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THIS ADVERSARIAL LIFE

Three experiences in the past week have highlighted my awareness that the world that lawyers inhabit is a rough one.  (1) I had to participate in what turned out to be a 6-hour deposition at a large law firm (though not a party to the litigation in question); (2) My next LCL client after that experience was a bright, capable young man who had become depressed and felt he was no longer able to endure his (well paid) work in what often seemed unnecessary (and unnecessarily confrontational) litigation; (3) in a discussion group of legal practitioners that I facilitated, a participant wrestled with the dilemma of much preferring to practice collaborative family law but being told that it would be very hard to make a living without engaging in divorce combat.

I can’t count the number of lawyers, of all ages, who have met with me over my 15+ years at LCL complaining of feeling beaten down by the adversarial nature of their work which, it turns out, is often in marked contrast to their personality styles.  With what was left of my brain after that deposition, I did wonder whether either of the lawyers had trouble coping with the stance that, I suppose, they had to take; whether they might someday find themselves sharing their distress about it with a therapist.  But my guess is that the more aggressive of the two, like a surgeon facing the need to slice his patients, had already firmly adopted a posture of hardened distance from the objects of his efforts.

Renowned psychologist Martin Seligman devoted a full chapter of his book Authentic Happiness to the sky-high rate of depression among lawyers.  Referring to the concept of “zero-sum game” that characterizes our legal system (where the more that I win, the more that you lose), he states:

The zero-sum nature of law has no easy antidote. For better or for worse, the adversarial process, confrontation, maximizing billable hours, and the “ethic” of getting as much as you possibly can for your clients are much too deeply entrenched. More pro bono activity, more mediation, more out-of-court settlements, and “therapeutic jurisprudence” are all in the spirit of countering the zero-sum mentality, but I expect these recommendations are not cures, but Band-Aids.

Berkeley Law Professor Robert A. Kagan has written about the forces in the American justice system, in contrast to most of Western Europe, that promote “adversarial legalism,” to a markedly increased extent in the past 40+ years, “an ethic of zealous advocacy that in the hands of some practitioners – but not merely a few – legitimates superaggressive legal contestation.”

Collaborative law, referenced above, sheds the “zero-sum game” approach and attempts to come as close as possible to “win-win.”  It seems to have gained a small foothold in the realm of domestic law, but is clearly at odds with the prevailing trends.

What business is this of mine, one might well ask, since the lawyers who read this know much more about the territory than I.  The answer is that I have met with so many lawyers who come to LCL feeling the need to change careers because they are so uncomfortable and disappointed with daily exposure to conflict and confrontation, much of it seeming to be a counterproductive exercise in exertion of power.

My experience at LCL has shown me that, when relating on a human level, most lawyers are fine individuals and just as vulnerable as the rest of us (though perhaps acculturated not to show it).  How unfortunate that so many of them feel caught in a role that perpetuates the public’s stereotype.  Nevertheless, though the system may be bigger than all of us, individuals can change their behavior and attitudes.  LCL can certainly help those who want to make such changes.  Even for those who are in no position to make major career changes, we can assist with the quest to find ways to work and cope effectively within the zero-sum game.

Jeff Fortgang, PhD

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