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Mindfulness for Lawyers




by:
Law Firm of Thurman W. Arnold III - Palm Springs Office

 
January 19, 2010

Family Lawyers and Legal Assistants As Front Line Crisis Responders
Need Crisis Intervention Skills

T.W. Arnold

Steven Keeva reminds us in Transforming Practices:  Finding Joy and Satisfaction in the Legal Life that "[t]o the extent that you enter it as a calling, the practice of law is about hunger - the hunger for resolution; for healing the lives of individuals,... and communities; for enabling society to function harmoniously and productively; and ultimately, for justice."  

Family law attorneys are litigators within an often radically adversarial setting.  Clients who seek us out find themselves deeply within the throes of wrenching emotional disequilibrium.  Our training has conditioned us largely to believe that achieving the relative justice that client reactivity demands is our calling.  The fact that we are able to command outrageous sums to assist our clients subtly reinforces a blindness to the more positive opportunities that our roles position us for.  We may confuse a transcendent “hunger for resolution” with actualizing or even capitalizing upon our client’s stated aims for outcomes that are not at all transcendent for them.  

Remembering that clients are uniformly in crisis -- to such an extent that they will deposit with us large retainers borrowed on credit cards or from family members in amounts that parties not in divorce might never otherwise consider spending -- is more a reflection of the participant’s distress than the fact of how “good’ a lawyer we are.  This can seduce us into valuing ourselves more in terms of the fees we can demand and receive then those we earn or forego, or in admitting our obligation to guide clients responsibly, and in so doing “enabling society to function harmoniously and productively.”  Each of us must decide for ourselves whether to pander to client reactivity.  Like most symbiotic relationships, ironically, our fate as human beings who happen to be lawyers is dependent upon the experience of those we would serve.  Understanding the effects of crisis, and the consequences of failing to address crisis constructively, offers one path to redemption for lawyers and clients.  It offers a way out of the burn out that the crisis of dealing with people in crisis may cause.  

For many people the experience of divorce is one of the most difficult and traumatic crises that they will ever encounter.  With 50% of first marriages and 65% of second marriages in this country ending in divorce, it is also one of the most common.  Feelings of fear, helplessness, confusion, inadequacy, anxiety, hurt, and exhaustion are normal.  The failure to skillfully manage these feelings and to apply a solutions focused approach to resolving legal disputes can seriously impede a person's wellbeing and present and future functioning within their families, at work, and in social relationships.  The stress of relationship break up can destroy one's health and make one feel almost insane at times.¿¿

Emotional difficulties emerge around all kinds of legal issues involving relationship and family break up.  Mental Health Professionals have long observed that the crisis experience of people in divorce ranks at the top of the subjective Social Readjustment Rating Scales, second only to death of a spouse; indeed, the consequences of divorce may be more debilitating than the threat of a jail term or the death of a close family member.  The experience of clients has profound implications not just for effective lawyering, but to the larger contributions lawyers may offer to people and society in general.   Those contributions are what Keeva speaks to, and why most of us decided to become attorneys once upon a time, in a land that seems far, far away.

Lawyers are front line responders to crisis, but we don't understand this role because nobody taught this to us -- at best, we bump into this reality intuitively but then are at some loss to know what to do with it.  Many attorneys claim they have no interest in dealing with their client's emotions.  Former Chief Justice Warren Burger famously criticized lawyer's lack of technical experience with crisis, which has to some small extent changed law school training formats so that some schools teach therapeutic skills as well as legal skills.  Yet, lawyers remain widely ignorant and disinterested in holistic interventions to help their clients.  And, is this belief true?  If we don’t want to deal with client emotions, family lawyers would be more productive forming corporations or defending insurance companies.

Attorneys and staff have frequent contact with individuals in crisis in family law settings.  By recognizing and defusing intense feelings, points of view, and situations, they can help clients clarify priorities, link to other helping resources, and both lawyers and clients can become more efficient and goal oriented.  "In considering the role of attorneys, scholars and counselors have suggested that it properly includes empathy and guidance, resembling what crisis workers call "psychological first aid."  A three-step process has been designed to help attorneys facilitate disclosure of relevant information in order to formulate a strategy for providing help.

Encouraging the client to express concerns and emotional reactions (this assists the client in describing the situation).

Thorough empathetic listening enables attorneys to help clients acknowledge emotions.
After this, the attorney may begin to develop and verify problem-solving theories based upon what has been learned.

It is essential that attorneys help evaluate alternatives in dealing with the problem, and in order to accomplish this, attorneys need to actively listen and respond to these feelings rather than focusing merely upon the facts.  The attorney's role is to establish rapport (support must be developed and feelings explored before any real progress can be made).  In order to handle cases efficiently, attorneys need to understand the motives, personality structure, and unconscious thoughts in order to 'expose' the unconscious material from what appears to be a confused client.

From a lawyer's point of view, it is both practical and efficient in the long run to deal directly with the emotions which a client brings.  The time saved sticking to the legal objective and objective legal facts is likely to be lost if the client confuses facts with feelings.
 
Counseling approaches that can be utilized by lawyers in helping clients in crisis situations include:
 
Communicating effective concern
Allowing the client to express feelings
Exploring the precipitating event (that brings the client to the lawyer)
Examining past coping efforts to similar problems
Focusing on the immediate problem
Helping the client develop a cognitive understanding of the problem
Seeking practical solutions
Structuring a plan for action
Making appropriate referrals to mental health providers and others
 
Psychological First Aid in the Legal Interview
 
In order to make psychological contact with clients:
Both facts and feelings need to be addressed
If feelings are ignored, it is very likely that the client will present facts poorly.
Clients in distress convey what they feel in

          What they say
          How they act
          What they do

Attorneys should recognize the feelings verbally and then give the client the opportunity to respond.
 
Exploring Dimensions of the Problem
 
Lawyers function best at this stage.  While listening we should consider how the event might have disrupted our client’s life and goals. We should listen to what the event (i.e., divorce, custody, move-away) means to the client.  We should consider destructive propensities on the part of the client in response to the crisis.
 
Examining Possible Solutions
 
The simple fact is that a client who seeks out an attorney is attempting to  cope with the crisis, a powerful first step.  Lawyers need to know about available community resources (clergy, shelters, self-help groups, therapists).  Because any given solution can seem to make sense at one moment or another, the lawyer should evaluate with the client different possible solutions.
 
It is imperative that over-eager lawyers not act too quickly.  We as lawyers need to question our motives.  We should encourage clients to do as much for themselves as they can.  We should question the truth of the thought that our job ends with helping the client realize whatever goal they think will dispel the crisis, or that is it unseemly or unethical for us to act as examples and guides.  Exactly the opposite is true.
 
Legal solutions are likely to have their intended effect only if the client’s needs are clearly understood and the client is motivated to cooperate with the attorney.  This is impossible if we lack the interest in taking responsibility for who we have become and our place within the interlocking web of community.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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