The Illicit Relationship of Lawyers and Emotion

When I mentioned the title of this article in an e-mail to another lawyer, she responded, “Hmmm. I missed that one in law school—and unwittingly took the practicum on ‘Just the Facts, Ma’am.”

Well, yes, me too.

The law is about Reason, not Emotion. If we had wanted to learn about emotion, we would have gone to graduate school to study psychology. Instead the goal was to learn to “think like a lawyer”. During my years in law school, I wondered if I had, and if I had learned it well enough. When I did well in law school, I felt as if I had joined a very elite club, and too bad for all the people out there who failed to understand that logic and reason were the right way to go about decision-making. I took great pleasure in the intellectual dance that is legal analysis. More recently, I could still relate to the judge who told me, with considerable satisfaction, that he thinks in outline form.

Yet eventually, after soul-searching and struggle and grieving that ended 16 years in private practice, I closed my law office. I got a master’s degree in counseling psychology. Then, in 2004, ten years after closing my law practice in Florida, I decided to return to the law and to the practice of mediation and collaborative law. Fortunately, I passed the bar exam in Colorado, where I was living. When the day came for my swearing in, I walked into Boettcher Hall, a huge performing arts center in Denver, with several friends. The hall was crowded with happy people who had passed the bar exam, and their friends and families. My friends looked at me, perplexed, as we registered what the brass band on the stage was playing. It sounded remarkably like the Theme from Titanic. What did that mean? Had I just signed on for another disastrous voyage with the law? It was not particularly encouraging.

However, it did prompt a wonderful image. I began thinking about the deadly iceberg encountered by the Titanic—icebergs, of course, have the bulk of their structure under the water, 90%, I am told, invisible to the eye. The part of the iceberg under water is dark, unknown, secret, hidden. This seemed an apt metaphor for the relationship of the law to reason and emotion. The lawyer focuses on what is visible above the water line: the conscious, logical, rational, factual. Under the surface are our emotions, hidden, powerful, mysterious structures we ignore at our peril.

Lawyer Unhappiness

The statistics about unhappiness in the practice of law are not improving. Professor Susan Daicoff describes a “tripartite crisis” facing the legal profession: 1) low levels of job satisfaction and mental well-being among lawyers. Lawyers experience depression at least twice as frequently as it occurs in the general population (almost 18% of lawyers are depressed.) Lawyers also suffer higher than normal levels of anxiety, paranoia, obsessive-compulsiveness, insecurity, hostility, stress, anger and marital dissatisfaction. And 18% of lawyers, again about twice the general population, are alcoholics; 2) a lack of professionalism on the part of both lawyers and judges, as demonstrated by frequent complaints of incivility and discourtesy, inappropriately aggressive litigation, and behavior verging on the unethical; and 3) low public opinion of lawyers and the legal profession.1

Source of Suffering: No Feeling

I believe that these problems arise because the greatest strength of the legal system, its idealization of clear thinking, becomes a tragic flaw in legal practitioners. The Law, as an institution, as an educational system, and as a practice, values reason, logic, objectivity, and predictability above all other values. Fairness and justice in our legal system can only be attained by the careful application, in an adversarial process, of reason and objectivity. As one judge said to me, “Courts don’t have feelings.”

The Law rightly is concerned that decisions should have logical and rational bases, that to insure predictability and conformity of outcomes, decision-makers should be free of personal feelings. Similarly, a lawyer should be able to walk around a problem, to see not only the two obvious sides but the angles at which any interested party might approach the problem. Lawyers fear that emotion will cloud our objectivity or hook us into a position from which we can no longer grasp the big picture or move fluidly from the intellectual understanding of one position to another.

But we convince ourselves, as lawyers, to settle for using only part of our brains and for experiencing only part of our lives. Values that may be appropriate for an institution are not necessarily the values that work best for human beings. Despite contemporary references to the “legal industry”, with connotations of cogs in a wheel, or stages in an assembly line, or lawyers as mere technicians, lawyers are human beings. We are not suffering, as a profession, from our inability to think clearly or analyze properly, we are suffering because we have been trained to ignore our emotional dimension. We might like to feel happy, but we have been trained not to feel anything.

Brain Research

The research of Dr. Paul MacLean, an evolutionary neuroanatomist at the NIH, has demonstrated that humans have a “triune” or three-in-one brain. These three distinct sub-brains have cellular and functional differences, because they emerged from different ages in the evolutionary history of human beings. These brains communicate with each other, but sometimes they have very different interests, and sometimes their communication is imperfect.2

The brain stem or reptilian brain (sometimes called the “lizard brain”), resting above the spinal cord, manages our automatic functions like breath, heartbeat, the gag reflex--the vital control centers of the body. The startle reflex is in the reptilian brain. When we say a person is “brain-dead,” it is the reptilian brain that is still functioning, keeping the breath flowing, the heart beating, salt and water balanced in the blood. The reptilian brain, however, lacks the capacity for anything resembling feelings. It allows for basic aggression, territorial defense, and mating behaviors, but reptiles have no emotional life. Many reptiles cannibalize their young, which is why baby reptiles are usually silent.

The part of the brain that we usually identify with is the neocortex, the rational brain. This part of the brain is the thinker, speaker, writer, planner, strategist. The neocortex gives us the capability for abstract thought, for imagining and planning a future. It is the seat of will, the determination to follow a particular course of action. Many people, not only lawyers, consider these the highest attributes of human nature.

The midbrain or limbic system (also called the mammalian brain and the emotional brain) is the part of the brain that forms attachment to others. Mammals nurture and protect their young, they sing or vocalize to their young, they love play, and they can dream. All mammals have limbic systems. That is one of the reasons that we feel so attached to our dogs and cats. They may have small neocortical brains in relation to ours, but they have limbic systems that allow them to read and respond to certain emotional states. They know when we have had a bad day, when we are angry or upset. Some dogs are so limbically attuned that they can detect the minute changes in the brains of people around them that are the precursors to seizures.

In the human brain, the limbic system curves above the brainstem and below the bulk of the neocortex. I was taught that the limbic system is responsible for the 6 F’s: fight, flight, freeze, food, feelings and . . . sex.

By the way, fight or flight responses, according to current research, tend to be different in the male and female brains. Fight or flight appears to be a primarily male response to threat. Females, perhaps because of the presence of more oxytocin, the hormone relating to nurturance, are more inclined to a response called “tend and befriend” or “mend and attend.” Females thus gather in groups for mutual protection and support.

The healthy limbic system, in an infant, learns love and joy, anger, fear, excitement and disappointment from the infant’s caregivers. We know that the neocortex learns by exposure to stimulating experiences, so we encourage parents to talk and read to their children, to play with them, to expose them to other children and to educational toys. The limbic system learns in an even more subtle way, by repeated exposure to emotions in a process called limbic resonance, an exquisite attunement to the inner states of other mammals. The limbic brain not only experiences the emotional states around it but adjusts to them, in effect, learning to match the limbic brains of others.

In experiments with rodents, those animals having their limbic systems excised treated their brothers and sisters like furniture, climbing over them, ignoring them, apparently not recognizing their own species. As humans have evolved, the limbic system has become the seat of conscience and of empathy, yet there are people, not unlike the experimental mice, who lack properly functioning limbic systems. Often they are labeled psychopaths or sociopaths; they have no experience of the humanity of another, nor do they have the sensitive mediator in the human brain that adds discernment and judgment to intellectual power and physical ability.

How to Deal with Emotions

Given the existing legal culture, even if we believe emotions have value, we might wonder where they fit and how to handle them. The nature of the limbic brain and its interaction with the neocortex and brainstem reveal the following facts about feelings:

* Emotions are not durable but evanescent, like musical notes that dissolve into silence. Our unconscious thinking about an event that triggered an emotion creates the impression of a lengthy emotion.
* Because the limbic brain cannot distinguish between incoming sensory stimuli and imaginary events, emotionally charged events we think about or imagine have the same physiologic effect as those we actually experience.
* What we resist, persists. When an emotion is acknowledged consciously, it can move through us without being recycled endlessly. If we experience intense emotion that we deny or suppress, we eventually may have to deal with somatic consequences.
* When we move physically, emotion can flow more readily through us.
* Emotions are cumulative; that is, if we have a couple of events that trigger frustration, and then we experience a small annoyance, our frustration about the third event is likely to be excessive because the neurological pathways for that feeling are already primed.
* When we suppress one emotion, we suppress other emotions on that spectrum. Thus our decision not to feel sad inhibits our capacity for joy.
* Emotion comes from our internal states, including our thoughts. It also comes from the internal states of those with whom we come in contact, since our brains are built for emotional resonance.
* Emotion arises, as well, from our own facial expressions, which can amplify and regulate what we are feeling. (If you want to feel empathy for someone, consciously mimic his expression.)3

Lawyer Metaphors: All Reptilian

Not long ago, I created an informal survey and asked some lawyer friends what metaphors they most often heard used for lawyers. “Snake,” “shark,” and “bottom-feeder” were most frequently mentioned. I then checked Amazon.com for books about lawyers, finding 9330 titles. When I narrowed my search to lawyers, nonfiction, the first title that appeared was Trapped in the lawyer’s den with bloodsuckers by Thelma N. McCoy. These metaphors were particularly interesting to me because the creatures mentioned lack limbic systems; sharks, snakes, bottom-feeders, and bloodsuckers do not have emotional brains. If a lawyer is perceived in that way, we are talking about someone with instant reflexes and a narrowly focused instinct, without feelings or conscience, with only a reptilian brain. If that is the public perception of lawyers, no wonder we are unpopular.

Sadly, the process of legal education and the practice of law, both explicitly and implicitly, foster this perception of lawyers. While bar associations initiate public relations campaigns to improve the public perception of lawyers, the legal system unintentionally conspires to perpetuate the behaviors that stamp a different perception indelibly in the minds of lay people. In ignoring emotional awareness, the system continues to attempt to persuade the public that we are good people while denying them the experience of connection with real human beings. Our clients may believe they only need our intellectual dexterity and our legal knowledge. But they actually want and deserve more: to have the feeling that we are really present to them, we are connecting with them, we are interested, we are not judging them, and that they are more than their cases.

The Law seems to offer an either-or choice: You can be objective (and be a good lawyer) or you can be emotional. I say we have to be both. We must acknowledge the value of emotion; we need to learn to recognize our own feelings and those of others. We can integrate our thoughts and feelings, for greater personal and professional satisfaction and for the kind of connection with other people that acknowledges our mutual humanity.

11 Professor Daicoff’s excellent book, Lawyer, Know Thyself (2004), explores personality characteristics of lawyers and their relationship to the tripartite crisis she documents.

2 A wealth of material on the brain, especially the limbic system, can be found in A General Theory of Love (2000) by Thomas Lewis, M.D., and others. Much of the factual information about the brain which I have discussed in this article relies on the work of Dr. Lewis, including his book and a lecture which he gave at Understanding Connection, a conference held at the California Institute of Integral Studies on October 22, 2005.

3 In a New Yorker article called “The Naked Face,” (August 5, 2002), Malcolm Gladwell writes about a San Francisco psychologist, Paul Ekman, who studied facial expression and discovered that expressions mean the same thing everywhere in the world, that even when one assumes a social mask, a fleeting “micro-expression” can reveal his true feelings, and that just making expressions of anger and distress can make people feel terrible.

1