THE COMPREHENSIVE LAW

MOVEMENT:

Law as a Healing Profession

Professor Susan DaicoffFlorida Coastal School of Law

PREVIOUS RESEARCH

Lawyer, Know Thyself – empirically-derived traits of the “lawyer personality”

The Tripartite Crisis: deprofessionalism, low public opinion, lawyer distress and dysfunction

Focus on solutions for atypical lawyers (e.g., those with an “ethic of care,” humanitarian traits)

ABA SURVEY - 1993Peter D. Hart Research Associates

19%22%36%

63%

40%

78%

45%

7%16%

0%20%40%60%80%

1993 Peter D. Hart Survey

Caring and Compassionate Honest and EthicalConstructive Part of Community Make Too Much MoneyAre Greedy Charge Excessive FeesLack Necessary Ethics Not Honest or EthicalLiked Own M.D. Liked Own AttorneyDisliked Own M.D. Disliked Own Attny

PUBLIC OPINION POLL - 1991

22%

62%

50%

35%

24%20%

16%12%

6%

0%

10%

20%

30%

40%

50%

60%

70%

High Honesty or Ethical Standards

Lawyers

Pharmacists

Doctors, College Teachers, Clergy,Dentists, Engineers

Funeral Directors, Bankers,Journalists

Newspaper Reporters

Building Contractors

Realtors

Advertisers

Car Salesmen

DEPRESSIONAmong Law Students & Lawyers

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

ALCOHOLISMPercentage of Alcoholic Drinkers

18%

9%

0%

2%

4%

6%

8%

10%

12%

14%

16%

18%

Lawyers General Population

PSYCHOLOGICAL DISTRESSBeck, 1995-96

18%

30%

21%

7%10%

27%

16%11%

0%5%

10%15%20%25%30%

Male Lawyers Female Lawyers GeneralPopulation

Global Distress AnxietyDepression Paranoid IdeationInterpersonal Sensitivity Social Isolation & AlienationObsessive-Compulsiveness Hostility

2.27%

CAREER SATISFACTIONSatisfaction With the Practice of Law

21.20%51.20%

20.60%

6.90%

Very Satisfied

Somewhat Satisfied

SomewhatDissatisfiedVery Dissatisfied

GROWING DISSATISFACTION?Summary of ABA/YLD Surveys

3%

12%

5%

14%

7%

17%

0%

10%

20%

30%

1984 1990 1995

SomewhatDissatisfiedVery Dissatisfied

LAWYER DISTRESS: A Constant 20%?

0%

5%

10%

15%

20%

25%

30%

Depression Psych.Distress

All LawyersGeneral Population

As children Pre-law Law school In practice

Scholasticachievement

Need for achievement

leadership need dominance,leadership, &attention

incr. aggression &ambition understress

extroversion & sociability

activeapproach tolife

less subordinateand deferent,more authoritarian

prefer competitivepeer rel'p.s; don't relyon peers for support

competitive, masculine,argumentative, aggressive,dominant

Low interestin emotionsor others'feelings

Low interest inemotions,interpersonalconcerns, &others' feelings

Increased "rights"focus (justice,rationality, etc.) vs."ethic of care"

Low interest in people,emotional concerns, &interpersonal matters; prefer"Thinking" & conventional,rights-based morality

Higher SES,materialism

Decreased interest inpublic interest work

Focus on economic bottom-lineof settlement options

Normal levels ofpsychologicalproblems

Elevated levels ofpsychologicalproblems

Elevated levels of psychologicalproblems & substance abuse

HOW LAWYERS DIFFER...

THE “LAWYER PERSONALITY”

competitiveness

materialism; value economic bottom-line

need for achievement; ambitious under stress

interpersonal insensitivity

“Thinking” MBTI preference

“rights” orientationdominance

aggressive under stress

DRIVE 2 ACHIEVE

INTERPERSONAL RELATING STYLE

pessimism?

Testosterone Levels: Lawyers, Blue Collar Workers, and Other Professionals

20.427.4

90

010

20

30

40

50

60

70

80

90

Professionals Blue CollarWorkers

Professionals

Lawyers

Blue CollarWorkers

THINKING/FEELING (Myers-Briggs Dimensions - Richard, 1994)

81%

19%

60%

40%ThinkingFeeling

35%

65%

66%

34%

Lawyers - Male Lawyers - Female

Most Males Most Females

“THINKING” vs. “FEELING”Myers-Briggs Type Indicator Dimensions

THINKERS: value justice, rationality, truth, & objectivity; decisions don’t reflect own personal values; can be cold & calculating; good problem-solvers

FEELERS: value harmony, interpersonal rel’ps., praise & mercy; apply their own personal values to make decisions; seek to do what’s right for self & others; sensitive to the effect of decisions on others

MORAL ORIENTATION(Gilligan-Based Categories - Weissman, 1994)

Female Lawyers

Ethic of CareRights OrientationBalanced

Male Lawyers

Ethic of CareRights OrientationBalanced

33%

17%

50%

22%

35%

43%

“ RIGHTS ORIENTATION” vs. “ETHIC OF CARE”

Gilligan-Based Dimensions RIGHTS: weighs conflicting rights & duties;

seeks fairness, justice, & equality; maintains & applies rules, standards, & role oblig’ns. to arrive at clear, absolute answers

CARE: contextual; focuses on harm to people; seeks to avoid harm, maintain & restore rel’ps. & protect others from hurt; decides by assessing relative harm to & vulnerabilities of parties

“NEW” Lawyer STUDIES Undergraduates more likely to acquit when

defense attorney was aggressive & male Male and female trial lawyers’ testosterone levels

higher than nontrial lawyers; lawyers’ levels like other white-collar workers’ but trial lawyers’ like blue-collar workers’

Lawyers evaluate options economically ($); nonlawyers swayed by psychological factors

“NEW” Lawyer STUDIES

Private practice lawyers = prefer Introversion, Intuition, Thinking (NT); ISTJ, ENFP, INTJ ESTP,

ISFP, ESFJ, ESFP

Judges = prefer Thinking, Judging (ST); ISTJ, ESTJ ISFP

Admin. Attorneys = prefer Intuition, Thinking, Judging (NT); INTJ, ENTJ

Lawyers just like corporate executives (TJ)

“NEW” Law Student STUDIES Interest in public interest work diminishes in law

school Ethic of care is not the same as Feeling Pessimism linked to high grades & depressn

(bad things all my fault; good things pure luck / ISG vs. EUS attributions)

Optimism linked to low grades Introversion & Thinking linked to high grades

LINK BETWEEN PERSONALITY & SATISFACTION

“Thinking” Associated With Satisfaction:– “Thinking” and “Judging” Associated With Greater Job

Satisfaction Among Attorneys (Richard, 1994)

Rights Orientation Correlated With Satisfaction:– Rights Orientation Correlated With Career Satisfaction

Among Female Attorneys (Weissman, 1994)

TRADITIONAL LAW PRACTICE

Competitive Aggressive Ambitious Emphasis on winning (dominance) Rights-oriented Logical, analytical Materialistic, law-as-a-business

ATYPICAL LAWYER TRAITS

“Feeling” Preference on MBTI Ethic of Care in Moral & Ethical Decisionmaking Altruistic Nonmaterialistic Collaborative Noncompetitive Nonaggressive

LAW AS A HEALING PROFESSION - The Movement

Coalescing Extraordinary Fit With Atypical Traits 10+ “Vectors:”

– Transformational Mediation– Creative Problem Solving -Procedural Justice– Therapeutic Jurisprudence -Holistic Justice– Restorative Justice -Collaborative Law– Preventive Law -TJ/PL– Problem Solving Courts -Law & Socioeconomics?– Law & Spirituality, Mindfulness Meditation, …

March, 1998: The Vectors of the CL Movement

Therapeutic jurisprudence

Restorative justice

Holistic justice

Problem Solving courts (DTCs, DV cts, MH cts, UFCs)

Procedural justice

Therapeutically oriented

preventive law

Creative problemsolving

Collaborative divorce law

Transformativemediation

Law &socioeconomics?

Preventive law

PRECURSORS: Why now?

Shift to Post-Enlightenment philosophical values (connectedness, community)

End of the Cold War (them vs. us mentality)

Tripartite crisis in legal profession

Societal overuse of litigation to solve problems

Influx of women and others into legal profession

INTERSECTION of the Vectors

Therapeutic jurisprudence

Restorative justice

Holistic justice

Drug treatment courts; domestic violence courts;

mental health courts

Procedural justice

Therapeutically oriented

preventive law

Creative problemsolving

Collaborative divorce law

Transformativemediation

Law &socioeconomics

Preventive law1. OPTIMIZING HUMAN

WELLBEING (harmony, healing,

reconciliation, moral growth…)

2. ”RIGHTS PLUS:” FOCUS ON

EXTRALEGAL CONCERNS (needs, goals, beliefs, morals,

resources, relationships, community,

psychological state of mind …)

SubIntersections

Avoid Interpersonal Conflict & Litigation

Share Equal Power Collaborative Therapeutic Interdisciplinary Consistent w/ Lawyers’

Own Morals

ORG’L CHART OF THE CL MOVEMENT - Plus

Therapeutic Jurisprudence

CreativeProblemSolving

HolisticLenses:

Processes:Collaborative Law

Restorative Justice

Preventive LawLitigation & other judicial

processes

Facilitative Mediation

Transformative Mediation

Evaluative Mediation

Arbitration

Procedural Justice

DTC’s; specialized

courtsTJ/PL

Religious/SpiritualTraditional (win/lose – binary)

Law & Socioeconomics

Negotiation/Settlement

CHALLENGES

Need for synthesis; divisiveness of vectors Ethics code’s emphasis on zealous advocacy Law’s traditional emphasis on individual rights CLP seen as paternalistic Need for addt’l training of lawyers Personality misfit for many lawyers Glacial rate of change in legal education Marginalization as feminine, female

PROPELLERS

Low public & client satisfaction w/lawyers Low public opinion of lawyers Lawyer job dissatisfaction & distress Overuse of litigation as problemsolving strategy;

litigiousness of society Societal need for better conflict resolution

processes Philosophical shift towards “connectedness” Feminine values balancing masculine values

APPLICATIONS

Law school courses CLE for lawyers Post-graduate LL.M. programs Retooling of experienced, burnt out lawyers Attracting different personality types to law school Improving client and societal satisfaction with law

and lawyers Improving society’s conflict resolution skills

CONCLUSIONS

“Lawyer, Know Thyself” Goodness of Fit Between Personality and Practice Equality of Comprehensive Law Approaches and

Traditional Law Practice

Thank you for viewing. All information derived from empirical studies conducted by others.

Citations available on request or in my bibliography (on web page).

Comments welcome - please e-mail me at sdaicoff@fcsl.edu