Health and Wellness


How Judicial Officers Can Assist in the Creation of Mental Health of Attorneys While Supporting and Aiding the Delivery of Justice

By Erin Joyce, the Hon. Kevin Rosenberg and Carolin Shining1

The American legal profession has long been considered the pantheon of balancing issues in order to create justice. Yet balancing personal well-being with the need to provide zealous representation of clients is proving more difficult every day. Judges are not immune: rapidly growing dockets create immense tensions between offering swift justice and the hard work needed to accomplish such an important task. Indeed, one wonders if new lawyers understand that their desire to benefit their clients through zealous effort might be repaid in the form of increased stress, anxiety and other debilitating mental health issues?2 National studies and data increasingly suggest that the adoption of new strategies by judicial officers can help reduce these burdens. Through their unique leadership positions, judicial officers can have an immediate impact on the trust and well-being of our judicial system. Action by our judiciary can literally help to save lives and improve the cause of justice.

I. Despite Growing Awareness, Mental Health Issues Continue to Disproportionately Ravage Attorneys

The grim data is undisputed. Lawyers face disproportionate levels of addiction and mental health problems. The image of attorneys suffering from debilitating alcoholism and substance abuse has even become engrained in our popular culture.3 Substance abuse is also only one of a multitude of issues that impact the profession: "Mental health disorders can profoundly affect attorneys' daily functioning. Irritability, obsessive thoughts, feelings of inadequacy, difficulty concentrating, a sense of worry and impending danger, sleep disturbances, heart palpitations, sweating, fatigue and muscle tension are all side effects of anxiety and depression….. Some attorneys withdraw from peers, friends and family or engage in "maladaptive coping behaviors…. "4

Along with this list of terrifying consequences of stress, there is another simple but important source of dissatisfaction: simple perfectionism. Legal professionals are driven to strike for perfection, but perfectionism by itself is a major psychological obstacle to well-being and happiness.5 National judicial and bar association task forces continue to cry out for creative strategies.6 The authors of these articles reiterate the need for increased civility and consideration of new strategies. Increasingly they call on judges to take center stage as leaders in this movement. In 2019, comments in the National Center for State Court’s report on the Opioid crisis were particularly apt: "Addressing the needs and concerns of judges and court employees is paramount if we are to gain and maintain the public’s trust and confidence that our courts will administer justice fairly among cases where eviction, child protection, public safety, and the resolution of civil and family disputes are at stake."7 However, it is insufficient to pay lip service to these reports and their findings. More commissions, review and discussion won’t tip the scales. Indeed, one wonders if “crisis fatigue” has begun to take hold of the legal profession which seems stymied in its efforts to case a dent in the malaise that has been exacerbated over recent years. Fresh approaches are needed.

II. So What Can Judicial Officers Do to Impact Attorney Mental Health?

The health of litigants in a courtroom may often seem beyond the ability to impact the behavior of others. Importantly, a judicial officer cannot be seen as favoring one party over another. Moreover, judicial officers must be mindful not to interfere with the attorney-client relationship by commenting on an attorney’s conduct or performance, even if there is a well-intentioned and authentic concern about an attorney’s well-being. Yet the ability of a judge to shape the procedure and policies in their courtroom for good cannot be overstated. As stated by the National Center for State Courts in its report on the opioid crisis, “[j]udges are in a unique position to bring together stakeholders to form partnerships and multidisciplinary teams that can achieve successful outcomes.”8 A picture of some of the stress-reducing tools reveals that some of these strategies may be simple to adopt and enforce. Go Beyond Mere Civility Guidelines: In 1999, an oft-cited publication by Professors Lynne Andersson and Christine M. Pearson brought the growing issue of incivility in the workplace to national attention.9 Courts large and small have adopted civility guidelines are an encouraging start. Judicial leadership can help pave the way to increased satisfaction in our profession: • When setting hearing dates, consider avoiding setting important, time-consuming matters for Mondays which encourage working all weekend to perfect a brief or oral argument; • Directly ask about and consider the needs of parents in dual-job households by offering novel trial timing strategies (such as four days per week or five-hour blocks from 8-1 pm, for example); • Distribute civility guidelines from one’s court system directly in hard copy in courtrooms, and make it required reading for all participants; and • Urge legislators and rule-makers to make civility guidelines more than guidelines but have the force of law.

Actively and affirmatively cultivate competence: Professors Krause and Chong note that “well-being is an indispensable part of a lawyer’s duty of competence.”10 They note that the converse is also true – promotion of a lawyer’s competence builds satisfaction, self-image and professionalism. If a judge takes even a small amount of time to encourage a new lawyer and demonstrate patience and calm, the impact on may be transformative. While the pressure is great to move cases along, even small acts can create an indelible impression that may be life changing. Pay attention to stressful situations among litigants surrounding scheduling and briefing: Often, battles among litigants take place over simply scheduling issues. Again, there is no proscription against paying attention to scheduling and affirmatively volunteering to give additional time to parties who do not dare to ask. State that your schedule may account for reasonable requests and extensions. Set trial dates by agreement with the parties. Alert counsel often to court rules but also how exceptions and extensions may be given.11 Encourage pro bono efforts: Attorney well-being is not just about reducing time worked and the stresses of litigation. Many lawyers chose to join the legal profession in order to rectify injustice and make a different in civic culture. Whether it is through engagement in bar association connections or elsewhere, judges may seek to offer and inform attorneys that pro bono opportunities both large and small are available. Many busy lawyers say that their ability to work on pro bono matters as a part of their practice provide fulfillment and enjoyment.12

Professors Krause and Chong note the following: “If lawyers, on a mass level, are being denied the ability to take on work from which they can derive fulfillment and a sense of purpose reflective of their interests and values—within a profession that purports to be a primary force in assisting clients from all walks of life, rectifying injustices and championing social causes, and modeling the virtues of “deliberative judgment and public-spirited concern for the good of the law as a whole” then the problem starts with the priorities of the bar.”13 Building relationships with lawyers: The personal touch of having discussions off the record and in chambers may also encourage civil behavior. Other tools such as informal discovery conferences already avoid contentious motions filed for mere scorched earth tactics. Attendance at bar association luncheons can also strengthen a trusted community of lawyers in your jurisdiction. Cultivate an atmosphere that promotes/supports wellness: Judicial officers can lead by example by taking better care of themselves and encouraging other participants in the judicial system to do so as well by sharing their experiences and knowledge. Ways that judicial officers can do this include: acknowledging when you are having a difficult time, identifying what you can control and what you cannot, think QTIP – “quit taking things personally,” be present, be in the moment if you can, practice gratitude every day, remember to smile and look for opportunities to be positive, go out of your way to connect, get out or get physical, in nature if possible, eat food that is healthy for your body and brain, read books or listen to audiobooks or listen to music, engage in hobbies, and reach out to professionals for support and therapy if you feel the need.14

A 2013 publication by the National Judicial Council also identifies simple rules that may go a long way toward increasing the mental health of all litigants, be they attorneys, judges or judicial staff”.15 The Golden Rule writ large may go a long way: 1) Prioritize courtesy: The judge is perceived as a leader in and out of the courtroom. the judge should model respect and courtesy at all times through his or her own behavior, the judge sets the tone with court staff, attorneys, parties, jurors, and witnesses. Further, the judge has the responsibility to address incivility in a positive manner whether in chambers, the courtroom, the courthouse, or the community. 2) Be timely: Timely justice is best honored when all matters begin and end according to a reasonably-set schedule. Maintaining a well-run schedule with accommodation as required shows respect to court staff, attorneys, jurors, parties, and witnesses. 3) Preserve and improve the law. This principle of civility is especially critical for judges in their leadership role. As leaders, it is important that they take a strong role in ensuring that all persons receive fair, timely and equal treatment under the law. 4) Simply Communicate. It may absolutely go without saying but clear, concise, and informative communication from the judge is imperative to procedural fairness. In addition, calmness and even humor may be the best way to relax tensions and allow the parties to focus on their arguments and positions, and not posturing and puffery.

III. Conclusion

The impact that the judiciary may have on attorney well-being cannot be underestimated. It is time to strengthen and support the leadership positions of members of the bench to help address the issues plaguing attorneys and attorney mental health. APPENDIX A: Additional Resources California Lawyers Assistance Program: 877/LAP-4-HELP (877/527-4435) The Other Bar, a confidential counseling program for lawyers dealing with alcoholism and other substance abuse, at www.OtherBar.org or 800/222-0767 LifeRing, a program of peer support groups, at www.LifeRing.org or 800/811-4142 National Task Force on Lawyer Well-Being, American Bar Association, the “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change (2017) National Task Force on Lawyer Well-Being, “Report from the National Task Force on Lawyer Well-Being, November 09, 2018 (https://www.americanbar.org/groups/lawyer_assistance/task_force_report/ https://lawyerwellbeing.net) National Center for State Courts, 2019 Report of the National Judicial Opioid Task Force, (Courts as Leaders in the Crisis of Addiction”) (https://www.ncsc.org/information-and-resources/resource-centers/resource-centers-items/opioids-and-the-courts/resource-center) Report from the National Judicial Task Force, “Addressing the Mental Health and Well-Being of Judges and Court Employees”, January 16, 2021 (https://www.ncsc.org/__data/assets/pdf_file/0023/59603/Addressing-the-Mental-Health-and-Well-being-of-Judges-and-Court-Employees-Final.pdf) The California Judge’s Association Mindfulness and Wellness Committee’s Wellness and Resilience portal: https://caljudges.org/mwp/

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Endnotes: 1. The Hon. Kevin Rosenberg is a Superior Court Judge in Los Angeles County; Erin Joyce is the principal and owner of Erin Joyce Law specializing in attorney ethics and State Bar defense, and Carolin K. Shining is the principal of Shining Law Firm and is a Certified Optimize Me Life Coach. 2. See e.g., Krause and Chong, LAWYER WELLBEING AS A CRISIS IN THE PROFESSION, South Carolina Law Review, (2019) Vol, 1, pp. 204-244, 235; see also and Krill, Johnson and Albert, THE PREVALENCE OF SUBSTANCE ABUSE AND OTHER MENTAL HEALTH CONCERNS AMONG AMERICAN ATTORNEYS, Journal of Addiction Medicine, January/February 2016, Vol. 10, Issue 1, pp. 46-52 and Rothstein, “LAW STUDENTS AND LAWYERS WITH MENTAL HEALTH AND SUBSTANCE ABUSE PROBLEMS: PROTECTING THE PUBLIC AND THE INDIVIDUAL”, University of Pennsylvania Law Review, (2008) Vol. 69: 531. 3. Numerous movies and television series center around attorney addiction including: “Puncture” starring Chris Evans (2011), “Michael Clayton” starring George Clooney (1991); “The Verdict”, starring Paul Newman (1982) and “…And Justice for All” starring Al Pachino (1979) to name only a few. See also, Brian Cuban. See “What Addiction Movie Are You?”, November 18, 2016, https://abovethelaw.com/2016/11/what-addiction-movie-are-you/; Cuban, Brian, THE ADDICTED LAWYER: TALES OF THE BAR, BOOZE, BLOW AND REDEMPTION (Post Hill Press, 2017); and “The Lawyer, The Addict”, New York Times, 2017, https://www.nytimes.com/2017/07/15/business/lawyers-addiction-mental-health.html. 4. Gordon, Leslie, “How lawyers can avoid burn out and debilitating anxiety”, ABA Journal, July 1, 2015 (https://www.abajournal.com/magazine/article/how_lawyers_can_avoid_burnout _and_debilitating_anxiety) 5. Ben-Sharar, Tal, “The Pursuit of Perfect: How to Stop Chasing Perfection and Start Living a Richer, Happier Life (McGraw Hill Education, 2009); Sapolsky, Robert, “Why Zebras Don’t Get Ulcers: The Acclaimed Guide to Stress, Stress-Related Disorders and Coping (Holt, 3rd Ed., 2004). 6. A listing of these some of the more well-known reports is provided in Appendix A – citations are shorted in the body of this article to reference Appendix A, supra, for simplicity. 7. 2019 National Center for State Courts, Report of the National Judicial Opioid Task Force, (Courts as Leaders in the Crisis of Addiction”) (https://www.ncsc.org/information-and-resources/resource-centers/resource-centers-items/opioids-and-the-courts/resource-center) (“Opioid Task Force”), at page 7. 8. Opioid Task Force, see Appendix A, at page 12. 9. Andersson and Pearson, “Tit for Tat? The Spiraling Effect of Incivility in the Workplace”, Academy of Management Review, 1999, Vol.24, No. 3, 452-471. 10. Krause and Chong, “Lawyer Well-being as a Crisis in the Profession, May 8, 2020, South Carolina Law Review, Volume 71, page 326 (citation omitted.) 11. National Judicial Counsel, “The Principles of Civility: A Guide for Judges”, Element 4, https://www.judges.org/wp-content/uploads/2020/03/Civility_Benchcard_NJC_2013.pdf; see also Task Force, supra, at pp. 1-2 (“[c]ourt leaders set the tone….”) (Civility Bench Card). 12. Krause and Chong, supra, page 239. 13. Id., at page 239-240 (citations omitted) 14. Mr. Patrick Krill, JD, LL.M., MA, Founder and Principal of Krill Strategies, March 16, 2021 presentation to the California Judge’s Association. Mr. Krill is a nationally recognized expert in the area of mental health and well-being in the legal profession. 15. National Judicial Counsel, Civility Bench Card.