity bias. Amrisha Vaish et al., Not All Emotions Are Created Equal: The Negativity Bias in Social-Emotional Development, 134 Psych. Bull. 383–403 (2008). Our ancestors were destined to be eaten by tigers and bears if they did not have a pessimistic explanatory view of what was awaiting them in the woods. To survive, they had to hone their negativity bias and look for danger and catastrophes. Thus, while there is generally not a great deal of danger in our daily lives, focusing on the negative in the profession, looking for legal catastrophes, and issue-spotting for worst-case scenarios all reignite the negativity bias that primes us for attack. Therefore, irritability, agitation, and angry outbursts are not only stress responses—they are also attacks against a perceived enemy fueling dominance and survival. (This is something to consider the next time that a colleague is shouting down a client or a fellow attorney.)
With little control over the outcomes of the work, and exceedingly high pressure to inject perfectionism into their work, lawyers are challenged to confine their pessimistic views professionally. The result is that negative thinking and incivility spill out into collegial and personal relationships outside of the direct practice of law.
Discourteous, irritable, and angry behavior ceases to serve the public well and does not serve the lawyer effectively either. These are signs that can point to underlying depression, anxiety, and stress-related disorders or can result in problematic drinking. But to give up pessimism is a complicated proposal as it may compromise being effectively prepared for your clients’ cases, overlooking issues to spot, and serving the public (legal clients) well. Paul R. Verkuil et al., supra. The challenge becomes how to keep pessimism in check and contained to the confines of legal practice, thus eliminating discourteousness.
Programs. Most states have a lawyer assistance program (LAP) or other program specifically geared to providing resources and support to lawyers based on the stress and other impactful factors unique to the profession. LAPs can link lawyers to resources to address the consequences of chronic stress and pessimism. Underlying mental/emotional health and substance use concerns are treatable, and treatment does not nullify legal prowess. In fact, treatment increases productivity while decreasing the risk of regulatory agency complaints and malpractice claims. Jarrod F. Reich, Capitalizing on Healthy Lawyers: The Business Case for Law Firms to Promote and Prioritize Lawyer Well-Being, 65 Vill. L. Rev. 361 (2020). With the number of studies performed on lawyers showing their high rates of stress, anxiety, depression, and problematic alcohol use, there is no shame in seeking assistance and support.
Collaboration/cooperation. Client collaboration and cooperation is also encouraged over an adversarial approach to promote happier, healthier attorneys. Individual lawyers cannot change the adversarial nature of the law, but focusing on prelitigation strategies, including mediation and other alternative dispute resolution, can reduce stress and engender health benefits for practicing attorneys and positive case outcomes for their clients.
Learned optimism. Finally, embracing and practicing “learned optimism” in all aspects of life outside of the profession can decrease stress and discourteousness, improve health and mental/emotional health outcomes, and increase motivation and resilience. Catherine Moore, Learned Optimism: Is Martin Seligman’s Glass Half Full?, PositivePsychology.com (Dec. 30, 2019). To do this, lawyers must make conscious choices in terms of their explanatory style, distinguishing between pessimism amid their case work and optimism everywhere else. Learning this ability to focus explanatory style on place, purpose, and function is what Seligman called flexible optimism.
To begin to do this, lawyers can incorporate three areas of focus: permanence, personalization, and pervasiveness. Kendra Cherry, How Learned Optimism Can Improve Your Life, Verywell Mind (June 28, 2021). Permanence is how lasting events are, while personalization examines one’s personal responsibility and role in creating or altering events. Pervasiveness considers the scope and extent of events, or the same outcome’s ability to spread to other areas.
Both optimists and pessimists use these three areas as views to shape their explanatory style. While permanence for pessimists suggests that negative events are lasting and unchangeable, optimists see permanence as temporary, with opportunities for resilience. When considering positive events through permanence, optimists view the positive events as lasting, while pessimists see them as fleeting. Personalization leads pessimists to blame themselves for losses or negative outcomes, while optimists attribute negative outcomes to external factors. Good outcomes leave optimists congratulating themselves through personalization, with pessimists giving credit to outside factors (never taking credit themselves). Optimists use pervasiveness to contain losses and failure only to the matter at hand; in contrast, pessimists see loss and failure as global, and they are acutely aware of their perceived fault in causing the failure. Optimists see good outcomes as pervasive and common, while pessimists consider good outcomes to be isolated and rare.
While working on a case, the pessimistic explanatory style can appropriately be confined to viewing negative outcomes as probable, unchangeable, and foreseeable. This is the height of issue-spotting, but it must be contained within the work of the case. In all other areas, optimism is possible, even probable. Lawyers can look for the possibilities, bounce back after disappointment, own their positive impact, and not self-flagellate because they see new opportunities on the horizon. Through learned optimism, there are always second chances, and threats are not perceived as imminent or inevitable—thus incivility does not fester or flare up.
When pessimism creates adversity, the result is a belief that the world is against you. The consequence is discourteousness, agitation, irritability, and lashing out. To stop there is to remain ensnared in the trap, experiencing personal distress and professional peril. Instead, disputing hopelessness, embracing changed beliefs through compartmentalization of pessimism professionally, and engaging in learned optimism provide energy, motivation, and inspiration to keep going kindly, effectively, and with sustainable attention to one’s own well-being. Pessimism may be prudence in legal practice, but it must be confined to legal practice so that its consequences don’t become a toxic trap undermining the practice and practitioner of the law.
