DaveShearon

A Response to Jordan Furlong

In a post at Law21, Jordan Furlong claims that no one wants to ask whether Mandatory Continuing Legal Education programs work, i.e, that they improve attorney competence. He suggests there is no evidence. There is. But MCLE organizations do need to pay more attention to the evidence.

Evidence for the effectiveness of MCLE: New York Study of CPE for Accountants

New York implemented mandatory CPE for accountants in the mid-90s and the state legislature required a study of effectiveness as part of that implementation. The study was run by Arden Grotelueschen, PhD, University of Illinois who was, at the time, the leading exert in the world on continuing adult professional education. They spent a half million dollars and concluded:

1. Mandatory programs increase partcipation in continuing education, and
2. Increased participation in continuing education correlates with increased knowledge.

So, what those of us who have been involved in MCLE for decades have always assumed - that attending CLE programs would increase lawyer knowledge levels - turns out to be validated. Who wants to argue some state or province should repeat this study just to show the same in law?

(As far as I can tell, the technical reports from this work aren't online anywhere, but I've got a scanned copy. Email me, dave.shearon at thrivinglawyers.org, and I'll send you the file.)

Evidence for the effectiveness of MCLE: Lawyer Response

Jordan also suggests asking lawyers about MCLE. Again, it's been done. Repeatedly. In multiple states. Over more than a decade. And the results are always the same: overwhelmingly positive responses indicating they approve of MCLE, they think it is making them a better lawyer, and they think it is making others a better lawyer. This data is online: Mandatory CLE Survey Analysis.

But, the competence criticism has some validity.

I agree with Jordan about the lack of purpose statements for MCLE programs. Basically, the writers of the Rules for the first programs back in the 80s appear to have assumed purpose was self-evident, and later drafters copied. However, after 24 years of leading an MCLE program, I can tell you that, in practice, the purpose evidenced by the behaviors of many state MCLE programs does not appear tightly focused on competence.  Many (most?) don't approve the type of training most needed to improve competence.

First, lack of knowledge of the substantive law is not the cause of most instances of poor lawyering. In a Tennessee survey, only about 16% of lawyers picked that as the primary cause. A whopping 84% went with either lack of law practice management skills or lack of commitment, energy and engagement with the law. See: "Causes of Poor Lawyering". As a result of its study in this area (and, yes, at my urging), Tennessee changed it's regulations on MCLE accreditation to specifically approve both personal coaching in defined formats (a change that has not seen much use) AND adopted Regulation 5H.2 that provides:

2. Dual credit will also be granted to programs or topics: 

a) designed to sustain or increase the capacity of attorneys to strive for and to achieve the highest, aspirational levels of professionalism, including programs aimed at increasing attorney well-being, optimism, resilience, relationship skills, and energy and engagement in their practices, 
b) designed to help lawyers re-connect with, strengthen, and apply their values, strengths of character, and sense of purpose toward achieving outstanding professionalism, 
c) designed to protect lawyers or help them recover from the deleterious effects on professionalism of stress, substance abuse, and poor staff, financial, or time management, or
d) designed to support the development of organizational cultures within firms, law departments, and legal agencies that recognize, support, and encourage outstanding professionalism.

Dual credit means credit that counts for either the Ethics/Professsionalism or the General requirement - it's the most valuable type of credit for compliance.

 

In addition, Tennessee has now undertaken an experiment in acccrediting mentoring (voluntary) for CLE, and the approach requires substantial training for mentors around the powerful negative impact of law school on the motivation and well-being of law students, the aspects of that impact that continue and are reinforced in practice, and key skills and practices that can re-build, maintain, and enhance levels of commitment, energy and engagement that lead not only to satisfaction in the practice, but also to the highest levels of professionalism and client service.

So, MCLE works to build knowledge, but many MCLE jurisdictions should not only accredit programs focused on helping lawyers engage better with their practices, peers anc clients, they should encourage the provision and participation in such programs through explicit approval language and no-limits accreditation.

 

Great Week Ahead

When you find something you love, do more of it. I love training the skills that help folks bounce back and bounce forward, whether it's with the Army, with teachers using Smart Strengths, or with my fellow lawyers. This week, I get two opportunities! First focusing on strengths in a CLE program sponsored by the Memphis Bar Association on Thursday, then in a joint program with Candice Reed that we are putting on here in Nashville on Friday!  Even with the pressure of finishing up materials and the anxiety of trying out some new approaches, I am excited. I love it. which tells me I need to do more of this in the new year. Roger. Wilco!

Apparently, you can be a great law school dean and totally fail at Job 1!

Brian Leiter's Law School Reports has a post about ten "transformative" law school deans in the last decade.  Wow.  Talk about detached from reality.  Not one word about Job 1 for a law school:  helping law students become successful as lawyers, citizens, community members, leaders, and human beings.  And, even more than that, not one word about the absolute disaster law school is personally for a large percentage of law students; that it generates exceptionally high depression, cynicism, out-of-control aggression, hostility, poor sociability, drinking as a coping response and other counter-productive patterns of thinking, feeling, and acting.  No, it's all about "intellectual identity" and "scholarly profile."  Really.  I sometimes wonder how many law professors care what's happening to students in their school.  Some clearly don't.

Yes, law schools teach law students to "think like lawyers" (a necessary but insufficient part of actually practicing law!)- and that "think like a lawyer" training is devastating to many of those students.  Come on deans, focus! We desparately need lawyers who are in touch with their values, engaged, collaborative, able to find emotionally intelligent pathways forward in situations beset by the unique challenges to thriving present in many legal matters.  and .  Not to mention who can help create legal and regulatory approaches that work better for society.  You're really not doing a very good job of that (and that includes you, Tier 1!). 

So how about a little evidence you have some clue what is important?  If nothing else, you could at least contact Larry Krieger and Ken Sheldon and make sure your school is getting accurate data on what's happening with your students.  Or would you rather not know?

 

Want to know more about Law's Five Challenges to Thriving? 

Want some suggestions for ways to improve your level of thriving in the face of those challenges?  From now through Sunday, August 28, 2011, I will send a free copy of "Thriving through Law's Five Challenges" - a 24 page paper about the challenges and ways to thrive in the face of your particular configuration of those challenges - to anyone who registers for the Thriving Lawyers Newsletter at: http://www.thrivinglawyers.org/newsletter-more.html

If you would like CLE credit for learning about the Five Challenges and you are in Illinois, New York, Tennessee, Texas, or Rhode Island, our special offer continues - $49 for 3+ hours in two courses!

Curiosity and lawyers

Todd Kashdan, the preeminent researcher on curiosity, has written a great column on "Can Curiosity Be Learned?"  Since curiosity is one of only three character strengths that lawyers seem to endorse more strongly than the average American, it may be a great pathway for lawyers to use to re-connect with values, purpose, and, ultimately, meaning in life.  (Start discovering your strengths here.)  Those are steps along one path to greater well-being. Todd also includes the best couple of paragraphs I have seen on cultivating mindfulness through either formal disciplines (meditation, yoga) or in the course of daily living.  The body empirical evidence of the benefits of mindfulness is strong and Todd's suggestions point to ways to get started.

Photo:  "Bunch of Fun" by makelessnoise.

Lawyer Depression

From the New York Law Journal via law.com comes a story about Daniel Lukasik, a lawyer in New York taking action to help create better opportunities for lawyers to battle depression.  Among other things, he has created a website www.lawyerswithdepression.com.

Here's a quote from the story (although from another attorney):

"Getting from the bed to the couch was sometimes all I could do," he said. "Getting my clothes on and brushing my teeth were huge obstacles. Before getting into my car and driving downtown, I'd sit in a chair for an hour, summoning my courage. Sometimes I'd turn around and come back home. Or I'd sit in my car for 45 minutes before going into the office. And when I got in, what would I do? I'd stare out the window."

One of the reasons I focus on well-being is that many of the approaches to increasing well-being have also been shown to decrease depression and the chance of relapse.  Further, since clinical depression is but one point along a downard slide, a focus on well-being can help attorneys who are losing productivity to depressive thinking and feeling, even if they are not "depressed" in a clinical sense.

All the best to Mr. Lukasik and those who are working with him!

Seven Positive Psychology Steps to Thriving in Law School

Lots of students are starting law school for the first time.  Although they may not know it yet, they are heading into a set of experiences that many find extraordinarily toxic. Studies going back more than 15 years have repeatedly shown that law students suffer significant negative psychological changes during law school. Although they look much like other undergraduates coming in, by the end the first year 30% are depressed, and it goes to 40% by the end of law school. Drinking as a coping behavior goes up. Anxiety, hostility and paranoia increase.  And, there is a shift from intrinsic to extrinsic motivations for practicing law. In other words, students go from wanting to do good to wanting to get the goods.   And these trends continue into practice where lawyers lead the professions in the rate of depression.

However, beyond just avoiding bad things, recent research in positive psychology suggests reasons to maintain a positive emotional space. In general, we are more creative, better able to connect with others, more action oriented, more helpful, and better leaders when we are experiencing significantly more positive than negative emotions. This is Barb Fredrickson's "Broaden and Build" explanation of the results that have been found in positive psychology. Basically, this theory states that the evolutionary function of positive emotions is to help us broaden our thought/action repertoire and build psychological and social capital.

Here are some positive psychology suggestions to help navigate the experience:

#1. Other people matter.Pay attention to relationships. If you are in law school in the same area where you did your undergraduate work, stay plugged in with your friends, including those who aren’t in law school. If not, start looking for ways to build a set of friends both inside and beyond the law school. Friends are important to your health and success – and they help to make life worth living.  If you are married, you are likely newly married. Work on the relationship. For ways to improve both friendships and marriages, I recommend the work of John Gottman.  Also check out Tom Rath's Vital Friends.

#2. Sustain your positive emotional base (or, how to stay happy).I don't have the space here to go into all of the research findings that support Dr. Fredrickson's "Broaden and Build" work, but it is very clear that frequent and sustained positive emotions are important not only for well-being, but for health, relationships, and success in work and life. If you want a baseline for how happy you are now, take the “Authentic Happiness Index” at www.authentichappiness.org.

Several of the suggestions here will work to increase and sustain positive emotions, but one simple and pleasurable activity is called "Three Good Things." This activity has been proven to boost happiness and decrease depression in a large scale, placebo-controlled study. At the end of each day, take a few minutes to write down three good things that happened that day, why each one happened, and what you had to do with it. They can be big things or small; experiential, relational, or professional. Over time, your writings may become the source of some insight into how you approach life and the types of events you tend to notice, but don't overthink this one.  Write ‘em down and go to bed!

#3. Remember your strengths – ALL your strengths. Law school has a tendency to focus on only a very limited range of strengths, mostly centered on verbal skills and analytical thinking. While important for legal analysis and reasoning, there are many other vitally important strengths for leadership, organizational and personal growth, building meaning, and other important tasks in life and in the law. Many of us don’t know our own strengths very well because they seem so, well, unexceptional. Within our strength patterns, we act effortlessly and almost flawlessly. We think very little about the excellence of our contributions and frequently assume such behavior carries little value. But positive psychology research has shown than utilizing our strengths in new ways can make us happier, healthier, and more successful. And by learning more about our strengths, we learn to see strengths in others, and that boosts #1 above.

To help you recognize some strengths you may have taken for granted, here are two resources:

The Values in Action Signature Strengths Survey www.authentichappiness.org. This is a 240-item questionnaire that will take you around 35 minutes to complete. This instrument produces a rank ordering of 24 character strengths that have been ubiquitously-valued around the world for 3000 years. Others will feel uplifted when you're acting from your strengths and therefore like you better, and you will be happier. Thus, using strengths works to build your well-being and that of those around you in multiple ways. From your top-listed strengths, pick the 3, 4, or 5 that seem really “you” and each week think of a new way to exercise one of them. This effort has been proven to reliably increase happiness for most individuals, and it is fun! Do it in combination with a friend to build the relationship. $0

Strengthsfinder 2.0.This tool focuses on a set of action strengths that matter in the workplace, as opposed to the strengths of being, or character, that are the focus of the VIA. The book provides background information on the development of Gallup's strengths survey instrument and an access code to take the online questionnaire. The book also provides a brief chapter on each of the 35 strengths of action. $12.

#4. Watch your explanatory style. Each of us tends to explain the good and bad things that happen to us throughout each day. Little things and big things, we explain them all. We are generally unaware of this running explanatory commentary in our heads, but it is there, and we tend to follow patterns. To learn your style, take the "Optimism Test" at www.authentichappiness.org.

Those with a positive explanatory style assign me/always/everything causal explanations to the good things that happen in their lives and out there/only that/over and done with (or “not me/not always/not everything”) explanations to bad events. This leads to greater resilience, greater productivity in business and sports, better marriages and other relationships, and other good things. Of course, accurate thinking is the goal, and for many of us that means seeing the causes that our primary explanatory style tends to hide from us. But, in ambiguous circumstances, go with the positive style – it tends to work better.

If you want to modify your style, you can find more explanation in The Resilience Factor and The Optimistic Child. Each is under $12.

Because of the high incidence of depression in law school and the practice, explanatory style is especially important. Depression tends to return and multiple bouts can lead to long-term susceptibility and serious health consequences. Plus, frankly, depression sucks. Don’t go there if you can help it. And you can help it. Developing and maintaining a positive explanatory style (“optimism”) has been shown to drastically reduce the likelihood of depression. And optimism energizes and enables. If your Optimism Test shows you in the pessimistic range, buy a book and get started! You can change.

#5. Exercise.Tal Ben-Shahar, Harvard, summarizes the research on the relationship of exercise to depression by saying, “Exercising is not like taking an anti-depressant. Not exercising is like taking a depressant." Extremes aren’t needed. Thirty minutes of brisk walking three times a week is enough.

#6. Do steps 1-5 with friends.  Other people matter.  All of these efforts are easier, more fun, and more productive with a friend or friends.  Doesn’t have to be the same person or group in each area, but think about inviting others to join you. Maybe a reading group to read and work through The Resilience Factor. Maybe some friends to hike, run, play ball or otherwise exercise with. Doing Three Good Things with a significant other will build that relationship. Same for finding new ways to engage your strengths together.  Ask someone!

#7.  Remember (or find out) why you want to be a lawyer.  I mentioned above that one of the effects of law school is that students (especially those who get better grades) tend to switch from intrinsic (internally valued and rewarded) to extrinsic (externally valued and rewarded) goals.  This can mean a switch from wanting to go into public interest law to choosing to go to a large firm.  It can mean a switch from wanting to practice in one's home town to going where you are offered the most money.  Whatever the switch, if it is driven by values and rewards that come from the outside, not the deepest and most meaningful personal ones, be wary!  This switch often comes back to haunt lawyers, sometimes within a few years of starting to practice, sometimes many years later.  Either way, it is much harder to switch back once experience and responsibilities have shaped you to a particular position.

If you know why you went to law school, keep it in mind.  Learn more about the opportunities in that type of practice.  Seek out mentors in the field.  Look for folks who are happy, positive, and satisfied with their practice and lives who have done what you want to do and connect with them.

If you don't know why you went to law school, i.e., "because I didn't get in medical school" or "because I couldn't think of anything else to do" or some other vague, unfocused reason that doen't give you a direction to the future, now is a good time to start finding your own vision.  I have left this suggestion until last for a reason.  You will be much better able to identify your personal values and see a path forward to a practice that is satisfying and sutainable if you are working from a base of positive emotions and relationships.  Remember "Broaden and Build"?  That's the emotional space you want to be in as you develop a vision for your first years out of law school.

There are other hints, tips, and techniques for building and sustaining well-being, but these are foundational and ongoing. They are offered with best wishes for a great law school experience!

Dear Ann Althouse -- No, it's not ok

Ann Althouse is a great writer and a clear thinker, but in her February 20 New York Times column “A Skull Full of Mush”, she writes about something close to her -- teaching law -- and gets it wrong.  She ends the column this way:

"The students who come into our law schools are adults who have decided that they are ready to spend a tremendous amount of time and money preparing to enter a profession. We show the greatest respect for their individual autonomy if we deny ourselves the comfort of trying to make them happy and teach them what they came to learn: how to think like lawyers."

Ms. Althouse is responding to an issue that is rapidly gaining attention in the world of legal education: the tremendous damage that going through law schools does to many students.  Studies going back more than 15 years have repeatedly shown that law students suffer significant negative psychological chages during law school.  Although they look much like other undergraduates coming in, by the end the first year 30% are depressed, and it goes to 40% by the end of law school.  Drinking as a coping behavior goes up.  Anxiety, hostility and paranoia increase.  And, there is a shift from intrinsic to extrinsic motivations for practicing law.  In other words, students go from wanting to do good to wanting to get the goods.   And these trends continue into practice where lawyers lead the professions in the rate of depression. To put it mildly, this is not good for clients!

Ms. Althouse's position is a very convenient one for a law professor.  “Hey, what I’m doing is just fine!  In fact, it’s good for them!  And don’t your dare suggest otherwise!” And she's not alone here. Another law professor, James J. White put it:

"Until better data come forward, I will continue the traditional law teacher's reign of pillage and abuse.  I do that happy in the belief that my hectoring will leave my students better, if momentarily sicker, lawyers."

Mr. White seems to suggest we are currently doing an acceptable job of creating a great start in the law for new lawyers.  Actually, that's not fair. What he suggests, like Ms. Althouse, is that the only job of law schools is to teach students to “think like lawyers.” This, of course, is not what either the students or the public wants from law schools – we want those schools to teach students to be lawyers. And good ones. We most definitely are NOT OK with law schools pumping out depressed, unhappy students to face an extraordinarily tough transition into the profession without a healthy mindset to support them in that effort.

Anyone see the connection to concerns about professionalism here? In fact, we roll students out of law school reeling from three disorienting, unsatisfying, mind-numbing years that they hate in overwhelming numbers to face a transition into a very demanding profession that is a significantly more stressful today than it was just a few decades ago. Then we do virtually nothing to assist in that transition.  Why are we surprised when lawyers fail to flourish and the profession comes under increasing public hostility that stems, at least partially, from the root of unhappiness that is planted in law school?

I am in favor of helping students better cope with the challenges of law school. Positive psychology has developed proven approaches that can help students develop and maintain positive explanatory styles to ward off depression, experience more positive emotions so their base for learning, cooperation, and pro-social behavior will remain strong, and develop stronger relationships that will sustain them through their professional and personal lives. Law school should feel an strong sense of urgency about making training in these techniques available to students. Significant components of that training are available in web-based formats and could be rolled out for a tiny, tiny fraction of the tuition charged by even the most modest law schools, let alone the elites.

Beyond that, we need to consider carefully why law school is so damaging (and, yes, it seems more so than other post-graduate options). The discomfort some on legal faculties may feel at the possible disruption of a system that works for them is understandable, but most will surely be willing to engage in the effort for the good of students and society. And, when they do, I think they're going to be proud of the results.

Preparing to teach

I've been really wrapped up the last few weeks getting some new initiatives off the ground.  Several are focused on attorney well-being, an area of focus for both the Commission and the Tennessee Bar Association.  One of those initiative is series of CLE programs during the next few months co-sponsored by a number of organizations.  I'll be piloting the first hour of that presentation tomorrow at the Tennessee Alliance of Legal Services' Equal Justice Conference.  I like how it's coming together and am eager to get feedback.  Here's information about the programs coming up:

Lawyering & the Good Life

… (things they didn't teach you in Law School )

Don’t come to this seminar if:

·         You get up almost every morning feeling positive about your day

·         At the end of most days, you wonder where the time went and feel you accomplished a lot

·         You feel your work and your life have meaning

·         Your relationships with family and friends are close and satisfying

·         You take regular vacations and have regular hobbies you enjoy

·         You feel that your work and  community service regularly call on you to do what you are really good at

If, however, you’d like to have a fuller, more satisfying life in any of these areas (and become a better lawyer!), then this seminar could be for you!

9:30 – 10:00  Registration

10:00 – 11:00   Positive Psychology, Human Flourishing, and the Good Life

11:00 – 12:00   What About Lawyers?

12:00 –   1:00   Lunch (provided by Counsel on Call)

  1:00 –   2:00   Panel – What can you do with a law degree?

  2:00 –   3:00   Tying it all together – A way forward

Dave Shearon, JD, MAPP Executive Director of the Tennessee Commission on Continuing Legal Education and Specialization

Andy Branham, JD and Candice Reed, JD Executive Directors of the Memphis and Nashville offices of Counsel on Call

Laura Gatrell, LSN, Executive Director of the Tennessee Lawyers Assistance Program

You will learn proven techniques to increase your orientation toward the positive in life and work.  You will also gain insight into how to build a work environment that is both more enjoyable and more productive.  Dave will draw on his Masters in Applied Positive Psychology to explain why it matters whether you, your partners, and your staff are happy, hopeful, and optimistic.  Andy and Candice will introduce unusual ways lawyers have engaged their knowledge, experiences and skills both inside and outside of the traditional practice of law.  Laura will speak on what TLAP is; how it functions, what it has done for lawyers around the state and how it might help someone you know. 

For quality reasons, pre-registration is required and space is limited at each site.

To register:  Call (615) 383-7421or go to www.tba.org/TennBarU/index.html.

Co-sponsored by Counsel on Call, Tennessee Lawyers Assistance Program, Tennessee Bar Association, Lawyers Association for Women, and the University of Tennessee College of Law

$29.95 for 4.0 hours of dual credit

All proceeds to TLAP

Dates:

November 1, Memphis, International Paper

November 17, Nashville, Tennessee Bar Center

November 30, Chattanooga, Miller & Martin

December 14, Jackson, Jackson-Madison County Library

January 19, Knoxville, University of Tennessee College of Law

Is help getting into law school a good thing?

This post at The Volokh Conspiracy deals with current discussions within the American Bar Association about actions law schools should or should not be taking to assist minority applicants in obtaining admission.  Of course, I understand that the idea is that a law degree and, ultimately a license (another issue, as that article notes) can (but do not necessarily) open doors to highly remunerative jobs.  But, although entering law students look much like other college graduates, by the end of the first year, about 30% are depressed.  By the end of law school, it's 40%.  For practicing attorneys, depression rates seem to stay at 2-4 times the general norm.  Further, during the law school, the top students, especially, tend to go from intrinsic motivations ("I want to do good") to extrinsic reasons for practicing ("I want to get the goods.")  This is not a good thing for their future happiness.

Larry Krieger of Florida State School of Law and Ken Sheldon, Psychology, Missouri, are carrying forward a research program in this area.  This article by Larry Krieger gives some suggestions for law students based on their work.