Wellbeing & Resilience: Rejecting the myth of the gladiator litigator

Rejecting the myth of the gladiator litigator

REBECCA SANDFORD, WELLBEING & RESILIENCE COMMITTEE

“I begin with a question: Why is it that we never talk about mental health and litigation in the same conversation? I think it’s partly because mental health, like physical health, is common to everyone. We don’t think of mental health as something we all experience. Instead, we think mental health means mental illness or poor mental health, and that both undermine one’s ability to be a litigator. Mental illness is stigmatized by our society and by our profession. Stereotypical thinking about mental health in the legal profession associates poor mental health or illness with an inability to control emotions or thoughts, a lack of judgment, the inability to work hard or withstand pressure, and unreliability. By contrast, the stereotypical barrister is held in high esteem: a fearless gladiator, wielding a razor-sharp intellectual broadsword. Always in control of their emotions. Erudite and articulate. Powering through long hours of work with pride and not breaking a sweat under pressure. Sometimes wounded, but never defeated. Suffering in silence and quietly bandaging their own wounds, ready to fight another day. And able to “play hard” as well as “work hard”. The grip of these two myths on our profession – that mental health is something that affects others, not us, and the gladiator litigator myth – means that we rarely discuss mental health in the same conversation as litigation because we believe one precludes the other. For too long, members of our profession have been beholden to the idea that our experiences in navigating mental health challenges, whatever they may be, are incongruous with a successful career in litigation. We have internalized the myth that only the invincible are successful. We need to call out these myths – not only because they are false, but also because they send the wrong message about who “belongs” in litigation. And because they cause terrible suffering for those who believe that they cannot or do not measure up to the gladiator ideal.”

So says the Chief Justice of Ontario, Justice Strathy, in his recent paper “The Litigator and Mental Health”.1 Though his Honour discusses his experience of the Canadian legal system over the last few years, the points made are equally reflective of Australian experiences, including within the South Australian legal profession.2 His Honour is certainly also correct to say that “the lesson from these numbers is that the mental health and well-being of the legal professions is a serious institutional issue”, that “mental health is a societal issue and a professional issue”, and that “talking about mental health must be accompanied by action to improve workplace functioning and the well-being of legal professionals”.

Chief Justice Strathy recommends a “less obvious” strategy to help litigators navigate the “inherently stressful activity” that is modern legal practice - namely, to “reject the myth of the gladiator litigator”. His Honour suggests this means we should “acknowledge the role experience plays over innate talent and avoid inapt comparisons between the inexperienced litigator and the experienced”, but another facet of this myth is the image of a litigator as a sovereign, heroic gladiator who operates entirely independently. This fable ignores the reality of what it takes behind the scenes to get to that moment of glory in the ring (or the Courtroom).

Just like gladiators couldn’t succeed without preparation and help from teams of experts each skilled in their respective crafts (trainers, doctors, armourers and the like), even a highly accomplished barrister’s work isn’t done in isolation, and we cannot undertake our roles effectively without proper support. This means legal workplaces must do more than deliver cupcakes once a year, whilst placing the ongoing burden of responsibility for mental health and wellbeing care on the individual at the same time as promoting work practices which fail to accommodate and support those needs. It means embedding in all legal workplaces a professional culture which prioritises effective teamwork, where diversity is not just encouraged but required, wellbeing is a central focus in decision making, and each team member is fully supported to undertake their work to the best of their ability. That in turn requires reassessing what we value and reward, and how we operate within the structures and organisations that make up our legal system.

Chief Justice Strathy advises senior practitioners to “take a hard look at their workplace cultures, their leadership styles, and how they treat their partners and associates farther down the food chain. They need to ask themselves whether they are protecting and preserving their most important assets. And they need to develop strategies to do so and put senior people in charge of making those strategies work.”

Some strategies to consider, specifically in a litigation context, might include allowing for recovery time and counselling support to manage vicarious trauma impacts during and after difficult matters; actively discouraging intimidation tactics and bullying in litigation3 and rewarding empathetic and collaborative approaches instead; recognising that work may need to be refused, shared, re-assigned or differently resourced to improve workplace

functioning and wellbeing, and acting to do so when needed; and adopting realistic timeframes and deadlines which do not require litigators to regularly give up sleep, connection or healthy eating to meet their obligations.

A structural approach to mental health challenges and needs isn’t just good for individual lawyers within the system, but consistently leads to better client outcomes and more efficient use of public resources. Mental health and wellbeing remains an individual journey,4 with key steps we must take independently, including to eat well, rest, and recover from work stresses in the company of our loved ones. However, acknowledging that victory - a successful legal career - comes from developing experience and resilience, rather than some mythic inherent capacity for gladiatorial invincibility, will help ensure those operating in these high stakes, high pressure environments do so both effectively and sustainably. In that context, the importance of legal workplaces providing meaningful, appropriate, human-centred support (so we can actually undertake the actions required to best care for ourselves and others, including our clients) cannot be overlooked.

Endnotes 1 Available at https://www.ontariocourts.ca/coa/ about-the-court/publications-speeches/thelitigator-and-mental-health/ 2 Last year, the Society surveyed SA practitioners about their mental health and wellbeing. 47% of respondents advised that working in the legal profession negatively impacted their wellbeing, and almost 60% admitted to considering leaving the profession in the last two years because of mental health issues related to workload or work pressures. Key wellbeing threats include workload pressures, billing stress and profit-centric

workplace cultures, bullying and harassment concerns, vicarious trauma (especially for those working in family, criminal and personal injury), perfectionism, compliance and regulatory stress, isolation, and difficulties switching off or sleeping - with over 70% of respondents reporting fatigue or disrupted sleep. 3 Including effective pathways to address such behaviour at the judicial level - see, for example, discussion in https://barnews.nswbar.asn.au/ winter-2021/44-inappropriate-courtroomconduct/ 4 That said, please remember that support and guidance is available - all practitioners should seek assistance (including from GPs or psychologists) as required, without guilt or shame. Law

Society support services include LawCare, the

Professional Advice Service, Young Lawyers’

Support Group and Complaint Companion

Service. See President’s message, June 2021 for more details about these services as well as links to other resources such as the National Mental

Health Commission’s evidence-based guidance for creating Mentally Healthy Workplaces, and

Beyond Blue’s ‘Heads Up’ program.

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