Of lawyers, law schools, and the keeping of gates

Ian Holloway
“As long as there are lawyers, there is always going to be a need for therapists.”

This was a joke that Washington, D.C.-based psychologist Dr. Tyger Latham recounted in a piece published a few years ago in Psychology Today. Entitled “The Depressed Lawyer,” Latham looked at some of the factors that conspire to make us an unhappy lot.

Among other things, he noted that in the United States, lawyers have a higher incidence of depression than almost any other occupation. We also have a higher suicide rate than other professions (we apparently overtook dentistry for top honours in 1996). And he wrote that something approaching one in five lawyers suffers from alcoholism or substance abuse — twice the rate of other professions, according to another article published in the Brooklyn Eagle.

In 2010, Slaw ran a similarly themed piece by British Columbia lawyer Nicole Garton-Jones on depression in the legal profession. She cited a report by the Lawyers Assistance Program of B.C., which stated that “research shows law to be the occupation most susceptible to clinical depression. Legal professionals are now three times more likely to be diagnosed with depression than the general population.”

It continued that “substance abuse among lawyers is rampant. While 10 per cent of the general adult population is alcohol-dependent, among lawyers practicing from 2-20 years, the number jumps to 18 per cent. For those practicing more than 20 years, the number is 25 per cent. Many of these individuals are both depressed and chemically dependent.”

This is sobering stuff — no pun intended. There are many stats that we can boast about as members of our learned profession, but being off the charts on virtually every indicia of self-destructiveness surely shouldn’t be one of them!

Many reasons have been proffered for our sorry state: the intensely competitive nature of our business, the insistence on detail in what we do, the necessity of focusing on the possibility of negative outcomes, etc. Well-meaning people — psychologists and lawyers alike — frequently offer suggestions about what we can do to avoid falling into the downward spiral of depression or substance abuse.

But one thing that no one seems to focus on is who we admit to the profession in the first place. Maybe that’s a question we should be asking: Are we producing lawyers who have the right personalities for the profession they’re joining?

It’s all well and good to pinpoint things like competition and long hours as culprits. But like it or not, these are to an extent inherent to an adversarial legal system like ours.

So while we, of course, need to ensure we equip lawyers with the skills to cope with the rigours of professional life — it is no source of pride that “sink or swim” seems to have been the preferred approach to professional development in so many sectors of the bar — we also need to think about whether we are setting too many lawyers up for failure from the very beginning.

This begins with law school. The fact is that in Canada today, the de facto gatekeepers to the legal profession are law school admissions committees. Those of us in the academy who would widen the gulf between legal education and preparation for practice won’t like to acknowledge this. And those members of the bar who worry about the profession going to the dogs will be horrified at this. But the statistical truth is that if you are admitted to a Canadian law school today, and if you apply yourself with even modest assiduousness, you will become a licensed lawyer. And it has been this way for 25 years or more.

What this means is that we in the law schools bear a tremendous burden — the burden of determining the shape of the future of the legal profession. Yes, it’s true that some people attend law school without any intention of wanting to practise law. But one has to be willfully blind not to acknowledge that the overwhelming majority — and I’m talking 99percent plus here — of today’s law students want to spend at least a portion of their working lives as lawyers.

Given that, and given that admission to the JD is the real bar admission program in Canada today, we simply have to be mindful of the fact that if we don’t admit people who have the wherewithal to flourish as participants in the legal system, then we are agents, albeit unwitting, in the unhappy state of affairs that Latham and Garton-Jones wrote about.

One of the chief problems is that far too much of the admission process is based on numbers — a blend of the LSAT score and university grade point average.

Now, in the interests of full disclosure, I should note that I’ve been a trustee of the Law School Admission Council, the body that “owns” the LSAT, for a number of years. So I’m hardly going to decry its use. But what I can say is that it is too often used to the exclusion of other things that should also inform admission decisions.

What the LSAT tests, and tests well, is reasoning ability. And the GPA gives us some sense of brightness. So, together, they serve as a proxy for an applicant’s level of grey matter. And it’s hard to gainsay the need for that. Of course, we want our lawyers to be smart. And a lawyer who can’t reason his or her way through a client’s problems . . . well, they aren’t much use to anyone.

But lawyers — good lawyers who are going to be happy in the profession — need other qualities as well. Unfortunately, the current approach to admissions just doesn’t probe for them, at least not in a structured, systematic way.

We don’t test for resilience, grit, or mental toughness, for example. We don’t assess empathy or emotional intelligence. We largely neglect a team ethos or the willingness to delay gratification. Yet we know that the daily working lives of all lawyers, regardless of practice area, involve each of those things.

So is it any wonder that we’re top of the list on self-destructive behaviours? If we’re admitting people who are super-smart, and who have exceptionally active minds, but who are otherwise unsuited for the rigours of the profession, what else should we expect?

The good news is that some law schools recognize this. Law schools in Calgary, Windsor, and, more recently, at Osgoode Hall all employ what is often referred to as a “holistic” approach to admissions.

At these schools, there is no numerical LSAT/GPA formula that determines admissibility. Rather, the LSAT and undergraduate grades are simply factors considered together with other indicia of life experience to determine whether a spot in the class will be offered.

As someone who has worked in both sorts of systems, I can say without equivocation that the holistic approach is superior, even though it can be frustrating to applicants who want to be able to predict the outcome of their applications.

And in fairness, at most law schools, when it comes to so-called “mature” or “access” admissions, holistic-type approaches are taken. Given its unique mission, Lakehead University also seeks to test for a genuine interest in working in the North.

But this begs the question: If “holism” works for certain categories of student, then why couldn’t it work for all? Why can’t we as an academy strive to identify those qualities that tend to indicate success/happiness/survivability — choose your own adjective — in the profession, and then search for ways to measure them?

Wouldn’t that be more likely to produce a generation of happy and fulfilled lawyers? And wouldn’t happy and fulfilled lawyers be better for clients and for the rule of law?

This is not an abstract question. It is one posed in the face of mounting evidence of a crisis of fitness in the legal profession. Depression. Alcoholism. Suicide. Together, they are a tremendous plague on our vocation, and a condemnation of how we select our successors. Don’t we owe it to ourselves — and to them — to do better?

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