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Reviving civility: path to well-being in legal profession

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The first in a series of commentaries about the role civility plays in lawyer well-being.

Civility in the legal profession faces unprecedented challenges in today’s landscape of polarization and technological advances. According to the American Bar Association’s Survey of Civic Literacy 2023, 85 percent of respondents believe civility in the United States has declined over the past decade, highlighting the urgent need for renewed commitment within the legal community.

Civility embodies respect, compassion and understanding for all stakeholders, and its restoration is crucial amidst manifestations of incivility such as bias, harassment, discrimination and bullying.

Here, we delve into the importance of civility within the legal profession, exploring its connection to well-being, as well as its implications for legal practitioners, clients and the broader community.

It also happens to be Well-Being Week in Law — a week to raise awareness about mental health and encourage action across the profession to improve well-being, which includes civility. From May 6-10, we are hosting, collaborating on and supporting various events and programs across Massachusetts. Visit our website to join the programs and events and access the many resources available at www.lawyerwellbeingma.org/well-being-week-in-law-2024.

How civility impacts well-being

The Supreme Judicial Court Steering Committee on Lawyer Well-Being in its 2019 report referencing the National Task Force Report on Lawyer Well-Being states that “[incivility] depletes energy and motivation, increases burnout, and inflicts emotional and psychological damage. It diminishes productivity, performance, creativity and helping behaviors.”

Most lawyers expect their professional activities to involve stressful elements due to the adversarial nature of the practice of law. However, there is a significant difference between entering into a stressful endeavor willingly (and hence having the opportunity to allocate internal resources and external supports accordingly) and regularly having to respond to unexpected injections of hostility and threat (i.e., incivility).

While complete control of our lives is never a realistic option, feeling resilient and adequately capable of managing our responses to the stressful elements of our lives are key components of our well-being.

The science of incivility and health

Incivility directly affects our physical, emotional and mental well-being. Exposure to incivility activates our sympathetic nervous system (i.e., our flight/fight/freeze response), preparing us to respond to threats. When a threat has passed, our brains activate the parasympathetic nervous system, which slows our breathing and heart rate and lowers blood pressure (this also improves our sleep, digestion and immune system).

The unpredictable nature of incivility produces a threat without a distinct ending, which results in our brains remaining in an extended period of sympathetic nervous system activation. This has a direct impact on our ability to “shut off work” and switch gears to more enjoyable and restorative activities.

In addition to its effects on our overall well-being, incivility has a significant impact on our cognitive processes. When we are under a perceived threat, our brains prioritize survival and shift resources away from higher cognitive functions (e.g., executive functioning, memory, concentration, reasoning). This is in opposition to our goal of peak mental performance, or a flow state.

Thus, you won’t gain a competitive advantage by being uncivil to your adversary; rather, you will activate your own sympathetic nervous system, putting yourself in survival mode and thus losing flow.

The data on incivility and well-being

Empirical data from Massachusetts highlights the detrimental impact of incivility on mental health and well-being outcomes among legal practitioners. According to a recent study of attorneys in Massachusetts by NORC at the University of Chicago, those who experience bias, harassment and/or discrimination in legal practice report higher burnout, anxiety and depression. Moreover, lawyers from marginalized groups are more likely to experience incidents related to bias, harassment and/or discrimination.

Alarmingly, in this particular study, when asked about where lawyers experienced incidents in incivility, almost 40 percent reported attorneys representing other parties or their current place of employment.

It’s clear incivility is not only an issue among opposing counsel but among colleagues in your own workplaces. The data continues to bear this out, as the Massachusetts well-being study also found ties between supportive workplaces and better well-being outcomes.

While the data is bleak, certainly there are efforts to address incivility. Amendments to the Massachusetts Rules of Professional Conduct in 2022 make clear that abusive tactics and harassment in the course of representation and client advocacy will not be tolerated.

Last year, the Massachusetts Bar Association passed a resolution reaffirming “Civility and Professionalism as a Pillar of Lawyer Well-Being,” specifically that “lawyers should treat one another with the same high degree of common courtesy, professionalism and civility that is expected in the courtroom,” including granting reasonable requests for extensions of time “recognizing that lawyers have personal and work schedules to manage, and that the granting of reasonable extensions has a direct impact on the well-being of lawyers given the demands of the profession.”

Add to that the important work of the SJC Standing Committee on Lawyer Well-Being, Lawyers Concerned for Lawyers, bar associations, and workplace well-being staff to strengthen connections in the community; increase awareness of bias and identity-based discrimination and develop ways to combat it; reduce stigma that prevents seeking help; increase and improve communications between the bench and the bar; teach skills such as conflict de-escalation, interrupting bias, and having difficult conversations, and specifically train managers and supervisors in these skills; and impress upon leaders the importance of well-being in the profession and how it both impacts civility and vice versa.

As one lawyer reacted to the Massachusetts well-being study: “In the end, we are all human beings.” We need to recognize that we all suffer, we all have trauma, and if we can learn to be compassionate, learn and practice better self-regulation and coping skills, we can respond more appropriately when we encounter a difficult situation.

Attorney perspectives: What does civility mean to you?

The co-chairs of the SJC Standing Committee on Lawyer Well-Being weigh in with their responses to the question: “What does civility mean to you?” They share their perspectives on civility, emphasizing its significance in fostering a culture of decency, tolerance and flexibility.

  • Christina Turgeon, Fitzgerald Law

“To me, civility simply means decency. Treating individuals with respect requires little effort and should be the foundation of our actions in all aspects of life. While the adversarial nature of law can make civility challenging, law and argument should be used to advance our clients’ interests, not demeaning and demoralizing behaviors towards opposing counsel. Disagreeing with someone does not give permission to be rude.

“Indeed, I have found that being civil while advocating for my clients has often proved more beneficial in working towards mutually agreeable settlements. In my experience, people who are treated civilly, with decency and kindness, often return the same treatment. By intentionally practicing civility, we can foster a culture of kindness and tolerance, even in our digital communications where it’s easy to forget these values and ‘hide behind the screen.’

“There are myriad ways to express beliefs without being rude, even simply by waiting to send a written communication or message. Let’s strive to treat others with decency and kindness, both online and offline, as it can have a ripple effect of positivity in our profession and beyond.”

  • Mala Rafik, Rosenfeld & Rafik

“To me, civility means flexibility. I recently asked my doctor if he could just admit me for a few days so I would have a ‘real’ excuse to ask for extensions, to not answer the phone, email and texts, to avoid Zoom meetings, and to just sleep. He, of course, said no.

“As lawyers, it’s often unrealistic for us to separate work and personal life entirely, but flexibility can bridge that gap. Whether in your own workplace or with opposing counsel, accommodating flexibility in scheduling can greatly benefit everyone involved. It shouldn’t require extreme circumstances like hospitalization to grant an extension. If it doesn’t harm your client’s case, why not allow for flexibility in scheduling? If someone asks to spread out depositions because they want to spend some time with their family, be flexible.

“As important as saying yes is making yourself known as someone who others can feel comfortable making an ask because you’re not going to default to no, not going to judge, not going to respond angrily and threaten to file a motion. Be someone who won’t make others feel terrible for asking or force them to come up with some ‘excuse’ so they can live their life.

“Flexibility isn’t just about scheduling; it’s about adapting how we work and allowing ourselves and others the space to recharge. When you’re tired, stressed or anxious, it’s easy to lapse into anger and frustration. Instead, take breaks during the day and maybe even have some fun. You’ll feel better, and that will impact others in a positive way.”

Conclusion

Fostering civility within the legal profession is not just a moral imperative but a crucial component of well-being. As we navigate the complexities of modern legal practice, let us reaffirm our commitment to civility, compassion and respect for one another. By embracing civility, we can create a more inclusive, supportive and healthier legal community for all.

Heidi Alexander is director, and Mala Rafik and Christina Turgeon are co-chairs, of the SJC Standing Committee on Lawyer Well-Being. Dr. Shawn Healy is with Lawyers Concerned for Lawyers.

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