Best Practices for Keeping Attorney Burnout and Chronic

Best Practices for Keeping Attorney Burnout and Chronic Stress At Bay

November 10, 2021

©2018‐21 Michelle Greer Galloway 1

45TH ANNUAL IP INSTITUTE:

SHIFTING TIDES – INTELLECTUAL PROPERTY IN A CHANGING WORLD


Michelle Greer Galloway/November 10, 2021

Michelle Greer GallowayMichelle Greer Galloway

Of Counsel in the IP Litigation Practice Group of Cooley LLPLecturer in Law at Stanford University and Santa Clara University School of LawExecutive Committee, Litigation Section of California Lawyers Association (2018-2021)Past Chair, ABA Intellectual Property Section, Professional Ethics and Responsibility CommitteeContact Michelle at [email protected] or 650-843-5161 or [email protected] information about seminars Michelle offers, go to https://www.cooley.com/people/michelle-galloway and click on the red box.

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When?When?

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Invest – In Yourself!Invest – In Yourself!

“The single most powerful investment we can ever make in life is investment in ourselves, in the only instrument we have with which to deal with life and to contribute. We are the instruments of our own performance, and to be effective, we need to recognize the importance of taking time regularly to sharpen the saw.”

S. Covey, Daily Reflections for Highly Effective People

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OverviewOverview

Legal Profession and StressStress – Your Brain and Body Need ItWhen Stress Turns PhysicalStress Happens – How To Thrive Even In Times of Stress

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Lawyers SufferLawyers Suffer

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https://lawyerwellbeing.net/lawyer‐well‐being‐week/; see alsohttp://www.hazeldenbettyford.org/about‐us/news‐and‐media/press‐release/aba‐hazelden‐release‐first‐study‐attorney‐substance‐use

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DepressionDepression

10%

32%

40%

17.90% 19%

9% 9% 9% 9% 9%

0%5%

10%15%20%25%30%35%40%45%

PreLaw 1st Year 3rd Year 2 YrsPostGrad

0-78 Yrs ofPractice

Lawyers General Population Maximum

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See S. Daicoff, Depression is Prevalent Among Lawyers But Not Inevitable, The Complete Lawyer (Dec. 2008) and Daicoff Slides

Unrelenting DeadlinesUnrelenting Deadlines

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PerfectionismPerfectionism

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Why Are Lawyers Unhappy?Why Are Lawyers Unhappy?

Pessimism – how we explain why things happenAdversarialism pervades allEmotional detachmentLack of control Economic changesNegative impression of lawyers

See M. O’Brien, et al., No Time to Lose: Negative Impact on Law Student Wellbeing May Begin in Year One (2011)

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LonelinessLoneliness

In a recent study on loneliness:“In a breakdown of loneliness and social support rates by profession, legal practice was the loneliest kind of work, followed by engineering and science. This is perhaps not surprising, given the known high prevalence of depression among lawyers.”

Shawn Achor, Gabriella Rosen Kellerman, Andrew Reece, and Alexi Robichaux, America’s Loneliest Workers, Harvard Business Review (Mar. 19, 2018)

“Research shows that loneliness has the same effect as 15 cigarettes a day in terms of health care outcomes and health care costs.” Id.

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BurnoutBurnout

Chronic stressexhaustiondetachmentsense of reduced efficacy or accomplishment

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Signs of BurnoutSigns of Burnout

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Jan Ascher and Fleur Tonies, How to Turn Everyday Stress Into “Optimal Stress”, McKinsey Quarterly (Feb. 2021)

Things to Watch For Things to Watch For

Sense of inefficacy (using always and never statements)CynicismAnalysis paralysisMissed meetings/calls, missed deadlinesDifficulty concentrating/lack of attentionShort tempered – reactivity; judgment

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In House Attorneys and Pandemic ExhaustionIn House Attorneys and Pandemic Exhaustion

15Steven Lerner, Corporate Attys Suffering from Pandemic‐Driven Exhaustion, www.law360.com (Oct. 8, 2021)

Attorney Stress and GenderAttorney Stress and Gender

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ABA Profile of the Legal Profession 2021

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Attorney + ParentAttorney + Parent

“The survey concluded that women who experienced more conflicts between work and family were four times more likely to leave the legal profession, or consider leaving, due to mental health issues, burnout and stress. Work-family conflict was also a significant factor for men, but less so, the study found.”

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ABA Profile of the Legal Profession 2021

Model Rule 1.1 Competence Model Rule 1.1 Competence

“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

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Stress and CompetenceStress and Competence

Decision Making?Difficult Discussions?Professionalism?

How we treat others

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Decision MakingDecision Making

Under stressGive more weight to each piece of evidence that support undesirable judgment/conclusioni.e., we reach undesirable conclusions based on weaker evidence

See Laura K. Globig, Kristin Witte, Gloria Fent, and Tali Sharot, Under Threat, Weaker Evidence is Required to Reach Undesirable Conclusions, Journal of Neuroscience (July 28, 2021)

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Model Rule 1.3 DiligenceModel Rule 1.3 Diligence

Client-Lawyer Relationship“A lawyer shall act with reasonable diligence and promptness in representing a client.”

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Model Rule 1.3 Comments - ProcrastinationModel Rule 1.3 Comments - Procrastination

“[3] Perhaps no professional shortcoming is more widely resented than procrastination. A client’s interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client’s legal position may be destroyed. Even when the client’s interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer’s trustworthiness. A lawyer’s duty to act with reasonable promptness, however, does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer’s client.”

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Model Rule 1.4 CommunicationModel Rule 1.4 Communication

“(a) A lawyer shall:(1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules;(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;(3) keep the client reasonably informed about the status of the matter;(4) promptly comply with reasonable requests for information; and(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”

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Duty to Report Impaired AttorneysDuty to Report Impaired Attorneys

CA Ethics Op 2021-206 “A lawyer’s impairment does not excuse that lawyer’s compliance with the rules and the State Bar Act. An impaired lawyer’s conduct can also trigger obligations for the impaired lawyer’s subordinates, supervisors and other colleagues who know of the impaired lawyer’s conduct. These ethical obligations may include, but are not limited to, communicating significant developments related to the lawyer’s conduct to the client and promptly taking reasonable remedial action to prevent or mitigate any adverse consequences resulting from an impaired lawyer’s actions. The required scope of each lawyer’s action depends on the nature of the client’s representation, the severity of the impaired lawyer’s unethical conduct, whether the client has been harmed or will be harmed by the impaired lawyer’s conduct, the nature of the lawyer’s impairment, the size of the law firm and the resources available, and each lawyer’s position within the firm.”

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Duties Related to SupervisionDuties Related to Supervision

Rules 5.1, 5.2 and 5.3“Reasonable efforts to ensure” that others comply with the ethics rules

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ABA National Task ForceABA National Task Force

The Path To Lawyer Well-being: Practical Recommendations For Positive Change, The Report Of The National Task Force On Lawyer Well-being

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Resources For LawyersResources For Lawyers

Wellness – General informationhttps://www.americanbar.org/groups/lawyer_assistance/working-group_to_advance_well-being_in_legal_profession/“Toolkits” available for lawyers and employers at same site

California Lawyers AssociationHealth and Wellness Committeehttps://calawyers.org/health-and-wellness/

State Bar of California – Lawyer Assistance Programhttps://www.calbar.ca.gov/Attorneys/Attorney-Regulation/Lawyer-Assistance-Program

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Lawyers are Humans – Humans Choose Stress

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StressStress

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StressStress

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StressStress

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Within 1 MinuteWithin 1 Minute

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Only Humans ChooseOnly Humans Choose

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Stress HormonesStress Hormones

Adrenaline -- increases heart rate, elevates your blood pressureCortisol -- increases sugars (glucose) in the bloodstream; curbs the nonessential systems Norepinephrine – more alert/awake; shifts blood to essential organs

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Space To ChooseSpace To Choose

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Why 2020-21 Stress is Different

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Neuroscience Re Covid ThreatNeuroscience Re Covid Threat

Threat detectionCovid “detected” in prefrontal cortex, not amygdala (limbic system)

How to respondAmygdala and Prefrontal Cortex gave conflicting directions

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2020-21 Many Stressors to Large Populations2020-21 Many Stressors to Large Populations

Existing problems did not vanishCOVID pandemic/healthRacial injusticeEconomic tollNatural disastersElectionLack of privacy

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Societal Calls for Lawyer InvolvementSocietal Calls for Lawyer Involvement

Election/voting rightsDemocracyRacial justiceImmigration

And the challenge of secondary trauma to responding lawyers

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Thriving With Stress

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StressStress

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Benefits to StressBenefits to Stress

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Moderate Stress Can HelpModerate Stress Can Help

ImproveMotivationAlertnessPerformanceMemory

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Protective Stress MindsetsProtective Stress Mindsets

“1) to view your body’s stress response as helpful, not debilitating – for example, to view stress as energy you can use; 2) to view yourself as able to handle, and even learn and grow from, the stress in your life; and3) to view stress as something that everyone deals with, and not something that proves how uniquely screwed up you or your life is.

https://news.stanford.edu/2015/05/07/stress-embrace-mcgonigal-050715/

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Emotional Regulation

Thoughts Are Just ThoughtsThoughts Are Just Thoughts

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Neuroscience – Label and ReframeNeuroscience – Label and Reframe

LabelingDisrupt the amygdala

Reframing

LabelNormalizeRepositionReframe

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See David Rock, Your Brain at Work, Scene 7 (2009)

ReminderReminder

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RepositionReposition

Will I remember this/are about this in:1 week1 month1 year

How much energy are you willing to expend?

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Mindfulness/Meditation

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Mindfulness: A DefinitionMindfulness: A Definition

• Paying attention • to our immediate experience of whatever is happening • with an open and curious attitude, • and a willingness to be with that experience as it is

• Capability we all have • Type of meditation &• Quality of awareness we can bring to any experience to see what is happening

with more clarity• “Free-range Mindfulness”

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Science of Awareness: Mindfulness & NeuroplasticityScience of Awareness: Mindfulness & NeuroplasticityNegativity bias: “Our brains are like Velcro for the negative and Teflon for the good.” HansonPlasticity: Our brains continue to change and we can continue to create new neural pathways “Neurons that fire together, wire together.” HansonWhat we do and practice gets stronger Mindfulness practice can:

Strengthen our ability to identify our “state” Choose our responses v. react on autopilot (amygdala hijack)Help us see “threat” more accuratelyStabilize and regulate our nervous systemStrengthen capacity to bring our care system online

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Mindfulness Changes BrainMindfulness Changes Brain

Studies showing greater gray matter brain density after 8-week mindfulness course

See Holzel, Carmody, Vangel, Congleton, Yerramsetti, Gard, and Lazar, Mindfulness practice leads to increases in regional brain gray matter density, Psychiatry Res. Jan 30, 2011; 191(1): 36–43 (2011)

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BreathBreath

You Need it!In recent study of SKY Breath meditation (focused on calm and resilience; learned over several days) in veterans with trauma

Most beneficialNormalize anxiety levels in one weekContinued mental health benefits for a full year See Emma Seppala, Christina Bradley and Michael R. Goldstein, Research: Why Breathing Is So Effective At Reducing Stress, Harvard Business Review (Sept. 29, 2020)

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Attitude Matters: “Not Judgmental” Element of Mindfulness Attitude Matters: “Not Judgmental” Element of Mindfulness

• Open, kind, accepting, curious and willing attitude is a crucial element of mindfulness practice & living• Not just “nice” - research shows it matters • Our attitudes can trigger the stress response and chemical cascade

• Fight = Anger, • Flight = Anxiety, • Freeze = Depression OR• Care = safety, regulated, calm

• Growing body of research shows self-compassion is a powerful capacity and skill to help people deal more effectively with adversities and difficult emotions • Key skill & capacity we can develop through practice, not just a fluffy, nice thought• See Kristin Neff, University of Texas. Austin - https://self-compassion.org/ (self-compassion research and assessment)

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Science of Self CompassionScience of Self Compassion

How we talk to and treat ourselves and others in times of stress mattersHow would you treat a friend or some one you love?Self-Compassion as a practice

Mindfulness – recognize the difficulty is happening in our immediate experience Common Humanity – connecting with truth that all of us experience difficulties in life and we are not alone in thisSelf-Kindness – turning toward ourselves with kindness and care and encouragement

Harness Our Inner Coach Over Inner Critic – Ethan Cross, Chatter: The Voice in Our Head, Why It Matters, and How to Harness it

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Mindfulness & CompassionMindfulness & Compassion

• May seem counter-intuitive, especially through certain cultural filters• Research Shows Self-Compassion doesn’t make us weak, selfish or lose our edge:• More effective than harsh self-criticism in helping people get through the tough times (Studies re combat soldiers and PTSD, parents of special needs children, divorce, chronic pain, illness)• Helps motivate people to stick to healthy habits rather than self-sabotaging and see setbacks as learning opportunities (The Donut-Candy Study https://compassioninspiredhealth.com/2014/09/19/self-indulgence-2/)• Helps people provide care for others in a balanced rather than self-depleting way (less burnout)• “When the going gets tough, the self-compassionate get going …” – Kristen Neff• Compassion needs some new branding!

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Getting StartedGetting Started

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Of Course – There’s An App for ThatOf Course – There’s An App for That

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Common Advice and Programs Are Rejected Because – They Take Prefrontal Cortex Resources

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Cognitive HealthCognitive Health

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Why Don’t We Take Good AdviceWhy Don’t We Take Good Advice

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Most Common AdviceMost Common Advice

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Eat: Nutrition Fuels Cognitive PerformanceEat: Nutrition Fuels Cognitive Performance

The difference between needing a food and wanting a foodDigesting excess sugars and fats

Stimulate the release of dopamineReinforces future desire for the same food

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ReminderReminder

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ExerciseExercise

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MoveMove

Exercise = resilience; connection

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SleepSleep

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Sleep DeprivationSleep Deprivation

Sleep deprivation may reduce logical reasoning, executive function, attention and mood45-54 year-olds get the least sleepIn study of 35,000 leaders, researchers found that “the more senior a person’s role is, the more sleep they get.”

Researches concluded that senior executives were more disciplined about getting sleepSee Rasmus Hougaard and Jacqueline Carter, Senior Executives Get More Sleep Than Everyone Else, Harvard Business Review (Feb. 28, 2018)

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Sleep DeficitSleep Deficit

95% of adults use an electronic device that emits light in the hour before bed50% check email overnight60% adults 18-64 keep phones next to them when they sleep50% claim they don’t sleep well because they are always connected

See Adam Alter, Irresistible: The Rise of Addictive Technology and the Business of Keeping Us Hooked, at 69 (2017) (citing Arianna Huffington’s work from the 2016 World Economic Forum and book The Sleep Revolution)

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Pro TipsPro Tips

Write it down!Calendar it!Share it with someone!

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Other Techniques to Regulate Stress

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Desk YogaDesk Yoga

Eye rollsShoulder rollsOpen chest stretch Neck stretchChair twist

See Linda Steinberg, 6 Yoga Exercises You Won’t Be Embarrassed to Do at Your Desk, HBR (Dec. 15, 2015)

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Tactile HobbiesTactile Hobbies

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Zenfy Zen Garden

Teacher Peach Motivational Stress Balls

Panic Peet

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Get a Dog (Pet)Get a Dog (Pet)

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ReminderReminder

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Corona LisaCorona Lisa

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Social ConnectionSocial Connection

Small acts of kindnessVolunteering – social connection

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VolunteeringVolunteering

CLA is a great place to starthttps://wetheaction.org/our_vision

“founded on the fundamental premise that lawyers have the power to do good.”

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GratitudeGratitude

GratitudeSee research summarized in F. Gino, Be Grateful More Often, HBR Blog Network (Nov. 26, 2013)

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PlaylistPlaylist

In research by Mindlab, listening to “Weightless,” by Marconi Union 65% reduction in overall anxiety35% reduction in resting heart rate

Playlist top 10 songs for relaxationhttps://open.spotify.com/playlist/31lxxIDyC3qYrtH6TpGFwx

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What Fresh Hell Is This? Email

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Digital Use Increases StressDigital Use Increases Stress

Distracted by external stimuliCognitive overload in working memoryAnxiety

InterruptionHyper alertExpectations of continuous response

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The Neuroscience of EmailThe Neuroscience of Email

“Skinner Box” or “operant conditioning chamber”Schedules of reinforcement

FixedVariable

QUESTION: When were rats most motivated?

QUESTION: Are you a rat?

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Neuroscience of Inbox ZeroNeuroscience of Inbox Zero

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Email StrategiesEmail Strategies

Have a routineSpecific blocks to review and respond (like a meeting)2-3 times per day

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Email Bias -- NegativityEmail Bias -- Negativity

Reader negativity bias

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Final Thoughts

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Assess the Positive and Write It DownAssess the Positive and Write It Down

Who did I help today?What impact did I have on others today?What did I make progress on today?What am I grateful for?

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Questions?Questions?

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ConclusionConclusion

These materials are intended as an introduction to the subject mattercovered in the presentation. The presentation and the materials containedherein do not attempt to provide legal advice for any particular situation.Each particular situation must be analyzed individually in light of all of thesurrounding facts and circumstances. Because of the complexity of the legalissues that will always arise in connection with the subject matter hereof, it iscritical that counsel be involved. These materials are provided foreducational and discussion purposes only and are not to be copied, used ordistributed outside of this seminar without the express written consent ofMichelle Galloway. Copyright Cooley LLP, Michelle Greer Galloway 2021.

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Documents

Best Practices for Keeping Attorney Burnout and Chronic