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Wednesday, July 19, 2017

The lawyer, the addict, and the law professors

What did people think about The Lawyer, the Addict in last weekend's New York Times? The piece was written by the ex-wife of a lawyer who died of an overdose; in investigating her husband's drug use and death, the author found a legal profession with high rates of substance abuse.

For now, I want to focus on one small section of the piece, sub-titled "The Law School Effect," which suggests that law school is part of the problem. Prior to law school, future law students are healthier than the general population--they drink less, use less drugs, have less depression, and are less hostile; they also begin with a stronger sense of self and values. Then it all changes in law school, which "twists people’s psyches and they come out of law school significantly impaired, with depression, anxiety and hostility." Following the start of law school, students show "a marked increase in depression, negative mood and physical symptoms, with corresponding decreases in positive affect and life satisfaction."

The piece points to a few factors. One is the way law school encourages students to remove emotions from their decisions. Another is the focus, and the shift in student focus, to status, comparative worth and competition, looking at things such as grades, honors, and potential career income, and away from the idealism that had motivated them to come to law school. The result is that young lawyers succumb to substance abuse when "the reality of working as a lawyer does not match what they had pictured while in law school."

I focus on this because it is the one part of this I might affect in my professional life. But I wonder what we as law professors can or should do about this. Start with the three big things mentioned in the article:

   • I am not sure law school encourages students to remove emotion from their decisions as much as to learn that emotion cannot be the basis for the decision. I like when students feel passionately about something. The problem--and the thing law school must teach--is that the whole of the analysis cannot be emotion and emotion cannot get in the way of everything else; they must move past emotion and go where the law does, can, or should lead, which is what I think law school tries to do. I also believe many professors and courses try to get students to think not only descriptively but also prescriptively about what the law should be or about how they would counsel a client to behave. But if it is all emotion--this is how I feel it should be--we are doing cable news or Twitter, not law.

   • Is law school more focused on grades, honors, and career income than other professional schools? Also, is this focus coming from law schools or from the profession? And, in any event, what can we do about it? Students go to law school to get jobs as lawyers--a central criticism of legal education is that we are producing too many lawyers who will not get jobs (or at least not good jobs) as lawyers. So career focus seems seems built into the education process. As to grades and honors, those are the signals that the job market uses in giving out jobs as lawyers. I suppose it would be nice not to give grades (grading is every prof's least-favorite part of the job), but that obviously is not happening. Students are aware of the import of grades and honors because they know they are the keys to getting jobs. At least within the curriculum, most professors are focused on students learning the subject rather than getting good grades, although the two ideally run together.

   • Loss of idealism is inevitable and, by definition, unrealistic. This is not unique to law or law school. (The author's ex-husband worked  as a chemist before law school, but found the work tedious--I imagine it departed from what he expected when he went to grad school for chemistry). Loss of idealism seems akin to the removal of emotion--idealism should not be eliminated, but it cannot control the game. We live, and will practice law in, the real world.

Another obvious factor, not mentioned in the article, is that law school is a lot of work--a lot of reading, a lot of preparation, and a lot of assignments going on at once. And it is not structured passively, with students sitting and listening to us lecture, so it is difficult to just skate by (at least in first year). Again, however, so is legal practice. Even if one wants to argue that the traditional law school classroom is ineffective and should be replaced by other methods, those other methods still require to read and be prepared for class, so the amount of work and preparation does not change. And, again, is law school more work than med school, engineering school, etc.?

So what can law schools and legal education do to not be a gateway that, by its nature and structure, starts students into this potential danger (according to the article)? (In answering, we must assume no changes to the legal profession or what life is like for practicing lawyers--law schools cannot make unilateral changes that would create more of a disconnect between education and the profession).

Posted by Howard Wasserman on July 19, 2017 at 12:28 PM in Howard Wasserman, Teaching Law | Permalink

Comments

I thought the contrast with Heather Gerkin's recent piece (http://time.com/4856225/law-school-free-speech/) was notable.

Posted by: Matthew Bruckner | Jul 19, 2017 2:30:51 PM

In what sense? That she finds a benefit--respect for free speech--in the very things the Times article identifies as the cause of lawyer problems--busy, focused on grades and not safe spaces, reason over emotion, loss of idealism?

Posted by: Howard Wasserman | Jul 19, 2017 4:01:40 PM

Is there any actual evidence that lawyers are in fact more likely to suffer from substance abuse, suicidal thoughts etc.?

Posted by: PaulB | Jul 19, 2017 4:53:03 PM

I don't find it all surprising that law students, in the aggregate, leave law school more depressed than when they enter it. But I don't think that law schools can do much about that, outside of non-pedagogical reforms they're unlikely to adopt. It's depressing for many law students to learn that their legal careers will be limited, that they won't get to do the sort of work they imagined they'd do, or that they lack legal talent. It's depressing for other law students to not learn these things quite so definitively but to feel great anxiety about whether they're the case. I think these are the main drivers of post-law-school depression and that law schools can do very little to avoid them other than imposing hard test-score/grades barriers to admission, shutting down/getting de-accredited if they can't attract meaningful numbers of students who are bright enough to be successful lawyers, and, collectively, not admitting vastly many more students than there are good legal jobs available. (That isn't, to be clear, a proposal, though I don't reject the idea out of hand; for purposes of this comment I'm only saying that fewer law students would become depressed if so many of them weren't cognitively ill-equipped to succeeding in law, if so many of them didn't attend law schools that employers don't respect, and if there weren't so many more of them than there were good legal jobs.) The rest is mostly atmospherics, and I don't see what training law students to think un-emotively about the merits of legal disputes has to do with their depression and anxiety, or that law school trains them to think less emotively about non-legal areas of their lives.

The problems the article identifies with large firms seem much more curable. Firms probably don't feel they can do this and compete for talent, but I think a large firm that hired 20% more associates, cut hours 20% and was generally more flexible about parents going to see their kids' violin recitals and that sort of thing, and cut base pay 20% to pay for the additional associates would attract very talented people who would happily forego 20% of a large salary to work 20% fewer hours.

Posted by: Asher Steinberg | Jul 19, 2017 5:08:24 PM

I agree with many of Asher's points. Some of my classmates as a 1L had never received anything other than an A. I suspect that this is not atypical and the rank ordering of law school classes challenges many students self-identity as one of the smartest people they know.

And, to Howard's question: I thought Heather's piece was very "rah rah" law school (as you might expect from a Dean). And the Times article was depressing (which is also unsurprising, as it's in line with their other recent coverage). I was simply struck by the juxtaposition of how two people looking at the same system seemed to have very different takeaways about the merits of law schools.

Posted by: Matthew Bruckner | Jul 19, 2017 5:16:09 PM

Paul: The Times story mentions some studies. My wife glanced at them and said they were not as solid or as persuasive as the article suggests.

Is this worse in law school than, say, medical school. Lots of smart people hit Harvard Law School and find they are no longer the smartest kids in the room or that they lack medical talent.

Posted by: Howard Wasserman | Jul 19, 2017 5:31:20 PM

The story is of course very sad, and one cannot help but feel horrible for the writer and her family. I can imagine that the qualities that made the deceased a very effective lawyer also allowed him to function despite his addiction. I can further imagine that his law practice generated the type of pressure that might cause a person to abuse substances. But it's one thing to say that law practice begets anxiety and sometimes drug or alcohol abuse, and quite another to say legal education is responsible for that result.

Since this blog post cites the NYT article's tie between law and "substance abuse," several additional points are in order: the 2016 ABA study that the NYT author discusses reports a noticeable amount of "problem drinking," depression, and anxiety among those attorneys surveyed. I decided to look up the Report myself (published in the 2016 Journal of Addiction), rather than just read the figures cited in the NYT article. Two points of interest: First, the study was co-funded by the Hazelden Betty Ford Foundation (perhaps not a big deal). Second, Peter Krill, the lead author of the report, who is also quoted separately in the NYT article, is himself an addiction treatment counselor and now leads his own law firm consulting service. The online version of the Times article actually links to the Krill website, which struck me as an almost inappropriate form of advertising but perhaps that's just me.

As to the 2016 Report itself (which I realize, might itself by subject to stronger criticism from those with more expertise in this subject), there are several important points the NYT article omits. First, the alcohol abuse among survey participants correlated quite strongly with age, duration working in the profession, and gender. Men, those younger than 30, and those who were just starting out in the field were more likely to answer positively the various alcohol-abuse questions than other cohorts. This is consistent with a number of narratives but it has little to do with the author's husband, who entered law school slightly later in life, developed his drug addiction as he grew older, and ultimately died of that addiction a number of years after he had made partner.

With regard to drug use, only 26.7% of those surveyed even answered the drug abuse questions. Contrary to what the NYT article claims, 3 percent of those who admitted drug use did not report "severe" concerns with their usage. Rather, 3 percent reported "substantial" concern, which in the 2016 Report represents one step less extreme than "severe." (See Report under "Drug Use" section). As it turns out, only .1% reported "severe" concern. Why, one might ask, did the NYT's fact-checkers fail to catch this mistake?

As noted above, only 26.7% of those surveyed even answered the 2016 Report's questions on drug use. Why did three quarters of the survey participants skip these questions? The benign explanation is that they thought the questions didn't apply to them. The NYT article, however, recites Mr. Krill's opinion that participants withheld their answers because they feared they might get in trouble with their bar associations. This explanation is at odds with the 2016 Report's recounting of how the (voluntary) survey was conducted: "Participants were not asked for identifying information, thus allowing them to complete the survey anonymously." (See Report under the "Procedures" section). In fact, several local bar associations who distributed the survey asked that IP and geo-location data not be collected.

And finally, in regard to the information it did actually collect on drug use, the 2016 Report concludes: "Data collected [from the survey] were found to not meet the assumptions for more advanced statistical procedures. As a result, no inferences about these data can be made." The remainder of the 2016 Report focuses its discussion on alcohol use and mental health. The NYT article makes no mention of the 2016 Report's disclaimer regarding its drug data and in fact recites portions of that data.

Again, I don't doubt the great sadness this family experienced. Nor do I doubt the need for sustained study of attorney drug use and alcohol abuse. But I wouldn't extrapolate any general conclusions about legal education from this article.

Posted by: Miriam Baer | Jul 19, 2017 7:02:22 PM

Thanks for looking into this, Miriam.

Posted by: Orin Kerr | Jul 19, 2017 7:55:12 PM

Howard,

I don't think the workload itself would at all contribute. If anything, having a lot to do can ward off depression and certain drug abuse (although it'd likely increase amphetamine use). I'd say it's not so much the volume but the nature of the workload. I certainly didn't find the workload of my masters program depression inducing.

A ton of the work in law school seems pointless. If you have Paper Chase style socratic lectures, you'll be staying up late memorizing all the finer details of an obscure case so that you can immediately recite them if randomly called upon. That's not exactly a productive use of one's life. And I don't just mean not a good use of your time, because we're not talking about a couple hours of busy work. We're talking about work that consumes the majority of your waking hours for three entire years in what ought to be your prime. It's not a good use of your life, and I don't think it's a big intuitive leap to think that could contribute to depression and drug abuse. Take all that investment in time, energy, money and the huge opportunity cost of it all, and then find out that the job you get at the end of it is much closer to being a white collar garbage man than a member of an esteemed learned profession, and you've got quite the recipe for disaster.

What can law schools do to improve themselves? I think a very good start would be to honestly assess what it is they think their core mission is. And we know the familiar refrain, they train student "how to think like a lawyer." But, I've seen very few reasonable discussions of what "thinking like a lawyer" is that describe anything beyond what I was taught in Philosophy 105 my first semester of undergrad. Even more rare is an explanation of how what happens in the classroom is at all tailored towards reaching that goal. Instead it's typically shoehorned theories about how literally everything that happens in a class helps you to think like a lawyer. Lawyers do a lot of work, so giving you a lot of work (of any type) helps you to think like a lawyer. Lawyers have a lot of stress and tight deadlines, so piling up the work into a tiny window helps you think like a lawyer. Law is complicated, so giving you something complicated but otherwise unrelated to legal practice helps you think like a lawyer. ...It's bogus. If the main goal was really to teach you how to think, the 1L curriculum wouldn't have classes that are all built around arcane nuances of particular subject matter areas. The courses would have names like Symbolic Logic, Rhetoric, and Behavioral Economics of Dispute Resolution, rather than Contracts, Property, and Torts.

Realistically, what law schools can do to help the situation is hammer home the idea that law school is a pie eating contest where the prize for first place is more pie. If nothing else, they can at least try to manage expectations.

Posted by: Derek Tokaz | Jul 20, 2017 8:51:48 AM

I find it hard to believe that the aspects of law school that a great majority of students find overwhelming, depressing, or anxiety-inducing are hard to uncover, grasp, or even directly address by faculty. Rather, faculty (mostly -- this is of course a generalization, though I believe an accurate one) simply are not willing to take the small, concrete steps to alleviate these problems in their own classrooms. Others in this thread have already mentioned a few -- pointless memorization of the details of old cases, a binary between passive lectures or aggressive cold-calling, an entire semester's worth of material tested on a single exam at the end of the term, sliced-and-diced conveyor-belt-like office hours where students feel like they have exactly 7 minutes to talk with the professor before the next student comes in, each feeling like they're holding the professor back from what s/he would rather be doing.

These are things faculty could easily fix, if pedagogy was more of a priority (which it manifestly is not, at least at top schools where some professors seem to spend more time writing up articles for current events online). It's not hard to shift over to teaching a course with both a midterm and a final exam, in order to make material more digestible and less anxiety-inducing. It's not hard to take more care in presenting material in a dynamic way, rather than relying on the same lecture notes one has been using since one received tenure 10 years ago. It's not hard to cut down on the case reading to eliminate obscure cases that law professors cut their teeth on in their own days as students (and so may be fond of), but that don't serve a useful or valuable purpose now.

It is true that the problems the article addresses require efforts made by every player in the game. But if the quality of legal education is going to improve, law professors have to do their part in the classroom, not just pontificate about the large, abstract, structural aspects of it online.

Posted by: Recent Grad | Jul 20, 2017 9:46:24 AM

Recent Grad: So here is where mileage may vary. The law-school experience you describe and which may be anxiety-inducing bears no resemblance to my experience as a law student, to what I do as a professor, and to what most of my colleagues do. (The exception is final-exam-only, which is a product of the past decade for most professors). I don't know what happens at other schools. But I have never seen a class in which students were on the hook to give factual details of the hair hand case except when I watched The Paper Chase.

Posted by: Howard Wasserman | Jul 20, 2017 10:23:33 AM

Howard,

Calling on students to give case details was pretty common in my classes, at least in the first year. Sometimes it'd be random, though a couple profs would give advance notice for who'd be on call that day. They also ask students to provide the arguments and court's analysis for the case, in addition to just the factual background, which is probably more relevant to their education, but it's still a lot of high stress memorization of stuff that doesn't really need to be memorized.

And wow, the final exam, which in most of my classes was the only grade. I have no idea what purpose that is supposed to serve other than to just recreate some sort of romanticized trial by fire. It's terrible for classes aimed at imparting subject matter expertise, and it's terrible for classes aimed at developing reasoning skills. If a professor was creating a class from scratch with a clear idea of what the learning objectives were, I couldn't imagine him thinking a single end of semester exam would serve any sort of useful purpose.

Posted by: Derek Tokaz | Jul 20, 2017 10:44:16 AM

There are a number of studies finding evidence that (1) law students suffer from depression to greater degrees than the general population or med students/ grad students, etc.; and (2) lawyers suffer from substance abuse to greater degrees than the general population:

1. Reifman, et al., Depression and Affect Among Law Students During Law School, A Longitudinal Study (2008) (finding that compared to pre-law levels, law students' depression levels were elevated during law school; law students' depression rates were twice that of med students and more akin to depression in the unemployed, those experiencing divorce, and those recently diagnosed with HIV).

2. Dammeyer, M. M., & Nunez, N., Anxiety and depression among law students: Current knowledge and future directions. Law and Human Behavior, 23(1), 55-73 (1999) (reviewing literature on empirical studies suggesting that law student depression is greater than that of the general population, pre-law students, and medical students).

3. Benjamin et al., The Role of Legal Education in Producing Psychological Distress Among Law Students and Lawyers, Am. B. Found. Res. J, 225 (1986) (finding that law students experienced elevated levels of depression even after graduation).

4. Andrew H. Benjamin et al., The Prevalence of Depression, Alcohol Abuse, and, Cocaine Abuse Among United States Lawyers, 13 INT'L J. L. & PSYCHIATRY 233 (1990) (finding that lawyers are twice as likely as general population to experience drug and/ or alcohol abuse).

5. Hellman, et. al, Stress and depressed mood in medical students, law students, and graduate students at McGill University.

6. Stemming the tide of law student depression: What law schools need to learn from the science of positive psychology, Petersen & Petersen, 9 Yale J. Health Pol'y L. & Ethics 357 (2009) (reviewing literature on heightened levels of law student depression and investigating potential mitigating efforts).

Posted by: Louis Schulze | Jul 20, 2017 11:40:28 AM

There's a factor at work here that exacerbates (probably doesn't cause) everything else:
* For the students, law school is about learning a process.
* For the students, (virtually) all evaluations in and related to law school are about a monolithic thing — the single exam per course, the bar exam, the initial employment decision (something for which, one might add, all of those "things" are at best door openers/closers, and frequently years behind current capability).

These are not congruent. And if you try to tell me, earnestly, that evaluation metrics have no feedback effect on those being evaluated because the metrics are inherently objective expert opinions, I will gently point you in the direction of virtually all research on evaluations (which uniformly says otherwise), and on practical examples such as military readiness statistics in the 1970s and 1980s and their effect on actual mission preparedness...

Posted by: C.E. Petit | Jul 20, 2017 12:02:32 PM

1. Whether classroom methods impact student distress or not, presuming that they are the sole or even substantial causes of the problem is a flawed assumption. Other factors are also relevant and possibly more predominant. For instance, employment rates out of law school are lower than other similar professions. Also, law students arrive into an environment that's likely more detrimentally competitive than any they've experienced in the past. (And, now they're competing against better students than in their past.) Lastly, law school arguably introduces (or suggests) to students the zero-sum-game that the practice of law (supposedly) entails, undermining their belief in their ability to become change agents.

I could go on, but my point is that focusing on classroom methods not only ignores other likely and more substantial causes but also invites debate on an issue upon which most aren't likely inclined to change their minds.

2. The comments I've seen seem to presume that any remedy to the problem (if a remedy is possible) involves changing law school methods significantly or abandoning them altogether. What's less discussed, though, is not what to change but what to add. There are ways to prepare students to mitigate the impact of the stresses involved in the practice of law that lead to depression, etc. See Petersen, The Happy Lawyer: The Centerpiece of a Course Every Law School Should Teach (discussing the impact of instruction on positive psychology upon law student and lawyer well-being; also detailing the evidence of the efficacy of positive psychology).

Posted by: Louis Schulze | Jul 20, 2017 1:12:43 PM

"And wow, the final exam, which in most of my classes was the only grade. I have no idea what purpose that is supposed to serve other than to just recreate some sort of romanticized trial by fire. It's terrible for classes aimed at imparting subject matter expertise, and it's terrible for classes aimed at developing reasoning skills. If a professor was creating a class from scratch with a clear idea of what the learning objectives were, I couldn't imagine him thinking a single end of semester exam would serve any sort of useful purpose."

Fortunately, the legal system doesn't hinge bar admissions on a single exam, or make determinations of guilt or innocence hinge on a single trial.

Posted by: Orin Kerr | Jul 20, 2017 1:29:02 PM

(Ugh, I just wrote a long followup to my snarky comment above, as my snark probably wasn't helpful, but I had a VPN on and it went into the spam filter. Anyway, just ignore my snark above -- if I have time I'll rewrite my prior comment.)

Posted by: Orin Kerr | Jul 20, 2017 1:56:43 PM

Orin,

I'm pretty hard to offend with snark, so no worries. And I do actually think it was helpful. It's a pretty fair example of the ex-post rationalization I've seen for law school structure (whether you intended it to be or not). Trials culminate in a single big, stressful, and comparatively graded test of skill, so a final exam helps to prepare students for legal practice...

Such thinking is a trap though (not that it's what you intended, just that the comment happens to fit the mold). We could give students two weeks to learn to juggle and if they drop one of the balls they get kicked by Jose Aldo and lose 1/3 of a letter grade, because after all, legal practice requires you to quickly learn new things, perform under pressure, and has high stakes consequences for failure. Thus our juggling assessment model helps prepare you for legal practice. Of course that's ludicrous.

I think any serious assessment regime needs to take an ex ante approach. Figure out what the learning outcome of the class is and then craft assignments which help advance that aim. I'd be seriously shocked to see this approach result in a final exam which counted for more than 25% of a student's grade.

Of course now this is getting into the pedagogical weeds. Going back to the OP, my point is that I think a lot of the dissatisfaction (and thus depression, drug abuse, etc) stems from how the day to day of law school is so disconnected from a meaningful purpose.

Posted by: Derek Tokaz | Jul 20, 2017 2:13:50 PM

Derek,

I agree with both your points. First, students learn much more if the class uses frequent formative assessment with prompt feedback.

Second, law schools need to require a class in professional identity development that connects law school with a meaningful purpose. A couple of years ago, I wrote a text for such a class--Developing Your Professional Identity: Creating Your Inner Lawyer (2015).

Posted by: Scott Fruehwald | Jul 20, 2017 2:46:32 PM

Also, to play captain obvious here... perhaps the law school and legal practice culture just involves too much social drinking? Especially if you're at a school that's being courted by BigLaw, there's going to be a ton of alcohol flowing. Just a thought that maybe supplying law students with a ton of alcohol might push some of them towards alcohol abuse. And alcohol being a depressant, seems like it could contribute to depression.

Posted by: Derek Tokaz | Jul 20, 2017 3:01:48 PM

Derek, the basic idea in my swallowed comment is that I think you're operating from a wrong assumption, that the point of law school exams is measuring and encouraging "learning outcomes." As I see it, that's not right. Law school is a professional school. As I see it, the main point of law school exams (with a few exceptions) is to tell prospective employers how strong students are at legal thinking, relative to each other, so the employers can help compare possible hires when they are deciding who to employ. Maybe the popular one-exam format isn't the best way to measure that. But I think criticisms of the current approach should at least be premised on that reality.

Posted by: Orin Kerr | Jul 20, 2017 6:25:06 PM

To bring my comment above back to the point of the thread, I do think that the purpose of law school exams can be really tough on law students. For students who come to law school with a dream job in mind -- advocating international human rights as a law firm partner etc. -- realizing that students are being compared to each other and ranked, with that dream job (if it exists) probably going to the one person at the very top of the hierarchy, can be really tough to handle. My 2 cents, at least.

Posted by: Orin Kerr | Jul 20, 2017 6:37:30 PM

The question remains: Is law school, law school grading, and the pressure to succeed in law school, in all the respects described in the comments, qualitatively different than medical school or any other professional school? If my dream job is to be a neurosurgeon at the Mayo Clinic, it can be tough to handle when I found out that job is going to the one person at the very top of the class.

Posted by: Howard Wasserman | Jul 20, 2017 7:03:06 PM

Howard, my sense is that it's really different. I've never been to med school, but my sense is that the pressures of med school for the most part are not about whether they will get their dream job. Doctors specialize right away, and that means they don't often aren't competing with each other, and the number of spots in school is artificially limited. In law school, lots of people admitted and a lot of them are chasing after the same brass ring. My sense, at least.

Posted by: Orin Kerr | Jul 20, 2017 7:29:19 PM

Longtime reader, infrequent poster.

My sense is that law school is much more about indexing, structurally and culturally than medical school. It certainly seems more than most purely academic graduate programs, even though those grads are sometimes also competing for similar jobs. Part of this, I think, is that law schools and elite law firms for the most part, are administered by people who did well in the current system. To some extent, their status and economic interests are contingent on that sorting being considered meaningful and relevant.

I think also, the stakes of law school and law practice have elevated as tuition (and accordingly, student debt). Medical students might also have this stress, but it seems like the compensation baseline is higher for doctors, as well as the prestige baseline, although I may be mistaken.

Posted by: Kevin | Jul 20, 2017 8:50:11 PM

Orin,

Do you mean that as a normative or positive statement?

If positive, fair enough, that's probably the most use anyone gets out of them.

But if normative ...I don't know if that theory would hold water. If the purpose of exams was to sort students for employers, then I think we'd have radically different exams. Most classes would be offered pass/fail and there'd be a much higher limit on how many P/F classes a student could take. Large regional employers would submit questions to be included in the exam, and professors would provide full exam responses to firms to do their own evaluation.

I imagine most professors would balk at having law firms write and grade their exams (though maybe they'd accept the grading part...) and we'd hear a lot of complaints about academic freedom if a school told a professor to do this.

Posted by: Derek Tokaz | Jul 21, 2017 8:54:57 AM

I am on the board of directors of my state's lawyers assistance program, and I can assure you that alcoholism, substance abuse, and mental health disorders are a serious problem for lawyers. (If you don't know what a lawyers assistance program is, keep reading!) No one knows whether our problem is more serious than in other professions, but that doesn't really matter. In fact, exchanging ideas with other professions can be helpful: we have a doctor on our board who has developed some innovative programs for health care workers, and we are trying to apply them to lawyers.

Alcoholism, addiction, and mental illness stem from many causes, but I think we (like doctors) have a special obligation to think about the ways in which our profession contributes to those diseases. The work we do has tremendous impact on the public, and we are a self regulating profession. If we don't take action to help afflicted lawyers (and, where possible, to reduce factors that contribute to these diseases), then the public--along with the lawyers and their families--suffers tremendous harm.

One of the complications in treating these disorders among lawyers is that we are very intelligent, high functioning people who are accustomed to keeping things secret. A clinically depressed lawyer can commit suicide before anyone realizes there is a problem; an addicted one, like the lawyer in the Times story, will overdose before others identify the problem. And along the way, families and clients will suffer.

There are a lot of things that law schools and individual professors could do to attack this problem. I'll start here with the smallest ones and, if time allows later today, discuss some more ambitious changes.

1. Know about your state's lawyers assistance program ("LAP"). These programs provide completely confidential assistance to lawyers with any type of alcohol, substance abuse, or mental health problem. The programs don't offer counseling or rehab, but they do an initial assessment and then work with lawyers to get them appropriate help. Any lawyer or law student can approach a LAP for help. So can any concerned family member or colleague. In fact, LAPs often organize interventions to help a firm deal with an affected employee; they also play a special role with judges who have developed substance abuse or mental health problems. The LAP's services are free, although lawyers do pay for the treatments they undertake.

Once you know about your state's LAP, talk about it! If they have a poster, put one outside your door. Remember that our profession has three intertwined problems: (1) the underlying health issues; (2) the reluctance of individual lawyers to admit (even to themselves) that they need help; and (3) our group silence about these issues.

2. Talk to students about family members, colleagues, or friends who have suffered from a mental health problem or addiction. You can do this without disclosing names, although some survivors are very happy to have their stories told. I tell students--in class even--about my mother's struggles against alcoholism and her proud sobriety for the last eleven years of her life. I tell them that my son suffered from OCD and was successfully treated. Don't do this just when talking to students who you think have a problem; weave these points into more general comments. The point is to normalize discussion about these very prevalent health problems--so that lawyers will feel more comfortable seeking help. When you look at your casebook, I think you'll be surprised at how many cases hint (or refer directly) at some underlying addiction or mental illness in one of the parties. Note how common these problems are and mention your friend or family member.

If you're starting to think: "Wait a minute, that's not the purpose of my course! I teach Evidence, Criminal Procedure, Secured Transactions...not Professional Responsibility or Personal Hygiene," stop and reflect for a minute. Our society allows only the people we teach to assist others with the rules of evidence, criminal procedure, and secured transactions--and we affect people's lives with our use of those rules. Devoting 10 minutes of a semester to a personal story that might help a student seek help down the road--and thus avoid harming a client with his/her use of the legal rules we have taught--surely is worth as much as another twist on a hypothetical. The bonus is, the student probably will remember the anecdote when s/he is 30 and needs help, much more than s/he will remember that hypothetical.

More soon, Debby

Posted by: Deborah Jones Merritt | Jul 21, 2017 11:10:45 AM

Derek, I mean it as a positive statement. But it's also normatively pretty sensible, I think.

You write:

"If the purpose of exams was to sort students for employers, then I think we'd have radically different exams. Most classes would be offered pass/fail and there'd be a much higher limit on how many P/F classes a student could take."

No, because if the purpose of exams is to rank order students, you need a rank in order to rank order them. A grade is the rank.

"Large regional employers would submit questions to be included in the exam, and professors would provide full exam responses to firms to do their own evaluation."

No, because no employers don't have a specific question to ask (again, this isn't about learning outcomes). They just want to know who is more or less skilled in legal thinking, and they rely on law schools sort that out through exams and grades.

"I imagine most professors would balk at having law firms write and grade their exams (though maybe they'd accept the grading part...) and we'd hear a lot of complaints about academic freedom if a school told a professor to do this."

? Law professors would absolutely love for someone else to write and grade their exams.

Posted by: Orin Kerr | Jul 21, 2017 11:57:50 AM

My third suggestion for addressing addiction and mental health disorders among lawyers is a broader one; it relates to the complaint about loss of emotion and values during law school. When students say this, I don't think they don't mean that they want to decide cases based on their emotions or personal values. What they usually mean is:

"We're talking about these appellate cases with brief statements of fact. But someone died here, or was tortured, or lost their life savings. I understand that my emotions can't dictate the legal rule, but what am I supposed to do with those emotions? And how would I relate to the client in a case like this? Would I just talk about abstract legal principles to someone who has been raped? Or had their child killed by a drunk driver? Would I recognize their emotions in some way? If so, how?"

Questions like this are very real for most lawyers. Appellate lawyers are unusual in being one step removed from the emotions of law practice. By focusing so heavily on appellate opinions and statutes, law school tends to glide over the emotional side of law practice. Clinics help a little, but we leave our graduates largely unprepared to integrate emotions, values, and law.

The traditional approach in law and medicine was to simply shut off the practitioner's emotions. Doctors learned to treat the patient as just one more gunshot wound or terminal cancer case. Lawyers tried to treat their clients as just another defrauded consumer, rapist, or polluter. Doctors, however, have learned that this doesn't work. Humans can shut off their emotions for only so long; at some point they, to put it in every day language, crack up. Doctors slide into depression, treating patients half heartedly, or they begin to abuse drugs or alcohol. No matter how well your surgeon was trained, you really don't want her cutting you open while suffering from a hangover.

Medicine is somewhat ahead of us in recognizing this problem. We can't cope with the stresses of either profession simply by cutting off emotion. Instead, we have to develop ways to recognize our emotions and personal values, show appropriate empathy for our clients, and also apply the logical rules of law (or medicine).

We could do much more to cultivate this balance in law school. In my criminal defense clinic, I devote one two-hour session to the special stresses that defense lawyers suffer--and the coping mechanisms they use. I hold a similar class for the students in the prosecution clinic. I'm still working to improve the content of these classes, but I think they're important.

That sort of class isn't appropriate in every doctrinal course, but it could be added to a large number of them. What are the stresses that family lawyers feel when interacting with real clients? What about corporate lawyers handling mergers and acquisitions? The types of emotion and stress may be different, but they exist in almost every type of law practice. The variation in types of stress makes it particularly useful (and interesting) to add to individual courses. What are the special stresses that a patent lawyer like "Peter" suffers? If I were still teaching that Patent Law, I'd bring in a particularly reflective practitioner or two to talk about those issues.

But we don't even need to go that far. It can help to pause in class, when discussing a case with particularly distressing facts, to acknowledge the pain that the plaintiff or defendant must have felt. It can also be interesting to talk about how the lawyers handled their emotions at the early stage of the case, before everyone got to the appellate court. I wouldn't do this by asking a student, in front of 70 peers, "how would you have felt about this case? What would you have done if the client broke down in tears in your office--or started throwing things at the wall?" Trying to address emotion in that manner leads to fairly limited responses ("I guess I would keep some Kleenex on my desk") and ends up marginalizing the role of emotion in real law practice.

Instead, we can try approaches like this: Rather than always asking students, "what would opposing counsel argue?" we can ask things like, "Imagine you represented the plaintiff from the beginning of this case. When you first met the plaintiff, what do you think her primary concerns would have been? How do you think she would have felt about what happened to her? Let's brainstorm how you would you have begun to channel those goals and feelings into an appropriate legal action." Those questions are as likely to challenge the student's doctrinal knowledge as much as the standard "what would you argue?"

Another option is: "I want you to articulate the argument for the plaintiff in this case. But before you do, let's step for a moment into the defendant's shoes. Not his lawyer's shoes, but his shoes. What do you think he wants? What do you think he is feeling?"

Questions like these have two pay-offs. First, they introduce students to the emotional whirlwind they will face in practice, and give them some foundation for dealing with those winds. Equally important, these questions lead to good legal analysis. I co-teach both prosecution and defense clinics and we never talk to opposing counsel before we have helped the students think about what the opposing party wants and feels about the case. (On the defense side, the opposing party includes both the victim and the amorphous notion of the state.)

There's still more we can do--and, yes, one of those things relates to final exams and grades. But just taking the three steps outlined so far would help some students and their future clients. I'm curious to hear from others if they have used approaches like this. And if I have time, and people are still reading this thread, I hope to post some ideas on some of the still broader issues.

Posted by: Deborah Jones Merritt | Jul 21, 2017 12:07:41 PM

I agree that law school grades primarily function as a ranking/signaling device (for employers and whoever else makes decisions based on grades), and not as a reflection of a quantity of knowledge or skills developed (otherwise, there is no point to curves, and the mean grade in my Evidence course every year would wiggle up and down, instead of being identical every year under our forced curve, whether the class as a whole performed better or worse than the previous semester's class).

But the idea that grades are a ranking/signaling device does not convince me that a single, end-of-semester exam should represent 100% of the rank/signal with regard to "legal thinking." I don't believe Orin has argued in defense of a single exam as 100% of the grade, but it's a widespread practice, and I find it hard to defend within the framework of grades as ranking/signals.

A more meaningful ranking/signal would be a grade that was arrived at as a result of several different assessments of "legal thinking" over time, so that the grade-assignor could be more confident of a student's place in the rank order with respect to "legal thinking."

Posted by: Kevin Lapp | Jul 21, 2017 2:52:12 PM

Three things I would like to add to this conversation.

First, at the risk of self-promotion, the Survey of Law Student Well Being (SLSWB) provides the most recent empirical data on the extent to which law students are using alcohol and drugs (including prescription drugs) and are dealing with mental health issues. David Jaffe (Associate Dean for Student Affairs at the American University Washington College of Law) and I, with grant support from the ABA Enterprise Fund and the Dave Nee Foundation, surveyed students at 15 law schools across the country in Spring 2014, with over 3000 responses, a response rate of roughly 30%. Results of the SLSWB were published last year in the Journal of Legal Education -- Suffering in Silence: The Survey of Law Student Well-Being and the Reluctance of Law Students to Seek Help for Substance Use and Mental Health Concerns, http://jle.aals.org/home/vol66/iss1/13/.

Second, while I am not going to summarize all the data here, I will highlight three data points. Alcohol -- roughly 22% of respondents indicated that they engaged in binge drinking twice in the two weeks prior to completing the survey. Prescription Drugs -- roughly 14% of respondents had used prescription drugs without a prescription (most commonly stimulants) in the prior 12 months. Mental Health -- roughly 37% of respondents screened positive for moderate to severe anxiety and 21% had a diagnosis of anxiety sometime in their life (with 30% of those being diagnosed since starting law school). One of the key challenges the data highlighted involves the reluctance of respondents to seek help, particularly those respondents most in need of help. Thus, I want to reiterate Debby Merritt's point about the importance of making your students aware of the Lawyers Assistance Program in your state and of encouraging your students to seek help (and to encourage their classmates to seek help).

Third, I think the "hidden curriculum" in law school does profoundly preference thinking over feeling and discourages students from processing their own emotions and integrating their values into who they are going to be as lawyers in ways that can exacerbate addiction or mental health concerns. The practice of law is not an "emotion-free" experience (for the reasons Debby suggests), but as legal educators we generally don't help our students engage and process emotions. With our profound emphasis on facts and critical thinking and analysis (the "first apprenticeship" described in "Educating Lawyers") some students believe they need to suppress their values and their emotions (the impoverished "third apprenticeship" of professional identity). In her book, The Language of Law School, Learning to “Think Like a Lawyer,” Elizabeth Mertz documents this empirically noting that law school training changes student values and “unmoor[s] . . . the self” and has the effect of marginalizing fairness, justice, morality, emotional life, and caring for others.

Law school is a formative experience. We have to be more intentional about the way our students are socialized into the profession if we want to ameliorate some of the problems reflected in the NYTimes story.

Posted by: Jerry Organ | Jul 21, 2017 4:27:08 PM

Orin,

My point about Pass/Fail is that if grades are just there to rank students for employment purposes, the school wouldn't really have a reason to object to a student taking more classes Pass/Fail if they don't care to compete in that particular market. I don't want to be a criminal lawyer, so I'll take Crim Pro Pass/Fail, and just be ranked on my Contracts and Corporate Law classes. Or, it's 3L year, I've already got an offer in hand, so I'm out of the race entirely. Why not just let me take all my 3L classes P/F?

The school's only real interest is in making sure the student has completed the required course of study to earn their degree, which Pass/Fail does fine. If a student wants to opt-out of the rat race, they should be allowed to. Mandating that students be graded A-F would make as much sense as mandating that students interview with a minimum number of employers during OCI.

If the exam really is there to let employers better decide who to hire, would you be willing to hand over the exam questions, student answers, and a model answer (if it exists) to prospective employers? And would you be willing to require that as a condition of taking your class all students sign a FERPA waiver allowing you to give their exam answers to any employer who requests it? Not that many employers would want to read through a bunch of exams, but some might. If they did, what reason could you have to object?

Posted by: Derek Tokaz | Jul 22, 2017 7:56:22 AM

Derek writes:

"My point about Pass/Fail is that if grades are just there to rank students for employment purposes, the school wouldn't really have a reason to object to a student taking more classes Pass/Fail if they don't care to compete in that particular market. I don't want to be a criminal lawyer, so I'll take Crim Pro Pass/Fail, and just be ranked on my Contracts and Corporate Law classes. Or, it's 3L year, I've already got an offer in hand, so I'm out of the race entirely. Why not just let me take all my 3L classes P/F?"

Maybe I'm not expressing myself well, but you can't rank order without ranks. Taking lots of classes pass/fail makes rankings useless. And because learning outcomes aren't the point, a grade in criminal law for a wannabe criminal lawyer has no particular relevance. An applicant's legal reasoning ability is independent of the subject matter, so a high or low grade in a particular subject doesn't tell you anything.

"The school's only real interest is in making sure the student has completed the required course of study to earn their degree, which Pass/Fail does fine. If a student wants to opt-out of the rat race, they should be allowed to. Mandating that students be graded A-F would make as much sense as mandating that students interview with a minimum number of employers during OCI."

No, the school's interest is in rank ordering students. The exception is if a school is so highly ranked that individual student rank doesn't matter, which is why the top 3 schools, Y, H, and S, can go (more or less) without grades.

"If the exam really is there to let employers better decide who to hire, would you be willing to hand over the exam questions, student answers, and a model answer (if it exists) to prospective employers? And would you be willing to require that as a condition of taking your class all students sign a FERPA waiver allowing you to give their exam answers to any employer who requests it? Not that many employers would want to read through a bunch of exams, but some might. If they did, what reason could you have to object?"

Derek, again, employers don't care about individual exams. They get hundreds of resumes from dozens of different law schools covering different courses taught by different professors. It would be practically impossible to read through all of the exams of all of the applicants in every subject taught by different professors -- and to relearn those subjects themselves, and perhaps to take the class from that professor as well to learn how that professor teaches it, as every course is different-- just to be able to rank order students. Rather, they rely on the schools to do that for them by rank ordering students using grades.

Posted by: Orin Kerr | Jul 22, 2017 1:03:33 PM

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