Summaries of Research or Scholarship

Thinking, Fast and Slow for Lawyers and Clients

By: mons0076

Published on: Tuesday, February 21st, 2012

Thinking, Fast and Slow for Lawyers and Clients
© Neil Hamilton
(Published Feb. 20, 2012 in Minnesota Lawyer

Can we improve our abilities both to make good judgments for ourselves and to help clients make better judgments? Psychologist Daniel Kahneman, a Nobel Laureate in economics, recently published a book, Thinking, Fast and Slow (2011) that synthesizes many decades of empirical work on how the mind works. The book provides a wealth of insight both on how each lawyer can improve his or her decision-making as well as on how, in the lawyer’s counseling role, a lawyer can help clients to improve their decision-making.

Kahneman and his deceased coauthor Amos Tversky spent their careers exploring how the human mind works in predictable ways to make errors of judgment. The good news is that they conclude humans are fundamentally reasonable and rational. “Most of our judgments and actions are appropriate most of the time.” The bad news is that if “most of our judgments and actions are appropriate most of the time,” then there is still a lot to error in our judgments. Going back to good news, there are abundant opportunities to make better decision for ourselves and to help clients make better decisions.

A general theme of Kahneman’s book is that we are over-confident in how well we think and make judgments. We have an exaggerated sense of how well we understand the world. Empirical research consistently shows that we make many systematic errors of judgment from cognitive biases, fallacies and illusions.

So what does Kahneman’s empirical work have to do with our work as lawyers? A good lawyer wants both to minimize his or her errors of personal and professional judgment and, as a counselor, to help clients to minimize their errors of judgment. If a lawyer understands the systematic errors of judgment that the human mind makes, he or she can take steps to minimize them.

System 1 and System 2 Thinking

From his empirical research, Kahneman argues that human reasoning is distorted by systematic biases, and one major source of such errors is the distinction between what he calls System 1 and System 2 thinking. System 1 and System 2 are metaphors or contrivances, not anatomical places or pathways, that Kahneman has created to help us understand how the mind works. The intuitive, largely unconscious and automatic System 1 does the fast thinking, and the effortful System 2 does the slow evaluative and reasoned thinking, monitors System 1, and exercises control over System 1 as best it can with its limited resources. System 1 develops over time as a product of learned patterns of association and retained memory to enable a person to create quick drafts of reality and to act in real time. It is especially sensitive to threats where immediate action may be necessary so System 1, for example, can immediately detect fear in others’ eyes and anger in the voice of others. Essentially, system 1 is the ability, developed over a lifetime, to recognize patterns and causal interpretations of events in a fraction of a second so that the person can produce an adequate solution to a challenge in real time.

System 2 thinks slowly; it evaluates and it reasons. It is essential for tasks that require comparisons, ordered reasoning and choice. Kahneman’s empirical data indicate that while we believe our System 2 is principally in control making reasoned judgments, in reality our System 1 thinking is more common. The problem is that System 2 has limited resources for concentrated cognitive work and self-control, and it gets depleted. As System 2 gets depleted, it weakens in its ability to monitor and control thoughts and actions suggested by System 1. A depleted System 2 regularly provides overly quick rationalizations for System 1 intuitions and biases.

System 1 Errors of Intuitive Judgment

While System 1 as “a machine for jumping to conclusions” gets it right most of the time, its quick and automatic search for causal interpretations of events is sometimes quite wrong. It often creates causal stories out of very dubious raw material.

Kahneman’s empirical research reveals a great number of systematic errors of System 1 judgments from cognitive biases, fallacies and illusions. Examples include anchoring effects, the optimistic bias and the planning fallacy, framing effects, the halo effect, the “Florida” effect, the focusing illusion, outcome bias, and availability bias. I discuss only the first two of these here.

Anchors or Arbitrary Reference Points

One of the most robust and reliable results of experimental psychology is that when people consider a particular value (called an anchor) for an unknown quantity before estimating that quantity, the estimates of the unknown quantity tend to be close to the particular value (the anchor) they heard before the estimate occurred. For example, the experimental data are clear that even if people are aware of the effects of an anchor, the anchor still influences them more than they know or want. For example, in an experiment, real estate agents were asked to assess the value of a house that was coming on the market, but the agents did not know the actual listed price. They visited the house and studied a comprehensive booklet of information that included an asking price. Half of the agents saw an asking price that was substantially higher than the eventual listed price, and half saw an asking price that was substantially lower. Each agent was then asked to give his or her opinion about a reasonable buying price and the lowest price at which the agent would sell the house if the agent owned it. The agents were then asked about the factors that affected their judgment. The agents took pride that the asking price was not one of the factors they considered. They said they ignored it. Yet the anchoring effect index was 41%, only slightly lower than the anchoring effect index of the asking price in the same study of business students with no real estate experience. Moving first to create an anchor in a single-issue negotiation over price has a powerful effect. A lawyer needs to know that any initial number on the table from the opposing side has had a strong system 1 effect on the client, the lawyer, and on the decision maker like a judge. If the stakes are high, the lawyer has to mobilize System 2 to combat the anchoring effect.

The Optimistic Bias, the Planning Fallacy, and Inside and Outside Views

Kahneman finds that “Most of us view the world as more benign than it really is, our own attributes as more favorable than they really are, and the goals we adopt as more achievable than they are likely to be. We also tend to exaggerate our ability to forecast the future, which fosters optimistic overconfidence. In terms of its consequences for decisions, the optimistic bias may be the most significant of the cognitive biases.” The planning fallacy, one of the manifestations of the optimistic bias, describes the phenomenon that, in making plans and forecasts for future projects, we tend to overestimate benefits and underestimate costs. We tend to make forecasts and plans that are “unrealistically close to best-case scenarios.” For example, in 2002, a survey of Americans remodeling their homes reported that on the average, they had expected the job to cost $18,618, and they ended up paying in average of $38,769. The solution is again to enlist System 2 to consult statistics of similar situations and projects to take the “outside view” rather than to assume the “inside view” that uses meager initial evidence about a project to extrapolate optimistically about the future.

A Lawyer’s Role in Thinking, Fast and Slow

Kahneman provides an empirical map and language to understand distinctive patterns of System 1 errors of judgment for both lawyers and clients. Although humans are not irrational in most cases, “they often need help to make more accurate judgments and better decisions.” Specifically, each lawyer should have a personal board of directors (my December, 2011 column) to provide this help to make an accurate diagnosis of possible System 1 judgment failures and to suggest System 2 interventions that limit the damage of bad judgment. Of course this is the independent and candid and honest counsel that lawyers give to clients. Lawyers can give particularly valuable counsel in situations where the client’s System 2 resources are depleted which will cause System 2 too quickly to endorse the client’s System 1 response without reasonable checking and reasoning.

Kahneman also suggests that experts like lawyers can improve his or her System 1 skills to minimize judgment errors through (1) careful attention to minefields like the anchor effect where System 1 judgments are most prone to error, and (2) practicing System 1 decisions and then seeking immediate feedback on the decision to learn from mistakes. For example, a trial will require many System 1 decisions for a litigator, but whenever possible, a newer lawyer can ask for immediate feedback on System 1 decisions. A lawyer can also counsel his or her client about both of these strategies.

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How Exemplary Lawyers in Minnesota Understand Professionalism

By: mons0076

Published on: Monday, November 7th, 2011

How Exemplary Lawyers in Minnesota Understand Professionalism
© Neil Hamilton, Professor of Law and Director, Holloran Center
Verna Monson, Ph.D., Research Fellow, Holloran Center

Oct. 11, 2011

Accreditation Changes Emphasizing Professionalism

Important changes are coming in legal education that will affect how we determine if students or practicing professionals are benefitting from what they are taught in law school and through continuing legal education programs.

For example, it’s likely that the American Bar Association will change the accreditation standards for law schools to require far greater emphasis on preparing students to practice law ethically. The changes under consideration stress helping students understand and exercise professional judgment consistent with “the values of the legal profession,” including “professionalism,” according to the ABA’s Draft Standard 203.

The proposed standards also require assessing the effectiveness of a law school’s efforts to help students achieve these mandated ethics objectives. These changes bring legal education in line with education for the other professions, as well as with undergraduate and K-12 education in their emphasis on assessment.

Focusing specifically on the ABA’s emphasis on practicing law ethically, this framework requires each law school to be specific enough about what it wants students to learn so that the results can be assessed. For example, what specifically are the “values of the legal profession” (mentioned twice in the proposed changes), “professional duties to society,” and “responsibilities of the legal profession”? The required learning outcomes outlined in Draft Standard 302(b)(4) give some guidance by defining required outcomes to include students’ “knowledge and understanding” of “the legal profession’s values of justice, fairness, candor, honesty, integrity, professionalism, respect for diversity, and respect for the rule of law” and also “responsibility to ensure that adequate legal services are provided to those who cannot afford to pay for them.”

An Empirical Study to Define the Elements of Professionalism

To define the elements professionalism with the clarity needed to satisfy these new requirements, we conducted an empirical study of the concept of professionalism by interviewing twelve professionalism award winners in Minnesota. From the forty-five lawyers who have won either the HCBA Professionalism Award or the MSBA Professional Excellence Award who are currently practicing law, we took a random sample of six men and six women, ranging in age from mid-40s to early-80s. The full study is forthcoming in “Ethical Professional (Trans)Formation: Themes from Interviews with Exemplary Lawyers,” in 52 SANTA CLARA L.REV (2011) accessible at http://ssrn.com/abstract=1804419.

Asked to reflect if their individual meanings of professionalism changed over the span of their careers, all twelve reported growth in their understanding of the concept. All twelve also defined professionalism as including four primary, overarching themes:

Professionalism is linked closely to a lawyer’s moral core or moral compass and includes internalizing a deep commitment to and responsibility for clients, colleagues, the firm, and broader society. A critical element of this moral core is trustworthiness, which serves as an important marker in both establishing and maintaining a lawyer’s credibility and reputation. A major part of this foundation of trustworthiness is honesty with self and others, and honesty serves as an internal mechanism that is part of an ongoing practice of self-reflection and growth. While all twelve lawyers discussed aspects of a moral core or moral compass, there was some variation in this theme. Three lawyers expressed views that core morality is stable and is significantly but not completely formed in childhood. Nine lawyers emphasized that moral formation involves reflection and self-awareness and is an ongoing process over a lifespan.
Counseling the client with independent judgment and candid advice is central to professionalism. The exemplars we interviewed offered in-depth, rich examples from decades of practice elaborating on their mode of practicing law focused on independent judgment and candor in ways that permitted a deepening of the trust in the lawyer-client relationship.
Developing a habit of self-reflection is perceived by exemplars as an important factor contributing to ongoing growth in a lawyer’s level and understanding of professionalism. The exemplars spoke of their experience of mistakes or failures, and all commented on how failure prompted reflection and self-assessment.
A lawyer’s understanding of professionalism evolves over a career and is perceived as more of a process or way of being than a static definition. During the interview, the attorneys were asked to self-assess whether their understanding of professionalism had evolved throughout the years. The responses of our exemplars support the idea that an individual’s self-understanding of the concept of professionalism evolves to become more complex and internally defined. With this development comes increased cognizance of the dynamic tension between economic self-interest and fulfilling the roles of an officer of the legal system, a representative of clients, and a public citizen responsible for the quality of justice.

A Paradigm Shift in Ethics Education

Our Santa Clara article proposes a paradigm shift from a static definition of professionalism focused on ethics education about the Rules of Professional Conduct to a constructive developmental definition that emphasizes fostering the internalization of the elements of professionalism as framed by exemplary lawyers. In Educating Physicians (2010), the Carnegie Foundation states, “formation is the most fundamental goal of the learning process.” What is true for education in the medical profession should also be true for education and continuing education in the legal profession.

Last, we propose that just as the definition of professionalism as a growth process came through in our interviews, we invite readers to discuss the meaning of professionalism with colleagues. Defining a complex idea like professionalism should ultimately be a collaborative process that strengthens relationships and our understanding.

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Gender Disparities in Leadership in the Professions: The Role of Stereotype Threat

By: Acts of Kindness

Published on: Tuesday, September 13th, 2011

The following is Part 4 of a four-part series that offers a preview of the Holloran Center’s research on professionalism in law.

Part 4. Gender Disparities in Leadership in the Professions: The Role of Stereotype Threat

With the Holloran Center sponsoring or co-sponsoring two programs this fall related to women and the judicial process (co-sponsored with the Infinity Project, on October 13th), and women and leadership in law and business (on November 10th, a blog about gender and disparities in business and in law is in order. In Part 1 and 2 of this blog series, I discussed our general research approach and philosophy, and in Part 3, one theme related to law firm culture and mentoring. Part 4 highlights research out of Stanford University on the phenomenon called “stereotype threat.” I suggest that stereotype threat is an important factor in the continuing challenge to reduce gender disparity in law firms and business, and that awareness of disparities in society is part of professionalism.

Gender and racial disparities in the upper echelons of law firms and business is a persistent issue that is both pragmatic and ethical. As client bases diversify, increasing diversity among law firms is a continuing priority for the ABA, Fortune 100 companies, and law firms. The role of stereotyping and bias is cited as an important factor in limiting opportunities for advancement in the firm or the corporation.[1] A study published last October in Psychological Science,[2] sheds light on a phenomenon called stereotype threat, and how it might cause women to “play it safe” by effectively taking themselves out of the running for leadership positions that are high risk and high reward.

Stereotype threat comes into play when one is made aware of negative and limiting ideas about one’s group. For example, a common stereotype exists that women are less capable in logical reasoning and math. For women made aware of that negative stereotype, the thought process involved with suppressing it and managing the anxiety over fears about conforming to this stereotype “uses up” cognitive resources, and thus results in declines in performance on cognitive tasks such as tests or problem solving – what research psychologists Priyanka Carr and Claude Steele at Stanford call “ego depletion.”[3] For women in law or business, stereotypes about their “style” of carrying out their job duties — e.g., notions that women are naturally more collaborative and caring in carrying out job duties – can be used against them when the job requires a more aggressive approach. In turn, this might explain why women are more likely to leave lucrative executive positions before reaching upper management or partner status.[4]

The Stanford researchers conducted an experiment involving financial decision making. In one condition, men and women were made aware of a stereotype that women do not perform as well as men on tests of math and logical reasoning and then asked to solve math equations. In a second condition, the group performed a series of puzzle problems without mention of any stereotype. Next, both groups played a series of 12 lotteries where there would be a chance to win (or lose) a nominal amount of cash. In the stereotype-aware condition, women were significantly more likely to reject lotteries, thus limiting their losses, as well as their rewards. In other words, when a negative stereotype about women was made known, women played it safe. Interestingly, men in the stereotype-aware condition took even greater risks. But in the non-stereotype condition, there were no differences in risk taking.

How might this effect be a factor in limiting the career potential for women lawyers or managers? For women lawyers and managers entering the workforce, there are multiple signals that might prime different stereotypes – e.g., not being given substantive cases or projects or conversely, being excessively praised for minor accomplishments[5]. In turn, these might trigger stereotype threat, and for some women, might also become the deciding factor in leaving a firm with higher potential for great rewards, for a smaller firm or public agency with less potential for reward, but also, less potential for failure or loss. The literature on mentoring in firms unambiguously concludes that in order to retain women, and in particular women of color, mentors play a critical role.

How can new lawyers or managers know when stereotype threat might be a factor that could derail them? Let’s look at a brief overview of the stereotypes about women in law and business that could trigger the effect. It’s been popular to hear about research finding that women have different leadership or communication “styles” – typically, being more collaborative or inclusive. So would adopting a more nurturing style of leadership help advance their careers? A 1995 ABA Commission on Women in the Profession report noted that women lawyers are “insufficiently aggressive, uncomfortably forthright, too emotional, or not as serious as men about their careers.”[6] Years later, a 2003 hearing by the Commission found no evidence that this stereotype had lessened, with a bar association president testifying that women lawyers continue to be viewed as “too bossy, too aggressive, not aggressive enough, too emotional, or too strident.”[7]

In a landmark case of employment discrimination, Hopkins v. Price Waterhouse,[8] management consultant Ann Hopkins sued her employer after failing to make partner after being told that she was “overly aggressive, unduly harsh, difficulty to work with, and impatient with staff.”[9] Following an initial court ruling in favor of Hopkins, and years of appeals, the Supreme Court upheld lower courts’ decisions, stating that “An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible catch-22: out of a job if they behave aggressively and out of a job if they do not” (p. 251).

But this was 20 years ago. Does such a Catch-22 still exist, in which the stereotype of women as “nurturing leaders” comes head to head with the demands for lawyers or managers who can be tough and aggressive when the job might demand it? For women in law, business, and the professions, Elena Kagan’s appointment to the Supreme Court is a definite mark of progress, but it’s harder to be optimistic about women advancing into upper leadership in other realms of law and business. Although women now comprise 31 percent of all attorneys, the proportion of law firm partners is significantly lower, at 18 percent, according to the ABA Commission on Women in the Profession 2010 report. According to a 2009 Catalyst survey of Fortune 500 companies, gender disparities are even greater in business. Of executive officer positions, only 13.5 percent were women. In top earning positions, the percentage drops to 6 percent. Women held only 15 percent of board positions and a full one third of companies had no women executive officers. Similar disparities in economic earning potential exist among both lawyers and women in business. Whether or not stereotype threat is a causal factor in these disparities is an empirical question. The Carr and Steele study was an experiment with undergraduate students. Clearly, field studies examining the phenomenon in law schools, law firms, and business need to take place to answer these questions definitively.

Until that can happen, I think we need to take a stance that stereotyping and bias are ethically wrong, and that part of professionalism should be awareness of these phenomenon. Through awareness, the underlying ethical issues that may be created by stereotyping can begin to be addressed. The highest level of professionalism should include awareness of perceptual barriers that prevent us for seeing ethical issues.

What are implications for education in the professions and organizational development in law firms and business? Here are some thoughts:

Law and business schools should consider integrating content about stereotyping and bias in courses beyond professional responsibility, employment law, or human resources courses. Bringing in content experts from social sciences and education to the strategic or curriculum planning processes to audit syllabi or conduct a needs assessment is a start.
Awareness about the nature of gender differences can be expanded. Let’s be clear: Both men and women can be caring, expressive, and creative. Both men and women can be strategic, direct, linear, and aggressive when the role requires it.
Mentors matter – in professions education and in one’s career. For young associates or managers, find someone you can talk with openly about feelings of “not fitting in” or of not being given meaningful cases or projects.
Negative stereotypes are on a spectrum of both conscious and unconsciously held biases that can lead to discrimination or harassment on an individual level. In the opinion of Richard Banks, Professor of Law at Stanford University, this has led to a plethora of diversity training seminars aimed at changing individual attitudes, [10] with questionable effectiveness. But change that is more systemic and policy-based may have more impact. For example, change aimed at policy reform on implementing zero-tolerance policies on discrimination or harassment may ultimately have greater impact on behavior and organizational climate.[11]

[1] ABA

[2] Priyanka B. Carr and Claude M. Steele, Stereotype Threat Affects Financial Decision Making, Psychological Science OnlineFirst, XX(X) 1-6.

[3] Id.

[4] ABA

[5] Research on bias and stereotyping found that bias can work in a seemingly positive, innocuous sense, called

[6]Commission on Women in the Profession, American Bar Association, Women in the Law: A Look at the Numbers, November 1995.

[7] Id., at 5.

[8] Hopkins v. Price Waterhouse, 490 U.S. 228 (1989).

[9] Ann Hopkins, Price Waterhouse v. Hopkins: A Personal Account of a Sexual Discrimination Plaintiff, 357-415, Hofstra Labor & Employment Law Journal, Vol. 22, 2005.

[10] R. Richard Banks, (How) Does Unconscious Bias Matter?: Law, Politics, and Racial Inequality, 58 Emory L.J. 1053, 2009.

[11] Id.

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Professionalism and Women in Law: Firm Culture and Mentors

By: Acts of Kindness

Published on: Thursday, May 26th, 2011

The Meaning of Professionalism in Law: Part 3
Professionalism and Women in Law: Firm Culture and Mentors
© Verna E. Monson, Ph.D.
Research Fellow
Holloran Center for Ethical Leadership in the Professions

The following is Part 3 of a four-part series that offers a preview of the Holloran Center’s research on professionalism in law.

In Part 1 and 2 of this blog series, I provided some background on our work in studying the meaning of professionalism and lawyer ethical professional formation. In Part 3, I focus on just one theme that emerged in interviews with lawyers, which highlights an important issue for the legal profession — that of law firm culture, mentoring, and how these factors likely relate to gender diversity in law firms.

One of the common threads in the interviews Professor Neil Hamilton and I conducted, and survey responses from early career lawyers, is the culture of law firms and the critical role of mentors in relationship to professionalism. One attorney,[1] a successful litigator, told of a period of time when she was in the early years of her career and found that the demands of a busy trial schedule out of state were pressing her to the point of exhaustion. She seriously considered leaving the firm. For months on end, she had been absent from the day-to-day workings of the firm. Even though she was a junior partner, there were signs of an impending shake-up, which caused a great deal of anxiety, even paranoia, in her words. There was a breakdown of trust that left her with a sense of impending disaster, and eroded her self confidence. It was a scenario where all too often, people turn to self medicating with alcohol or drugs for comfort.[2] At the end of her rope, she went to a senior partner for advice. This mentor encouraged her to first deal with her stress. She took some time off, and in the process learned some better ways to cope. This mentor then challenged her to come back to her job, dust herself off, and muster the courage to lead or as he put it “look like you’re in charge, and they’ll follow.” Once back on the job, she was better able to manage her stress and set healthier boundaries with subordinates and superiors. She ended up being enormously successful over the years.

We also heard stories about struggles that are currently in progress. One lawyer shared that the culture of her firm made her feel like an outsider. She felt that her opinions were often marginalized. She was more often than not given the less high-profile cases. An articulate, soft-spoken woman of color who felt she often was pitted against her more aggressive Ivy League colleagues, she often felt alienated. At the time of the interview, she was considering leaving. Absent in her remarks in the interview, unlike our exemplar, was mention of a mentor.

Hearing her story prompted us to look to the literature in the legal profession and the academy. We learned that 62% percent of women of color surveyed in an ABA Commission Study of Women in the Profession reported “being excluded from both informal and formal networking opportunities (compared with only 4% of white men reporting the same exclusion).”[3] This exclusion translates from organizational climate to disparity in representation and compensation. For women in law, now 31 percent of all attorneys, the proportion of law firm partners is significantly lower, at 18 percent, according to the ABA Commission on Women in the Profession 2010 report. A 2009 report by the ABA found that women lawyers earn 80.5% of the percentage of salary of their male counterparts.

According to a 2009 Catalyst survey of Fortune 500 companies, gender disparities are even greater in business. Women in executive positions are twice as likely to leave their positions than are men, according to a study just published in October’s issue of Economic Inquiry.[4] Of executive officer positions, only 13.5 percent were women. In top earning positions, the figure drops to 6 percent. Women held only 15 percent of board positions and a full one third of companies had no women executive officers. Similar disparities in economic earning potential exist among both lawyers and women in business.

So what does this imply with respect to growth of professionalism? To us, the implication is professionalism is not merely about complying with the floor rules that prohibit discrimination or harassment. It is about fostering a climate of trust and fairness among all associates in the firm, a theme we heard from all of our exemplary attorneys. To this elite group, it meant that the highest levels of professionalism are characterized by an unconditional commitment to fostering fairness, integrity, and working for the greater good of the firm and society. It also meant cultivating an organizational climate in which individual dignity and respect for all members of the firm and all clients are uncompromised. It meant mentoring all associates, particularly those who might struggle with the social dynamics or dealing with boundary issues with clients. It also means that associates should be proactive and seek out mentors to help them through difficult situations with colleagues or clients.

So the main takeaway of this blog article is that growth in professionalism maybe be greatly enhanced by the support of mentors. As Robert Kegan and Lisa Lahey state in their 2009 book, “Immunity to Change,” organizations must foster a climate of “optimal conflict” in which

“The persistent experience of some frustration, dilemma, life puzzle, quandary, or personal problem that is . . .
Perfectly designed to cause us to feel the limits of our current way of knowing. . . In some sphere of our living that we care about, with . . .
Sufficient supports so that we are neither overwhelmed by the conflict nor able to escape or diffuse it.”

So what to do if one does not have a formal mentor? Find one. But look around. Mentoring is in the spectrum of social support, and conversations with peers or others can serve as mentoring as much or more as a formal mentor.[5] Mentoring can and does occur between people of all ages, and all levels of the hierarchy. We may not call it that, but it is still mentoring. The “new model” of mentoring means we may have several mentors around us, who may not call themselves mentors, but nonetheless, can help us see our way through a difficult spot.

In sum, we we challenge you be alert to signals that the culture might be driving out talent.

To read more about the research that Professor Neil Hamilton and I are completing this spring, drafts of our papers in press in various journals can be found on the SSRN website, through the links below:

Monson, V.E., & Hamilton, N.W. (in press). Ethical professional (trans)formation: Early career lawyers make sense of professionalism (December 31, 2010). University of St. Thomas Law Journal, November 6, 2010; U of St. Thomas Legal Studies Research Paper No. 11-01. Available at SSRN: http://ssrn.com/abstract=1733282

Monson, V.E., & Hamilton, N.W. (in press). Entering law students’ conceptions of an ethical professional identity and the role of the lawyer in society (March 12, 2010). Available at SSRN: http://ssrn.com/abstract=1581528. Journal of the Legal Profession.

Hamilton, N.W., & Monson, V.E. (in press). Ethical professional (trans)formation: Themes from interviews about professionalism with exemplary lawyers (April 6, 2011). Accepted for publication in 52 Santa Clara L. Rev. (2011), available at: http://ssrn.com/abstract=1804419

In Part 4 of this blog series about the Holloran Center’s research on professionalism and the topic of law firm culture, I will look at research from Stanford University on gender stereotypes and financial decision making. It sheds light on underlying communication and attitudes that may foster exclusion.

[1] In order to protect the confidentiality of the lawyers we interviewed, we have changed key facts and context of the stories to ensure that the identities of these lawyers will remain unknown to readers.

[2] Susan Daicoff. Lawyer, Know Thyself: A Psychological Analysis of Personality Strengths and Weaknesses, American Psychological Association, (2004). http://susandaicoff.com/

[3] ABA Commission on Women in the Professions, From Visible Invisibility to Visibly Successful: Success Strategies for Law Firms and Women of Color in Law Firms, available at http://www.abanet.org/women/woc/wocinitiative.html

[4] Robert Kegan & Lisa Lahey, Immunity to Change: How To Overcome It and Unlock the Potential in Yourself and Your Organization (2009). http://mindsatwork.com/index.php?page=about&family=books

[5] Eileen M. McGowan, Eric M. Stone, and Robert Kegan, Chapter 16: A Constructive-Developmental Approach to Mentoring Relationships, The Handbook of Mentoring at Work (2007). http://www.sagepub.com/books/Book227688

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Do the Math: The Complex Equation of Fostering an Ethical Professional Identity

By: Acts of Kindness

Published on: Thursday, May 12th, 2011

May 3, 2011

© Verna Monson, Ph.D.
Research Fellow, Holloran Center for Ethical Leadership in the Professions
University of St Thomas School of Law

Actor Paul Muni in the 1936 film "The Story of Louis Pasteur"

Skeptical about the idea that adults can change ethically, and not superficially so? A healthy dose of skepticism is, afterall, the basis of how science advances, and how hypotheses about legal cases or cures for diseases are formed. Professor Neil Hamilton and I recently co-authored an article called “Addressing the Skeptics on Fostering Ethical Professional Formation (Professionalism)” published in Professional Lawyer. In our article, we address a longstanding opinion in the legal academy and business community that one’s morality is pretty well fixed by the time of law school, particularly with respect to moral development. Skeptics contend that law students are simply not going to fundamentally change the way they think about morality, claiming this is the domain of one’s upbringing, and the stuff of Eagle Scouts or Sunday School. We provide evidence in our article that these views are 30 years out of date.

Let’s analyze this for a moment using a metaphor from medicine, with legal education the patient. The guardians (the Carnegie Foundation, the ABA Outcomes Committee Report, and law schools) of the patient (law students) want to strengthen the ethical core of each law student, supposedly to deter future unethical behaviors. So what should the physicians (law professors) administer? The saying “what gets measured gets done” predominates society. From that belief, many put forth suggestions for using different assessment tools of moral development and personality, as a way of gauging the moral temperature of the “patient.” Some come with impressive indicators of reliability and validity — others, with thick manuals for coding interview or essay data. Many of them meet the standards for psychological and educational assessment and testing – but others are questionable. Perhaps this is the point at which skepticism takes hold.

In our view, being skeptical of “quick fixes,” like the personality test du jour, is wise. Like a doctor who writes a quick prescription without checking for interactions or fully listening to the patient, legal education could similarly set out to “add on” another assessment, a different test, or another course, simply with the intent to “do something” about the Carnegie Foundation’s suggestions and ABA’s proposed directives to attend to ethical professional formation. The math is more complex to morality.

Law students are very smart people, many of whom are veterans of personality tests and assessments. So instead of approaching moral development like scientists with lab coats and law students as patients, we suggest that what is needed is a more holistic approach. The math, once again, goes far beyond accounting for single factors that contribute to morality. In fact, moral psychologist James Rest (see, Center for the Study of Ethical Development) points out that the “math” to morality involves four components of awareness or perception, cognition, emotion, and interpersonal skills – all in a dynamic process in which single factors of morality interact with others (Rest, 1986).

In our article, Neil Hamilton and I provide evidence from lifespan developmental psychologists that people can and do change throughout adulthood, citing theory and research of Robert Kegan and other lifespan developmental psychologists.[1] They see adult development the way the child developmental experts see infant and child cognitive development – there are predictable stages in development very familiar to parents. The primary methods that Kegan and others see as important in fostering development are not short tests of personality, team skills, or communication ability – instead they recommend methods that recognize the uniqueness of each individual student in complex ways that are based on meaningful interpersonal interaction, not simply on adding on another assessment or another course. Some recommendations from educational and lifespan developmental psychologists include:

(1) Challenging students’ individually to examine how they are interpreting their experience – through dialog, mentoring, and coaching, and asking the right questions, rather than imposing the right answers.

(2) Involving students in self assessment of complex skills. The validity and reliability of many off-the-shelf tests of complex psychosocial skills should always be questioned. But more importantly, what the Carnegie Foundation and other lifespan developmental psychologists recommend is asking each individual student to engage in introspection – deeply reflecting on the meaning of becoming a lawyer, and developing the capacity to step back and gain perspective in how one is interpreting life events.

(3) Integrating reflective assignments throughout the curriculum that will create lifelong habits of reflection on what it means to be a lawyer.

(4) Utilize cooperative learning, but give students tools to support team function, monitor team processes, coach students who need to improve their skills in being a team member, and insist upon individual accountability.

(5) Foster a sense of psychological safety in school culture by coaching students how to effectively give feedback to each other. Encourage students to expand perspective taking and moral sensitivity to diversity by using random assignment in learning groups, and encouraging learning about different cultural or world views.

(6) Integrate classroom activities that build skills in managing conflicts, mediation, and negotiation designed to break down zero-sum game thinking and enhance creativity in problem solving.

As you can see, these six recommendations focus on a complex “math” of meaningful interpersonal interaction and nurturing mindfulness. This is the paradigm shift that we are speaking of, and it’s not unique to legal education. We invite you to read the full article at the following SSRN:

Neil W. Hamilton & Verna Monson, Answering the Skeptics on Fostering Ethical Professional Formation (Professionalism) (March 13, 2011). The Professional Lawyer, Vol. 20, No. 4, 2011; U of St. Thomas Legal Studies Research Paper No. 11-05. Available at SSRN: http://ssrn.com/abstract=1791216

To learn more about lifespan developmental psychology, ethics education in the professions, and our approach, we recommend reading the following:

Muriel J. Bebeau, The Defining Issues Test and the Four Component Model, Contributions to Professional Education, 31 J. Moral Educ. 271 (2002)

Muriel J. Bebeau, Promoting Ethical Development and Professionalism: Insights from Educational Research in the Professions, 5 U. St. Thomas L.J. (2008).

Anne Colby & William M. Sullivan, Formation of Professionalism and Purpose: Perspectives from the Preparation for the Professions Program, 5 U. St. Thomas L.J.

Robert Kegan, In Over our Heads: The Mental Demands of Modern Life 185 (1998).

Robert Kegan & Lisa Lahey, Immunity to Change: How To Overcome It and Unlock the Potential in Yourself and Your Organization (2009).

Neil W. Hamilton & Verna Monson, The Positive Empirical Relationship of Professionalism to Effectiveness in the Practice of Law (November 2010). Georgetown Journal of Legal Ethics, Vol. 24; U of St. Thomas Legal Studies Research Paper No. 09-22. Available at SSRN: http://ssrn.com/abstract=1495824.

Verna Monson & Neil Hamilton, Entering Law Students’ Conceptions on Ethical Professional Identity and the Role of the Lawyer in Society, 35 J. Legal Prof., 2 (forthcoming 2011), available at http://ssrn.com/abstract=1581528; Monson & Hamilton, (Trans)formation, supra note 23, at 5.

Verna E. Monson & Neil W. Hamilton, Ethical Professional (Trans)formation in Law: Lawyers Five Years After Graduation Make Sense of Professionalism, U. St. Thomas L.J., forthcoming 2011), available at http://ssrn.com/abstract=1733282

James Rest, Moral Development: Advances in Research and Theory (1986).

James Rest et al., Postconventional Moral Thinking: A Neo-Kohlbergian Approach (1999).

William Sullivan et al., Educating Lawyers: Preparation for the Practice of Law 133 (2007).

The above photo is from a 1936 movie that tells the story of Louis Pasteur, whose skepticism about current beliefs about the origins of disease led to founding the science of microbiology, developing the process of pasteurization of milk, and curing anthrax among farm animals.

[1]

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COMPETENCY MODELS AND THE “NEW NORMAL” MARKET

By: Acts of Kindness

Published on: Monday, May 2nd, 2011

COMPETENCY MODELS AND THE “NEW NORMAL” MARKET
© Professor Neil Hamilton
Published April 18, 2011 in Minnesota Lawyer

April 11 draft

A July 2009 survey of U.S. law firms reported that in response to market changes, almost seventy-five percent of the firms had or were planning to develop a competency-model approach to talent management. This article will explore the legal market forces driving change toward a “new normal,” and how competency models respond to these market forces.

Market Forces Driving Change Towards a “New Normal”

Clients (particularly in-house lawyers as clients with respect to outside counsel) are pressuring lawyers for enhanced value for legal services with modest if any price increases. Sophisticated users also often move to unbundle or segment legal work to create more competition for the work. For example, legal outsourcing to India or other countries continues to increase for commodity work like e-discovery, document review, and due diligence work. The internet increasingly provides people with access to more and more information about the law creating both more pro se efforts to resolve problems as well as more knowledgeable purchasers of legal services.

The core concepts for lawyers to embrace in this new normal market are efficiency, cost-effectiveness, and clear value for the client. With these core concepts in mind, many firms are pro-actively rethinking their business model, and one of the pro-active strategies is talent management using competency models.

Competency Models to Increase Efficiency, Cost Effectiveness and Value for the Client

Competency models are defined in an excellent recent book, The Art and Science of Strategic Talent Management in Law Firms (West, 2010). Susan Manch and Terri Mottershead (both consultants on attorney talent management) explain that a competency-based approach is different from standard law firm performance management because the competency model gives a specific definition of performance expectations using behavioral language to describe each needed capacity or skill. They continue,

“A competency-based approach to talent development involves identifying the characteristics of a firm’s most highly successful lawyers and using those characteristics to anchor a firm’s talent management strategy. To briefly summarize, competency frameworks are guided by the philosophy that to most effectively aid associates’ development, associates should be given a clear grouping of competencies to master. In a competency model, performance standards are observable behaviors explicitly described and shown as evolving in complexity across three or four or five levels of experience. In a competency-based framework, for example, mentoring programs would be designed to offer different types/levels of support to lawyers in each level of the path to mastery of the core competencies.”

Manch presents a sample of what a competency framework might look like in a typical firm. The author identifies four core competencies for the firm listed at the top of the framework and then lists the performance factors for each core competency.

Manch’s Sample Competency Framework

Legal Excellence	Client Orientation	Leadership	Career Commitment
Oral Communication WritingStrategic thinking Technical expertise	Adding value Project managementService and quality orientation Initiative	Self awareness Relationship building Performance management Team building and inclusion	Practice development Drive to learn and improveFirm and community citizenship Ethics and integrity

Other Competency Models

Indiana professor Bill Henderson (2009), Berkeley professors Marjorie Shultz and Sheldon Zedeck (2008), and South Carolina professor Roy Stuckey (2007) have each done an empirical study to identify the most important core competencies of effective lawyering. A synthesis of the three studies yields the following core competencies listed on top with the performance factors listed below.

Competency Framework:
Synthesis of Three National Studies

Critical Thinking and Judgment	Service Orientation with Clients	Working with Others	Communications	Virtues and Dispositions
Core understanding of the law Analysis and reasoning Pragmatic problem solving Strategic thinking Creativity and innovation	Client rapport and strong relationships Client commitment Demonstrated value to clientResponsiveness	Effective teamwork Effective planning and organization of work Self –Assurance	Listening Persuasive speaking, writing and negotiation	Proactive initiative Integrity and honesty Self-awareness and reflection Commitment to self-development toward excellenceResilience and perseverance

Benefits of a Competency Model

Manch and Mottershead explain that a competency model is useful for both associates and partners. A competency model makes transparent what it takes to be effective and successful in the firm. Associates get a roadmap of competencies necessary at each stage of their development. The partners individually and the firm as a whole clarify what is important for recognition, advancement, and compensation.

Law schools should also undertake to articulate a competency model for the students. Law students need a roadmap to become effective lawyers. Each student can develop a portfolio showing his or her development of specific competencies. This will help students in their search for employment.

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Ethical Professional Identity Formation

By: Acts of Kindness

Published on: Monday, April 18th, 2011

The Meaning of Professionalism in Law: Part 2
Ethical Professional Identity Formation

The following is Part 2 of a four-part series that offers a preview of the Holloran Center’s research on professionalism in law.

Professor Neil Hamilton recently spoke at a symposium on Leadership in Law at the University of Santa Clara about our study of ethical professional identity, or professionalism, on March 25th. In the study, we asked twelve lawyers, all peer-honored exemplars of professionalism in corporate, legal aid, or non-profit organizations, how they defined professionalism, and how that definition has evolved throughout their career. As we prepare the scholarly version of the paper, we wanted to share some of the ideas that influenced us, and continue to shape how we are thinking about professionalism.

Ethical professional identity, or professionalism, is about the question of “why be moral” as an attorney, a physician, a nurse, a professor, or a member of the clergy. We used an in-depth interview method to explore aspects of the “why be moral” question, borrowing from the work of Robert Kegan, a lifespan developmental psychologist at Harvard. Unlike theorists who compartmentalize concepts like “justice” and “care,” or examine just one element of decision making such as emotion, cognition, or social influences, Kegan’s approach is holistic – recognizing that these elements are interdependent, and can’t easily be parsed in the same way that your doctor’s lab can measure your LDL and HDL cholesterol levels.

Kegan’s theory emphasizes that people can change throughout a lifetime to become less egocentric, more responsible, and more effective and authentic, and that there is a pattern to how this development occurs. Kegan’s ideas run counter to more popular personality theories that emphasize “types,” or a common view of lay persons that by the time young adults finish college or prepare to enter a profession, it’s too late to influence how they think or how they prioritize moral issues in the professional role. In fact, in their book “Immunity to Change,” Kegan and his co-author, Lisa Lahey, report on over two decades of research finding significant variation in the complexity of ideas or stage of development within each age group. They find that most adults reach a developmental stage where the predominant emphasis is on belonging, mutuality, and reciprocity in social relationships – which although it is important, can substitute for a process of discerning one’s own distinct identity or point of view. According to Kegan, with this ability to self-define one’s identity, comes increasing ability to be authentic or to resist negative influences. This idea, of course, is not new and one can find elements of it in literature and philosophy throughout history (e.g., Shakespeare’s “to thine own self be true” or Socrates’ “the unexamined life is not worth living”).

The importance of this critical process of self definition, in the professions, is that one of the main factors in ethical lapses is “getting caught up” in the social milieu of competition or cutting corners, ethically. The difference between being able to step back and take perspective of one’s self, and judge whether our natural need for belonging and affiliation are creating ethical blindspots, is the most important developmental marker of adulthood, according to scholars using Kegan’s approach.

Among our exemplars, we heard many stories of lawyers self defining their professional role, of holding fast to their ethical values, and upholding the highest ideals and core principles of the profession within the firm, clients, or the judicial system. But we also heard stories of leadership — of seeking out experts who could challenge one’s assumptions and beliefs, of leading change in the profession, or of devoting significant time and effort to serve those with the greatest need for legal services, among some of the world’s most oppressed and impoverished regions. We observed not only the highest levels of internalized professionalism, but also, highly effective and authentic leaders. We refer to this as “Transformational Professionalism,” a nod to Kegan’s highest stage of development, Self Transformation.

In sum, together with our studies of entering law students and early career lawyers, we see critical differences in the level of complexity, or stages, of ethical professional identity between our exemplars and younger, novice attorneys. Furthermore, ideas about professionalism evolve to a greater extent as challenges or failures offer us hidden lessons with which we can change the very way we see ourselves and others.

What are the implications for legal education? For law schools, clearly defining what we mean by competencies associated with professionalism, and pointing out the highest levels of professionalism to inspire future lawyers are important. Hearing the importance of self-reflection among our exemplars reinforced our view that the intentional examination of one’s professional role needs to begin in law school – through exposure to mentors who represent many of the ideas of exemplary professionalism, through teaching not only the rules of professional responsibility but the aspirational elements of professionalism, and cultivating habits of action, feedback, and self assessment throughout the curriculum and law school culture. Together, these elements of the law school experience are integral to equipping the next generation of lawyers to begin a lifelong process of learning professionalism – more as a “way of being,” as one exemplar told us, than a static body of knowledge or set of skills.

Future studies will examine exemplars within different areas of practice, e.g., criminal defense, prosecutors, or judges, and in different regions of the country. To learn more about our research on ethical professional identity, or professionalism, see working drafts of our papers on the Social Science Research Network (SSRN) at the following:

Neil W. Hamilton & Verna E. Monson, Ethical Professional (Trans)formation: Themes from Interviews About Professionalism with Exemplary Lawyers (April 6, 2011), accepted for publication in 52 Santa Clara L. Rev. (2011), available at http://ssrn.com/abstract=1804419

Verna E. Monson & Neil W. Hamilton, Ethical Professional (Trans)formation in Law: Lawyers Five Years After Graduation Make Sense of Professionalism, U. St. Thomas L.J. 11 (forthcoming 2011), available at http://ssrn.com/abstract=1733282

We invite your comments or questions. Contact me at mons0076@stthomas.edu.

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The Meaning of Professionalism in Law: A Preview of Research at the Holloran Center

By: Acts of Kindness

Published on: Wednesday, January 19th, 2011

Part 1. The Meaning of Professionalism: A Preview of Our Research and Approach

The following is Part 1 of a four-part series that offers a preview of the Holloran Center’s research on professionalism in law. We welcome your thoughts or questions. Verna Monson, mons0076@stthomas.edu

The Holloran Center is observing some milestones this winter with our research agenda: One, an article on professionalism and its relationship to effectiveness in legal practice, just published in the Georgetown Journal of Legal Ethics; a second article on entering law students’ understanding of professionalism, in press with the Journal of the Legal Profession; and three, the completion of interviews with 12 exemplary attorneys and 7 alumni, plus an survey of 40 alumni, all focused on the meaning of professionalism. This four-part blog series previews some highlights from our results. This research stems from the Carnegie Foundation’s report on the importance of ethical professional formation or professionalism, and the need for law schools to focus on scholarship and research on how best to foster its development in law school.

Part 1 gives an overview of the theory that guides our research, from education in the professions and moral psychology. Part 2 reviews our approach to assessing identity formation. Part 3 delves into one of the themes that emerged through the data analysis process, that of the role of mentors in fostering growth of professionalism, along with the implications for women entering the legal profession. In Part 4, the connection between the growth of professionalism, ethical climate in law firms, and impact of gender stereotypes and bias is discussed, drawing upon some recent research findings out of Stanford University, a summary which is contained in Discover magazine’s blog. In the full versions of our research articles, there will, of course, be many more themes and topics addressed.

Last summer, Professor Neil Hamilton and I conducted interviews with professionalism award winners recognized as exemplars by their peers through Minnesota state and local bar associations. Ten interviewees worked in large and medium law firms, and two were from small not-for-profit agencies. All were randomly selected from lists obtained through the web. How do some of the exemplary lawyers in the Twin Cities think about professionalism?

To funnel almost 100 pages of interview transcript data into a single sentence might look like the following: The meaning of professionalism in law evolves from less to more complex as lawyers deal with the internal conflict that occurs in the process of defining the self and one’s professional role. Note that our focus in the final analysis was more about the experience and stories of these lawyers that related to professionalism, than about their personality characteristics or upbringing. However, our exemplary lawyers did come from a wide variety of backgrounds. Some were more extroverted, some introverted. We found exemplary professionalism to be a phenomenon that cuts across personality, background, or religious background, and is instead unified by core tenets that comprise a more complex, manifestation of professionalism.

Where We Are Coming From: Theoretical and Empirical Grounding
We drew upon the work of Mickey Bebeau at the University of Minnesota, a nationally recognized scholar on ethics education in the professions, whose work in development and validation of assessments of moral capacities provided us with a guide. Mickey’s work focuses on moral issues in the context of the professions. The centerpiece of her work is the curriculum and assessments used in dental ethics programs, based on the Four Component Model (FCM) of moral behavior of the late James Rest. The FCM states that awareness of a moral problem is necessary before the problem can be addressed through reasoning and justifying our decisions. One must also be internally motivated to follow-through on one’s decisions, and possess the interpersonal ability to carry out the plan of action.

Mickey led ethicists and exemplary practitioners in a process of defining the highest levels of ethical decisions in the profession of dentistry. Similarly, through our interviews with exemplary attorneys, we are taking a first step in defining the highest levels of professionalism in law. In the future, we plan on further replication with expert groups, including judges and law professors.

Why did we choose the FCM? Why not an approach that draws on virtues, ethical theory, or personality traits? We chose the FCM because (1) it integrates thought and emotion, (2) it takes the view that people are capable of change, growth, or development, with education and with sufficient challenges; (3) it is associated with best practices in the field of measurement and assessment; and (4) it encompasses multiple variables associated with moral development, including motivation, perception, religion, interpersonal skills, and religion, to name a few.

When we speak with audiences about our work, particularly those unfamiliar with moral psychology, we’re sometimes asked if our approach is one that leads to moral relativism – that no one moral stance is superior to another’s. The answer is no, but we’re not surprised by the question. In recent years, a wave of interest in “social intuitionist” moral theory occurred in scientific journals, as well as the popular and trade press, led by psychologist Jonathan Haidt of the University of Virginia. Social intuitionist theory posits that most moral decision making results primarily from intuition or emotion, not reason. Haidt contends that most moral reasoning is a post hoc justification process. The idea suggests that moral decisions spring forth from the least evolved or complex part of our minds, leading to a view of morality as an individualistic endeavor, unmoored from core social values that hold society together. David Brooks, op-ed columnist from the New York Times, got on the bandwagon last year declaring “The End of Philosophy” – stating there is a new “emotional approach to morality.” In his critique of Haidt’s theory in his new book, “The Moral Landscape,” neuroscientist Sam Harris states:

Haidt is right to notice that the brain’s emotional circuitry often governs our moral intuitions … but it does not follow that there are no right and wrong answers to questions of morality. (p. 89)

Haidt’s more recent writing contains some self-admitted contradictions, such as “Morality is universal, yet culturally variable.” Noting the universal need for social cooperation and the moral implications that are essentially universal, Haidt calls for further research on the social aspects of morality, and in particular, the role of religion. For example, in a 2007 article in Science magazine, Haidt points out research on religiosity and the brain. Citing research of Andrew Newberg and his colleagues, authors of “Why God Won’t Go Away: Brain Science and the Biology of Belief,” he points out that these researchers “found that religious experiences often involved decreased activity in brain areas that maintain maps of the self’s boundaries and position, consistent with widespread reports that mystical experiences involve feelings of merging with God or the universe.” We find this recent scholarship valuable, but not necessarily new. Jim Rest’s Four Component Model foreshadowed the importance of emotion, cognition, and the role of social institutions in fostering enduring values and perspective taking as early as 1983.

To summarize, we are building on a work in ethics education that utilizes a conceptual approach that while it was articulated almost three decades ago, but is enduring, contemporary, and most importantly, is empirically validated, permitting us to build on existing measures and applications to professions education. In our study with exemplars and alumni, we began with moral identity. Building on the work of Robert Kegan, we view identity as a balance of tensions between the need to expand our awareness of others, including the profession and society, and the need to retain the core elements of our identity, in a type of yin / yang dynamic. Part 2 of this series will preview our approach.

What is the meaning of professionalism to you, personally? I’d like to hear from you either by commenting below, or sending me an email, at mons0076@stthomas.edu.

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New Empirical Findings on Happiness Relevant to the Practice of Law

By: Acts of Kindness

Published on: Wednesday, December 29th, 2010

(c) Neil Hamilton, Professor, School of Law, and Director, Holloran Center
Emily Semo, University of St Thomas School of Law, Class of 2012
[published Dec. 20, 2010 in MN Lawyer]

Fields from neuroscience to psychology have recently been grappling with the question – what makes us happy? The answer to this question provides important information for each practicing lawyer. Can we better understand what makes our clients happy? Can we better understand how to help our law firm colleagues and staff be happy? Can we better understand how we can be happy?

Definitions
In this literature, the definition of happiness itself is elusive, ranging from present pleasure to life-long fulfillment and satisfaction. In general, there are four main approaches to defining and studying the concept of happiness. The neuroscience field focuses its research on transient happiness, using definitions that range from “pleasure to exhilaration to euphoria.” Much of the social science research investigates a definition of intermediate happiness, such as “contentment or satisfaction.” Third, a subset of social-science scholars focus on life-long happiness, including “self-realization” and reflections on what it means “to have lived life well.” A fourth approach uses the broader term “wellbeing.” In their new book, Wellbeing, The Five Essential Elements (2010), Tom Rath and Jim Harter propose that wellbeing includes our general, daily happiness levels as well as our levels of short-term and long-term satisfaction with our career, social relationships, financial situations, physical health, and community relationships.

In her recent book, Exploring Happiness (2010), Sissela Bok notes that definitions of happiness used in theory and empirical research vary widely, and the chosen definitions in any given instance function “as Rorschach tests or sorts – of personality, traits, hopes, and biases.” In short, we define happiness from our own personal experiences, revealing much about our own value system by how we choose to frame the concept. For example, Monson and Hamilton’s empirical research does show movement over a career in understandings of professional identity from more self-interested conceptions to more other-directed conceptions (available at http://ssrn.com/abstract=1581528). We could not, however, find empirical research on whether people at different life or developmental stages define happiness or wellbeing differently. It makes intuitive sense that as a person gains both life experience and maturity of judgment, the person’s definition of happiness may change.

Important Threshold Questions
While research regarding happiness or wellbeing must be carefully analyzed to determine what trait or quality is actually being measured, general patterns can be seen in the research and used to help us improve the happiness and wellbeing of clients and colleagues and ourselves. An important threshold question is how much of our happiness is genetically determined? Psychology researcher Sonja Lyubomirsky of the University of California-Riverside suggests that our general happiness levels are determined 50 percent by genetics and 10 percent by circumstances outside our control, hence 40 percent of our happiness is within our own control. This statistic does not define happiness in any more specific terms. In short, we can significantly influence our level of happiness over the course of our life, if we can figure out how to do so. A second threshold question is how much does income affect happiness? A 2006 study conducted by Princeton professor Daniel Kahneman asked respondents the global question: “Taken all together, how would you say things are these days – would you say that you are very happy, pretty happy, or not too happy?” Those who earned more than $90,000/year were almost twice as likely to respond that they are “very happy” than those who made less than $20,000. However, there was little to no difference between the highest income earners and those who earned between $50,000 and $89,999 annually.

If we look at clients and lawyers who make more than $50,000/year, how do we help increase their happiness and wellbeing? In this essay, we are going to focus on one common theme in this developing empirical literature: service to others contributes to happiness and wellbeing.

Service to Others as a Major Contributor
A number of empirical studies emphasize a correlation between service to others and increasing happiness and wellbeing. Clinical Law Professor Larry Krieger of Florida State University College of Law has focused his research on wellbeing and personal motivation. He highlights 20 years of empirical research showing that when our actions are motivated by intrinsic values, such as “close relationships with others, pro-social/helping outcomes, and community involvement,” we experience “satisfaction and wellbeing.” Additionally, a well-known longitudinal study of happiness conducted by Harvard University studied members of the class of 1941 over their entire life spans at regular intervals. The study recorded various physical and psychological factors for each participant as well as self-reported levels of wellbeing and happiness. The study has shown that the use of adaptations such as altruism and suppression of self-serving impulses is one of the major factors predicting healthy physical and psychological wellbeing. Moreover, the study found that the ability to maintain “warm connections” to other people is strongly predictive of healthy late-life adjustment. These findings suggest that an ability to move beyond self-serving objectives and impulses to a commitment to genuinely connect with and help others can increase our physical and psychological wellbeing.

In Exploring Happiness, Sissela Bok further explores this correlation between altruistic behavior and both increased subjective wellbeing and increased neurological activity in the pleasure centers of our brains. She highlights a 2001 study conducted by Peggy Thoits and Lyndi Hewitt of Vanderbilt University that found a correlation between performing volunteer work and increases in “life satisfaction” and “happiness.” Moreover, experiments in the field of neuroscience have found that participants’ brain activity indicative of pleasurable responses was higher when they were instructed to think of giving money to a charitable organization than when they were instructed to think about keeping it for themselves.

In their recent book, The Happy Lawyer (2010), Nancy Levit and Douglas O. Linder present corroborating empirical research regarding lawyer happiness and suggest that a focus on improving the lives of others may help increase levels of happiness among lawyers. They note a 2007 study performed by the National Opinion Research Center at the University of Chicago that compared the general happiness levels of people within 198 occupations and professions. Respondents were asked: “Taken all together, how would you say things are these days—would you say you are very happy, pretty happy, or not too happy?” The results showed that the clergy ranked at the top of the list as the profession with the happiest members, while roofers ranked as the unhappiest. Lawyers came in only slightly above average. Levit and Linder hypothesize that the clergy rank as the happiest profession because their work involves them in “deep and meaningful ways in the lives of others,” sustaining and invigorating the profession’s members personally and professionally.

Using These Findings in the Practice of Law
We can use the empirical findings that service to others increase levels of self-reported happiness, long-term life satisfaction, wellbeing, and pleasurable biological responses to better relate to our clients and colleagues and improve our own wellbeing. For example, in 2005, the Legal Underground blog asked lawyers to comment regarding what they enjoy about their work. Many responses indicated that lawyers enjoy counseling clients, building trust with clients, solving problems for clients, helping the vulnerable, and affecting their communities in a positive way. We suspect that a brief conversation with any of your colleagues in any field of law would yield similar responses.

The work that we are most satisfied with is that which involves us in helping and improving others’ lives. Moreover, not only does a commitment to serving others and other-directedness lead to higher levels of wellbeing, Hamilton and Monson also find it is empirically correlated with increased levels of effectiveness in lawyers as evaluated by clients and senior lawyers (available at http://ssrn.com/abstract=1495824). As lawyers with counseling skills, we can help our clients and colleagues appreciate the significance of the empirical data suggesting the correlation between service to others and happiness and wellbeing. Active listening, storytelling and framing questions to help clients and colleagues understand and consider intermediate and long-term happiness and wellbeing and service to others are excellent counseling strategies. If we can work to increase our clients’ and colleagues’ levels of happiness and wellbeing, we can work toward increasing our own levels as well.

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The Profession and Professionalism are Dead?: A Review of Thomas Morgan’s “The Vanishing American Lawyer”

By: Acts of Kindness

Published on: Sunday, October 10th, 2010

by Neil Hamilton

Professor Tom Morgan’s new book, The Vanishing American Lawyer (2010) makes the argument that the legal profession and professionalism are dead. In light of the future market realities facing lawyers, Professor Morgan views the death of both law as a profession and professionalism as a good thing.

Professor Neil Hamilton recently wrote a book review of “The Vanishing American Lawyer”. Professor Hamilton disagrees that lawyers can better respond to new market realities and thus serve the public good by saying that the profession and professionalism are dead. It makes a Churchillian defense of the profession and professionalism. The concepts are flawed in actual practice, and we could do a great deal better in realizing them, but the review argues that the alternative that Morgan proposes is more flawed in terms of ultimate benefit for the public good. Business schools following Morgan’s model have largely failed to acculturate our most gifted and educated students into moralities necessary for sustainable responsible capitalism.

Professor Hamilton’s full book review can be accessed through SSRN.

Neil Hamilton is a professor of law and director of the Holloran Center for Ethical Leadership in the Professions at the University of St. Thomas School of Law.

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