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Murphy Legal Blog

04Apr

Managing the Storm: Making a Case for the Duty of Life Balance

Originally posted in In Transit | Volume 22, Issue 1

When you think about it, accidents aren’t all that different from hurricanes. They both cause damage, result in loss, and create chaos for those they affect. They both leave the world a little different from how it was before, no matter how well things are cleaned up afterward. Both are unpredictable yet absolutely certain to occur.

Unstable Conditions

As any claims professional, risk manager, general counsel, or attorney (plaintiff or defense) will attest, the atmospheric conditions have become pretty…unstable out there. And it’s easy to see why. Every day the news is filled with stories of personal-injury plaintiffs who obtain astronomical verdicts, even with seemingly minor injuries. As a result, plaintiffs’ attorneys are under increasing pressure to produce big results for their clients to stay ahead of the competition. This means that personal-injury claims are at an all-time high, both in number and in dollar amount. However, claims that were once easily resolved are now more frequently—and more speedily—ending up in litigation.

Plus, thanks to aggressive plaintiffs’ tactics like the Reptile Theory, the defense industry is experiencing an entirely new phenomenon wherein the facts of the case may have little (or no) bearing on the ultimate judgment. Depending on the discovery rules and the judge in the particular venue, jurors may be permitted to hear volumes of “evidence” related to a company’s policies, procedures, safety record, regulatory audits, and citations, regardless of whether this data is related to the case at hand.

As a result, the payment of large settlements and judgments has put financial strain on the insurance and transportation industries. These days, in addition to increased premiums and general insurability concerns, our clients are faced with two new challenges:

  • Claims have become more difficult to evaluate accurately, and
  • Legal fees have increased.

And that’s just on the professional front. For claims and risk professionals, each new claim represents a possible “storm”—some are minor showers, others are tropical storms, and a few become hurricanes. But whatever the size, these storms don’t always stay at the office at the end of the day. In fact, storms have a sneaky way of following people home and creating high-pressure systems in other areas of their lives. Storms make them miss baseball games, dance recitals, and date nights. Storms make them lose sleep and adopt unhealthy lifestyle habits to deal with stress. Storms make them feel angry, disconnected, fearful, and untrusting. Storms create chaos professionally, emotionally, physically, and spiritually.

No Port in the Storm

Naturally, when storms occur, these folks look to their trusted attorneys to guide them to safety. Unfortunately, many attorneys can’t reliably navigate these storms because they are dealing with their own chaos. Specifically, defense attorneys are often under constant pressure from their law firms to produce billable hours. Although every firm’s requirement is different, total compensation is often based primarily on hourly production.

Moreover, for decades, law firms have helped create a dangerous industry culture of self-righteous workaholism. This is perhaps due to accidental conflation of two ethical duties: (1) the duty of zealous representation, and (2) the duty to avoid conflict of interest with your client. Although well-intended, what results is something of an ethical Frankenstein that sounds more like: “The zealous duty to zealously place the client’s interests first in all circumstances.”

Translation: “I owe a duty to put my client’s interest before my family, my sleep, my nutrition, my spiritual life, my personal finances, my relationships, or any other personal interest.”

That’s actually not a thing. Nevertheless, many law firms have developed professional cultures that implicitly (or explicitly) require their attorneys to adopt this quasi-duty in the name of “client service.” As a result, the well-known caricature of the exhausted, depleted attorney is practically a badge of honor in this profession. In the long run, however, this lifestyle is unsustainable, ineffective, and completely counterproductive.

Chaos in the Forecast

To start with, most lawyers are natural over-achievers with ultra-competitive personalities. Add to that the constant pressure to produce, a culture of zealous workaholism, and the ceaseless conflict inherent to litigation, and what results is a recipe for chaos in attorneys’ lives—often an unholy cocktail of depression and anxiety.

As the over-achieving bunch we are, lawyers perform well above the national average in terms of mental-health problems and substance abuse. See, e.g., National Task Force on Lawyer Well-Being, The Path to Lawyer Well-Being (2017), available at www.lawyerwellbeing.com. In fact, the legal profession is famously good at creating alcoholics, drug addicts, pornography/sex addicts, spousal abuse, eating disorders, divorces, estrangements, nervous breakdowns, heart attacks, overdoses, and suicides.

So how exactly are stressed, sick, and strung-out attorneys supposed to confidently guide their clients through the storm? In short: They simply can’t.

No matter how brilliant or ethical an attorney may be, if he or she does not purposefully cultivate life balance inside this challenging profession, the client is more likely to remain embroiled in the storm’s chaos throughout the duration of the lawsuit.

Signs of chaos include: untimely reporting (or lack of reporting), lack of clear resolution strategy, delayed responsiveness, frequent reports of dramatic or emotionally charged encounters with opposing attorneys, inability to stay within budget, and of course, unpleasant surprises of any kind.

As chaos increases, so does the likelihood of full-blown malpractice, including missed deadlines, lack of communication, misrepresentations, and financial malfeasance.

It’s time for us to think differently about how we serve our clients.

A Higher Duty

None of this is anything new, of course. Many industries, professions, and religions have already acknowledged that to truly take care of other people, you must care for yourself first. Heck, even the airlines remind us to put on our own oxygen masks before helping others. On top of that, every year, boatloads of new scientific research reveals how stress is making people sick, sad, and unproductive. Unfortunately, lawyers are no exception.

Although today “life balance” receives a great deal of lip service in law firms and bar associations throughout the country, it is not yet a term of art. Interpretations vary widely from firm to firm, including benefits such as gym memberships, fitness classes, child care, counseling, addiction support, flexible schedules, casual dress code, remote working, and firm-wide community-service projects. All great things. However, the predominate mindset has focused more on these items as job perks for recruitment purposes rather than acknowledging any real connection with client results.

Nevertheless, some firms have begun to discover that whole, healthy, happy lawyers are the real secret to high-quality legal work. These thought-leaders are part of an industry-wide paradigm shift advocating for, not just professional excellence, but wellness across all aspects of the person: physical, mental, emotional, and spiritual.

In fact, the American Bar Association highlighted these issues in its recent publication, The Best Lawyer You Can Be: A Guide to Physical, Mental, Emotional, and Spiritual Wellness (Levine 2018), supporting this evolving professional paradigm. In this well-researched collection of essays, the authors highlight many of the wellness challenges facing today’s lawyers, including the stress and negative health effects caused by the hourly billing model, and the resulting negative impact on client results.

So if lawyer wellness has a direct impact on client results, don’t we indeed owe a duty of life balance to our clients?

Navigating Uncharted Waters

For many law firms, however, the concept of life balance might be unfamiliar territory. Where to begin?

First, examine your firm’s culture. What does your firm truly value? Are there any unspoken rules equating commitment with “face time”? Do life-balance perks frequently get pushed aside by a “higher priority”? Do your attorneys regularly work nights and weekends? Are they unofficially discouraged from taking vacations? Are new attorneys expected to “pay their dues” by working long hours? To avoid becoming a “lip service” firm when it comes to life balance, you must get clear on where you are before real change is possible.

Second, examine your firm’s billing system. Do you offer alternative fee arrangements, or are you entrenched in the hourly billing system? Alternative arrangements not only provide greater certainty to clients, they also decrease overall competition among attorneys and lead to greater collaboration, information sharing, problem solving, and case efficiency. Good for the client and good for attorney well-being.

Third, examine your firm’s compensation system. How are attorneys rewarded? If the sole focus is on billable hours and collections, you can bet that many of the lawyers in your firm are secretly struggling with life balance. Consider putting a compensation system in place that rewards results according to the client’s most important criteria, such as speed of resolution and timeliness of reporting.

As we approach a new decade, it’s time for the legal profession to consider the possibility that an industry-wide paradigm shift is upon us. Our clients face greater exposure than ever before and deserve lawyers who are willing to bring the best version of themselves to battle—who are willing to rise.

This is our higher duty.

Download In Transit | Volume 22, Issue 1

Kelsey M. Taylor and Paul W. Murphy are the co-owners of Murphy Legal, a Texas-based commercial trucking defense firm. Murphy Legal handles claims throughout the State of Texas for wrongful death, catastrophic collisions, personal injury, premise liability, and business disputes, and advises clients on regulatory compliance and safety matters. Kelsey is a member of the DRI Trucking Law Committee and vice chair of the Lapsed Membership Subcommittee. She is also a member of the Transportation Lawyers Association (TLA) and actively involved with the Texas Trucking Association (TXTA). Paul is certified in Personal Injury Trial Law by the Texas Board of Legal Specialization and webpage chair of the DRI Trucking Law Committee. In addition to DRI, Paul is a member of the Trucking Industry Defense Association (TIDA), TLA, TXTA, and the American Board of Trial Advocates (ABOTA).

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