Monthly Archives: June 2012

Let the River Run

I’ve felt like my views on transforming the legal profession and my sharing them on this blog is just a little trickling stream. But now this little stream is turning into a river as I connect with people all over the globe who think the same way.  Several nights in the last week I have had the privilege of talking to amazing women (via Skype) from America, Australia, Bosnia – who are all working hard to transform the way lawyers practice, law firms operate and law schools teach law.  Each woman has connected me with other wonderful lawyers bringing about change and so it flows.

Last week I wondered aloud if I could find a woman lawyer in Cape Town who had done the Women Within training to help me launch the Integrative Law Movement in South Africa. Well, I got an email within 24 hours from the “right woman”. It was that easy. And I knew she was the “right woman” to help me when she emailed me this quote:

“Until one is committed, there is hesitancy, the chance to draw back– Concerning all acts of initiative (and creation), there is one elementary truth that ignorance of which kills countless ideas and splendid plans: that the moment one definitely commits oneself, then Providence moves too. All sorts of things occur to help one that would never otherwise have occurred. A whole stream of events issues from the decision, raising in one’s favor all manner of unforeseen incidents and meetings and material assistance, which no man could have dreamed would have come his way. Whatever you can do, or dream you can do, begin it. Boldness has genius, power, and magic in it. Begin it now.” (attributed to Goethe – but its attribution is apparently complex)

Of course I had this quotation on my fridge already.

On Saturday night I spoke to a couple at a party about my ideas and they said I should speak to their woman lawyer friend, who it turns out I had gone to law school with. I checked my phone just before I drove home at midnight and lo and behold, this long-lost law school friend had just asked me to connect with her on Linked-in.

I know it’s very New-Agey for lawyers…but I do believe in Karma and destiny.  I cannot doubt right now that the Universe is helping me do the work I am meant to be doing.

I wrote an article last week on Integrative Law and quoted Pauline Tesler at the top:

“What kind of person the lawyer is matters equally as much as the power of the lawyer’s intellect”.

To be completely honest, I was in a bit of a hurry so I didn’t actually look up Pauline’s work before I used the quote.  Today I stumbled onto her website, recognised her name and read a few posts. Wow. It was like reading my thoughts, only expressed better by someone else. Pauline teaches Practical Neuro-Literacy programs to lawyers and other professionals and while I’m not even clear what this means…I needed to know about her work because:

I met a neuro-scientist on Saturday who consults to corporates on various ways of harnessing brain function that I didn’t have time to understand. I told him I want to find out about the application of his work to lawyers.  Crash, bam, boom, whoosh, the pieces fall into place. Watch this space for neuro-science and law!

I was particularly struck by some paragraphs on Pauline Tesler’s blog (the Integral Institute) which I shall paste below.  I cannot wait to learn more about her work and bring it to South Africa. The bits I’ve chosen to quote are not about her neuro work but about the essential humanity of lawyers. Beautifully written.

And yet I,  a lawyer, saw immediately how these practices and insights could help members of my own profession reclaim meaning and integration in our daily work with clients–serving them better, and at the same time taking better care of ourselves as human beings.  It seems to me that the profound organizing purpose that most of us in the legal profession discovered in our early years and that we carry forth in our work arises out of deeply held values of fairness and peace.  Yet as we learn to be lawyers, we are socialized to move away from important human qualities and behaviors that surely are central in helping our clients find fair resolution and peace.

To become lawyers, we have struggled to hone necessary skills and to become excellent at what we do.  Although most of us brought to the table a facility with language, argumentation and logic, nonetheless it came easily to none of us to “think like a lawyer,” the first hard lesson of a legal education.  Many of us have paid a steep price as we shaped ourselves to match the professional persona of a lawyer, pruning away what doesn’t match the official job description  (empathy is often one of the early casualties) and squeezing into the box inconvenient  human qualities (our own emotions, our own most accessible ways of apprehending reality) unrelated to legalistic deductive reasoning, so as to keep them unseen and under control.

Do we have to leave behind essential humanity to practice law?  I don’t think so.  But that’s what happens to us in law school and in our on the job experiences in court.  No wonder lawyers register so high in all the indicia of a profession in trouble:  drug abuse, alcoholism, major depression, suicide.  We tend not to want our children to follow in our footsteps, and perhaps this problem–the loss of intrinsic human meaning in our daily work–is the reason.

Long may this river run.

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Girls’ Guide to Law School

I just stumbled across Alison Monahan’s blog. In an interview about her blog and life she is asked whether going to law school was worth it. I think her reply is thought-provoking and worth sharing with women lawyers.

 I don’t think you can say, in the abstract, that law school is “worth it” or “not worth it.” Sure, you could calculate the cost to attend and your expected level of earnings over a given career path, and say you’ll be financially better off (or not) if you go to law school and everything goes according to plan. But that calculation leaves out a lot – Will you like your job? Will your work be meaningful? Will you be able to eat dinner with your kids (or even have time to have them)? Will this path make you happy?

These are big questions, and most of them can only be answered in retrospect. The mission for the prospective law student is to get as close to an answer in the here-and-now as they realistically can.

The way to do that, I think, is to find out as much as possible about the profession, and to talk to lots of practicing (and former) lawyers. When people are gathering information, it’s critical to be aware of natural heuristic biases (paying more attention to information that confirms your preexisting opinion, for example, and less to information that contradicts it).

 The hardest part of this analysis is to find a way to really listen to what people are telling you. There’s a lot of wishful thinking out there, and law schools, to be frank, sometimes prey on this. The reality is that law’s a difficult profession, and it’s not a path to guaranteed riches. For the right person, it’s a good option. But far too many prospective students either fail to do their research, or put aside the feeling that maybe this isn’t a good idea, and end up bitter and disgruntled.

I’m very intrigued by the effect the legal profession has on women. So I really like the tagline of Alison’s blog – underneath the Girls’ Guide to Law School it says “Get in, Get Through, Stay You”. It touches a nerve for me  personally, because after 2 years in a law firm I felt like I had multiple personality disorder.  I’d put on a suit and sing the Ally McBeal theme song and know by the time I arrived at work I needed to be a different person. My research is showing me that hundreds and thousands of women lawyers out there have sacrificed a large part of who they are in order to survive as a lawyer. Law firms still, by and large, tend to be a very male space. It’s not about statistics, in fact it doesn’t always make a huge difference if there are are many women in the firm. The issue is that in the legal environment, everyone is expected to think and act in a masculine rather than a feminine way.

Mary Ovenstone, a leadership and executive coach, is currently researching ‘the neurological differences between the male and female brain’ for her thesis. She says it was always taught that there was only one language centre in the brain. In fact, there are six found on both sides of the brain.  The male brain uses one language centre found on the left hemisphere, the female brain uses all six.  I’m hoping I can convince Mary to share some of her work in workshops with lawyers.

Here are some more differences I’ve pulled off the ‘net:

  • The male brain is highly specialized, using specific parts of one hemisphere or the other to accomplish specific tasks. The female brain is more diffused and utilizes significant portions of both hemispheres for a variety of tasks.
  • Men are able to focus on narrow issues and block out unrelated information and distractions. Women naturally see everyday things from a broader, “big-picture” vantage point.
  • Men can narrowly focus their brains on specific tasks or activities for long periods of time without tiring. Women are better equipped to divide their attention among multiple activities or tasks.
  • Men are able to separate information, stimulus, emotions, relationships, etc. into separate compartments in their brains, while women tend to link everything together.
  • Men see individual issues with parts of their brain, while women look at the holistic or multiple issues with their whole brain (both hemispheres).
  • Men have as much as 20 times more testosterone in their systems than do women. This makes men typically more aggressive, dominant and more narrowly focused.
  • In men, the dominant perceptual sense is vision, which is typically not the case with women. All of a woman’s senses are, in some respects, more finely tuned than those of a man.

If you think about this list for a moment- can you imagine what it does to a person if they are constantly trying to behave in a way that is not their norm? Being subtly, and not so subtly, pulled towards viewing matters as others would have them see them? Denying their own feelings because they might be viewed as “inappropriate” or “unprofessional” or “illogical”.

New studies show that companies which have equal or greater numbers of women on their boards do better! That’s right, the bottom line is positively affected by a good male/female mix. Why? Because if we harness our different ways of seeing the world we can become more than the sum of our parts. We bring different styles and methods and solutions and ways of negotiating. Women and men working as teams are powerful. If the intuitive and connected half of the room are spending all their energy on trying to sound as decisive and focused as the the other (male) half, we’re not harnessing anything.

Girls, when you think about entering the legal profession, there’s a lot more to consider than if you’ll be able to read your kids stories at night.  How about being prepared to give up your way of viewing the world?

I’m currently designing a 1 day workshop for women lawyers to address some of these things, incorporating an Individual Values Assessment by the Barrett Values Centre.  Please ask if you’d like to know more.

The Times They are a Changin’

I’ve just read  a great article by Jordan Furlong in which he discusses the changing landscape of employment as a lawyer. Here is an extract:

“My message to new lawyers, really, is this: don’t gear all your career efforts towards “getting a job,” or at least, not one that you’ll hold for more than a few years. The legal economy’s traditional employment infrastructure is starting to crumble, and if you count on spending your career inside it, you could be caught in the collapse. There are plenty of markets and industries that will continue to make lots of traditional full-time “jobs” available, but I doubt very much that the law will be one of them. If you wind up in a steady law job, that’s obviously great; but you should think of that outcome as the exception more than the rule.

So instead, plan for independence. More and more legal employment will be small and entrepreneurial in nature, rewarding the self-starter who builds a reputation for value, effectiveness and foresight. Look at the legal market around you and ask: What’s missing? What client needs aren’t being met? What needs have clients not even thought of yet? What innovative new industries will flourish in the next ten years, and in what ways will they require assistance that lawyer training and legal skills can deliver? What demographic trends will take full effect in the 2010s, and what are their law-related implications? What technological advances in the legal market, no matter how sophisticated, will still require complementary high-end lawyer services?”

Furlong goes on to provide an insightful analysis of 7 characteristics that future lawyer roles might have – as opposed to characteristics of the conventional “lawyer job in a law firm” role.

As one commenter points out, this is not just good advice for young lawyers but also for “old”  lawyers who need to rethink their own career paths in a shifting profession.  

New lawyer roles might look like this:

  1. They envision multiple clients, not just one: These aren’t single-channel “jobs” in the traditional sense; they’re more like engagements or opportunities that are customized multiple times to an ever-changing roster of clients.
  2. They require the application of high-end skills or talents: Lawyers need to deploy judgment, counsel, business analysis or strategic insight to fill these roles — not process or content, which   will be systematized and automated by non-lawyers.
  3. They involve a high degree of customization. Mass-produced legal products and services will be the province of high-volume, low-cost providers. High-value services will be uniquely tailored, like designer drugs based on a patient’s DNA.
  4. They meet a need unfilled by a traditional provider. Law firms, law schools, legal publishers, CLE providers, governing bodies, and other industry mainstays could provide supply or drum up demand for these roles, but haven’t.
  5. They focus far more on preventing problems than on solving them. Richard Susskind, again, reminds us that clients want a fence at the top of a cliff, not an ambulance at the bottom. These are all fence-building positions.
  6. They presume a high degree of connectedness. The future of law is collaborative, and successful future law careers will hinge in no small part on the size, quality and effectiveness of lawyers’ networks.
  7. They deliver specific, identifiable, and actionable value to the buyer. Much of what lawyers now provide is procedural and transactional: hoops that must be jumped through. These roles are rich in direct, verifiable value to clients.

 I highly recommend reading the article in full here:

And of course, if you’re trying to understand the changing legal landscape, familiarize yourself with the Integrative Law Movement.  It will take your legal practice to a higher level of consciousness and enable you to open doors that your more conventional legal colleagues cannot.

Law School Education

I feel compelled to share this really great article on law school education from the New York Times.

It’s funny too.

It doesn’t give all the solutions but David Segal, the journalist, is quite good at pointing out some of the problems.  And it covers a range of issues concerning legal education’s failure to prepare students for actually practising law.

Below are 3 extracts from the article, which you can read in its entirety here:

“Law schools have long emphasized the theoretical over the useful, with classes that are often overstuffed with antiquated distinctions, like the variety of property law in post-feudal England. Professors are rewarded for chin-stroking scholarship, like law review articles with titles like “A Future Foretold: Neo-Aristotelian Praise of Postmodern Legal Theory.”

“We should be teaching what is really going on in the legal system,” says Edward L. Rubin, a professor and former dean at the Vanderbilt Law School, “not what was going on in the 1870s, when much of the legal curriculum was put in place.”

“Another problem…there are few incentives for law professors to excel at teaching. It might earn them the admiration of students, but it won’t win them any professional goodies, like tenure, a higher salary, prestige or competing offers from better schools. For those, a professor must publish law review articles, the ticket to punch for any upwardly mobile scholar.”

It is my observation that while graduate schools are beginning to wisen up and focus on how people will be doing things as much as what they will be doing, law schools globally seem behind the curve.  This means that business school curricula now contain extensive courses the preparation of great business leaders who are prepared for the psychological and ethical challenges. Yet law schools still focus 99% of their attention on learning law – content as opposed to process.  There is growing dissatisfaction as lawyers globally realise they have not been adequately prepared for the challenges of the legal profession.  This is leading to a rise of services such as Lawyer Coach, which arise to meet the needs of lawyers actively seeking training in the skills they did not receive while studying. Granted, some of these are skills only suitable for lawyers with developed careers. However there appears to be a growing number of lawyers who agree that we MUST start including leadership work, including further courses on ethics, into standard law school curricula.

“Formal education in the law does not prepare lawyers for the moral challenges of the profession”

There is so much that South African Universities can learn from developments in the US and UK where law schools have been around so much longer. Yes, South Africa is different in some respects and it’s a unique legal system in a country that is partly third world and we shouldn’t just follow Eurocentric models yaddah yaddah…but it also makes no sense to re-invent the wheel. The SA legal system is based on a mixture of Roman-Dutch and English law and our legal education system is also very similar to that in Europe.  Therefore, if these countries are discovering that their legal education systems are failing to prepare lawyers for the challenges of lawyering in the 21st C, we need to sit up and take notice.

While many of our university law departments do have legal aid clinics which allow students practical experience at lawyering, there is still much work to be done on creating more innovative curricula.

As Magda Slabbert, Professor of Jurisprudence for Unisa points out in her paper on the Requirement of Being a Fit and Proper Person:

“Formal education in the law does not prepare lawyers for the moral challenges of the profession. The ultimate aim of legal training is to enable the student to become a successful attorney or advocate. Knowledge is important in order for the lawyer to be able to make a convincing case for either side in a dispute. –

BUT… 

“What this sort of learned cleverness does not require is either a developed capacity to judge what is right or a disposition to seek it”

(from Eshete A “Does lawyer’s character matter?”)

So what’s happening in the US that we can learn from?  Below are a few points from an article you can read in its entirety here.

  • Legal educators from more than 30 law schools across the country have joined together to make experiential legal education the norm and not just an afterthought.
  • Northeastern University School of Law offers an interesting example because, almost 50 years ago, it pioneered a cooperative model of legal education that integrates theory and practice by requiring students to fulfill all the traditional classroom work while also spending a year immersed full-time in practice settings as diverse as law firms; judges’ chambers; and prosecutor, public defender and legal aid offices
  • The group was formed to ensure that law graduates are ready to join the legal profession with a full complement of skills and ethical and social values necessary to serve clients and the public interest, now and in the future.
  • The symposium will bring together lawyers, judges, students, legal educators and others to begin to forge a new model for legal education and the profession.
  • There is growing recognition across the legal profession and in legal education that business as usual is not acceptable and the time is now to provide more and better educational opportunities for law students, who are the profession’s greatest assets. The alliance is adopting innovative curricula that combine theory and practice to help students puzzle through the challenges and ensure that the profession remains vibrant, dynamic and relevant. This group of legal educators is committed to educating students to hit the ground running, with experience helping clients, collaborating with colleagues, resolving disputes, facing adversaries, drafting documents and interacting with judges, so that these lawyers are ready to solve legal challenges right away.

Therapeutic Jurisprudence

I was intrigued when I came across the term “therapeutic jurisprudence”, in light of jurisprudence having been my favourite subject at law school and the amount of time I’ve spent in therapy. Jokes aside, this is a very interesting area of conscious law, or integrative law. I really hope to find more information on South African lawyers and organisations, perhaps NGO’s, who are working in this area.

The following are extracts from Wikipedia: (I put the bit I like in bold!)

Therapeutic jurisprudence (TJ) is a term first used by Professor David Wexler, University of Arizona Rogers College of Law and University of Puerto Rico School of Law, in a paper delivered to the National Institute of Mental Health in 1987. Along with Professor Bruce Winick, University of Miami School of Law, who originated the concept with Wexler, the professors suggested the need for a new perspective, TJ, to study the extent to which substantive rules, legal procedures, and the role of legal actors (lawyers and judgesprimarily) produce therapeutic or antitherapeutic consequences for individuals involved in the legal process.

Therapeutic Jurisprudence also has been applied in an effort to reframe the role of the lawyer. It envisions lawyers practicing with an ethic of care and heightened interpersonal skills, who value the psychological well being of their clients as well as their legal rights and interests, and to actively seek to prevent legal problems through creative drafting and problem-solving approaches.

The impact of Therapeutic Jurisprudence on lawyering was documented in Stolle, Wexler, and Winick’s 2000 book, Practicing Therapeutic Jurisprudence: Law as a Helping Profession. TJ also has begun to transform legal education, in particular clinical legal education. These developments were documented in a 2005 symposium issue of the St. Thomas University Law Review, “Therapeutic Jurisprudence and Clinical Legal Education and Skills Training.”

In 2008, Wexler published an edited volume dedicated to therapeutic jurisprudence and the criminal defense attorney. The book is entitled Rehabilitating Lawyers:Principles of Therapeutic Jurisprudence for Criminal Law Practice (Carolina Academic Press 2008)

I hope, by writing about movements like this,  I may be able to give exposure to the positive work being done around the world to make legal systems and legal professionals more conscious.

Oath, What Oath?

I came across the MBA Oath a few weeks ago and immediately started wondering about a similar oath for attorneys.  I know in South Africa attorneys swear an Oath at the admission ceremony in court – something about upholding the Constitution and being a fit and proper person.  I’m struggling to recall the words so I am trying to get hold of that Oath.

My first call yesterday was to the Cape Law Society. They couldn’t help. I am fascinated by this. Nevermind that that they can’t recite it, that it is not written on their walls, but they don’t have a copy of it that they can make available to me. It’s as if the ethical underpinnings of the entire profession…are, um, MIA.

I decided to take it further so I emailed…well, let’s just say, I emailed someone VERY SENIOR in terms of attorneys in SA. He responded “Great Idea!” and kindly passed on my query – and today I got an email from the head of another province’s law society.  Who says I should contact the High Court. So that’s 2 provincial law societies unable to provide a copy of the Oath that every one of the 57 000 attorneys alive in this country is supposed to be upholding.  

So I called the High Court a  few minutes ago.  The various registrars are unable to help me, I should apparently wait for the Deputy Judge President’s secretary (who is involved in the swearing in of attorneys from time to time, so I gather) to answer the phone. This will probably be on Monday.

And we wonder why the legal profession is perceived as lacking in ethics.

While I endeavour to get hold of the current Attorney’s oath, here is a little background on the MBA Oath:  It was started by Harvard MBA students in 2009, largely as a response to the global financial crisis. This crisis “prompted many in the public and in the press to question whether business schools are successfully executing their missions of educating leaders for society. How did we get into this crisis? Why didn’t business school professors sound the alarms in advance of the meltdown? Why were so many MBAs involved in the decisions leading up to the crisis? Are MBAs so concerned with increasing their personal wealth that they ignore ethics and their responsibilities to society?”

I believe as lawyers we should be asking exactly the same questions of ourselves.

  • How did we get into a situation where lawyers are by and large regarded as sharks?
  • Why are law school professors not sounding the alarm?
  • Why are so many lawyers involved in the deals leading to global financial crises?
  • Are lawyers so concerned with increasing their personal wealth that they ignore ethics and their responsibilities to society?

And I think the time might be ripe for an Attorney’s Oath – one that goes far deeper than swearing to uphold the Constitution.  This is the MBA Oath which I think is a wonderful basis for the development of one for attorneys.

THE MBA OATH

As a business leader I recognize my role in society.

•  My purpose is to lead people and manage resources to create value that no single individual can create alone.

•  My decisions affect the well-being of individuals inside and outside my enterprise, today and tomorrow.

Therefore, I promise that:

•  I will manage my enterprise with loyalty and care, and will not advance my personal interests at the expense of my enterprise or society.

•  I will understand and uphold, in letter and spirit, the laws and contracts governing my conduct and that of my enterprise.

•  I will refrain from corruption, unfair competition, or business practices harmful to society.

•  I will protect the human rights and dignity of all people affected by my enterprise, and I will oppose discrimination and exploitation.

•  I will protect the right of future generations to advance their standard of living and enjoy a healthy planet.

•  I will report the performance and risks of my enterprise accurately and honestly.

•  I will invest in developing myself and others, helping the management profession continue to advance and create sustainable and inclusive prosperity.

In exercising my professional duties according to these principles, I recognize that my behavior must set an example of integrity, eliciting trust and esteem from those I serve. I will remain accountable to my peers and to society for my actions and for upholding these standards.

This oath I make freely, and upon my honor*. 

I believe in having a BHAG. (Big Hairy Audacious Goal). Wonder if I can get  5000 attorneys to sign an Attorneys Oath (that I better get working on) by the end of 2012?

* US Spelling – they leave out letters 😉