Attorneys as a rule are not strangers to stress, but employers should take care that the work environment they create is motivating their attorneys to excel and not contributing to attorney burnout.
Burnout! We have all heard colleagues complain that they are “burned out” or nearing burnout. Most of us say we feel burned out when we have been under a lot of pressure or working long hours for a protracted period of time. How many of us, though, realize that burnout is a real psychological condition, not merely an expression?1 And how many of those in supervisory positions realize that the root causes of this condition are found not only in an individual’s personality, but largely in the work environment? This essay will examine the psychological definition of burnout, the costs of burnout, the factors contributing to burnout, and how legal employers can structure their work environments to minimize their numbers of burned out attorneys.
What is Burnout?
The first element of burnout is pervasive individual exhaustion.2 While most of us work long hours at least some of the time and we all have stretches when we feel exhausted, for most of us those stretches are temporary. Some aspects of our work may even be energizing. Preparing for trial or completing work on a large transaction can produce a rush, even as it taxes our energies. While short-term physical fatigue is likely part of the picture, it’s not the same as mental or emotional fatigue that lasts for weeks at a time. Such complete and prolonged exhaustion is what distinguishes burnout from the rigors of enduring a tough stretch at work.
Cynicism about work and depersonalization of those one must deal with at work are a second set of symptoms.3 Initially these may emerge as a coping mechanism in response to a heavy workload or unrealistic job demands, but unrelieved may harden into a fixed element of the burned out attorney’s outlook.4 Despite occasional cynicism, most of us enjoy our work and strive to give our best effort. In contrast, the burned out attorney finds it challenging to do the bare minimum, often rationalizing that no one cares about the difference in performance anyway. The deeper he sinks into burnout, the more his work decreases in both quantity and quality; and his attitude toward both supervisors and clients becomes increasingly hostile, contemptuous, and impersonal.
The combination of exhaustion and cynicism leads naturally to the third symptom of burnout, which is a complete sense of impending failure.5 The burned out attorney believes that each assignment will end in failure, a psychological starting point that becomes a self-fulfilling prophecy. Beginning each project anticipating failure, the burned out attorney finds it virtually impossible to invest more than minimal effort. Minimal effort leads to marginal quality work, which elicits critical feedback. For one who begins the task anticipating failure, such criticism—no matter how well-intentioned—simply confirms the sense that the task was doomed from the beginning.
The Cost of Burnout
It pays employers to address burnout as soon as they see it because burnout has tremendous economic cost for legal employers through its impact on the health of burned out associates. Burnout can cause an individual to experience physical symptoms such as breathing difficulties, skin problems, recurrent flu, and even heart attack.6 Burnout can result in absenteeism, job turnover, low productivity, decreased job satisfaction, and reduced commitment to the job.7 Burned out attorneys work at a suboptimal pace and produce work product inferior to their capabilities. A burned out attorney is not going to provide great client service or be marketable. Ultimately the lawyer will quit the work environment, leaving for another firm or leaving the practice altogether. The cost of recruiting lawyers and training replacement attorneys is well documented.
Burnout can also spread like a virus to other lawyers in the office. Burned out attorneys constantly complain and demoralize their colleagues with their cynical views of clients and coworkers. Burnout contributes to a perception that legal practice is cold and uncaring. Combating burnout helps create a healthy work atmosphere for all.
Putting Out the Fire
Psychologists believe that burnout is generally on the rise in all work settings8 and its signature causes are consistent across professions. The causes of burnout can generally be divided into two categories: those related to the work environment and those related to the individual. It is important to understand both contributing factors in order to fight the blaze. Individuals with certain personality characteristics may be more susceptible to burnout, for example:
young idealistic professionals with unrealistic expectations about the work situation;
empathic people who pour too much of themselves into their jobs;
people with inadequate stress-coping mechanisms.9
Employee attitudes also can create burnout.10 Over-dedication—going overboard in one’s dedication to the job and clients with no sense of perspective—can put an employee at risk. Another risky attitude is perfectionism—the unrealistic expectation that one can or must perform flawlessly. Finally, being a “control freak”—one who can’t conceive being in less than absolute control over everything—is yet another hazard.11 All of these employee characteristics can increase the chances of burnout.
Among factors relating to the work environment, increased competition (both local and global), downsizing, and the subordination of personal values to economic values in the job setting have led to a documented increase in burnout across the professions.12 Those same factors permeate the legal profession. Firms are increasingly forced to compete with one another both locally and globally for clients.13 Larger clients have increasing leverage to press for reduction of hourly rates.14 Those factors and the explosion in associates’ salaries have more and more firms feeling economically squeezed.15 Firms need more hours and more productivity from their associates just to maintain the economic status they previously enjoyed, to say nothing of any desire they may have to grow. Firms are quicker to terminate lawyers who are not economically productive, and those lawyers who do have a lucrative book of business are more willing than ever to jump ship is search of more dollars. The result for many firms is a constant tension between the personal values and culture they want to embrace and the economic realities that they face.16
Controlling Workplace Factors
While employers cannot control the personalities of their attorneys, they can minimize the risks of attorney burnout by controlling the environmental factors that contribute to burnout. Even personalities predisposed to burnout can avoid it in a healthy work environment. What can an employer do to minimize its risk? How can an employer prevent burnout and keep its best attorneys with the firm, happier, more productive, and producing better work product? Here are six workplace factors employers can control to improve their employees’ attitudes and decrease burnout.
Any attorney has faced a stretch with a crushing workload. It may be the weeks leading up to a big trial or having multiple trials scheduled in successive weeks. It might be completing a merger or acquisition on a short timeline. We have all had the emergency situations inherent to the practice of law, such as obtaining a temporary restraining order or handling a client phone call late in the day. Emergencies happen and lawyers must respond. We have all probably also endured a stretch where our firm was understaffed for the workload, either needing more attorneys or more support staff. In short, each of us has wished there were more hours in the day to accomplish everything we need to accomplish.
Each of us has an amazing psychological capacity to endure and even thrive in those times, provided that the periods of stress are short-lived and followed by a chance to recover.17 Attorneys slide into burnout if every day provides more work then they can ever accomplish or every day presents stressful and unrealistic deadlines. Conditions that over a short term may produce psychological benefits will over a long term produce burnout.
To fight this problem each employer should evaluate if they have enough support staff. Do attorneys know what support staff resources are available to them? Can they ask a librarian to cite check their work? Is there a paralegal they can ask to format their brief? Do they share an administrative assistant and, if so, whose work gets priority? Is there overflow dictation support? Employers may have attorneys—especially newer attorneys—who are taking on extra work that could easily be given to someone else, making the attorney happier and also more productive. If an employer is consistently short on resources it may be time to assess hiring needs.
Every employer should have a structured way to control workflow that goes beyond simply asking the attorney how busy he or she may be. The supervising lawyer should understand each assignment the associate is tasked with completing and the deadlines the associate is facing. Further, the supervising lawyer has to work to establish a trust relationship with the attorney being supervised so that the attorney is willing to be honest about feeling overwhelmed. Supervising lawyers often tell the new lawyer she can come for help if she is overwhelmed; but when the new lawyer does so, many senior lawyers tell her, “Get used to it,” or “We are all busy,” etc. Those comments, even if made by only one supervising lawyer, spread like wild fire among attorneys and discourage everyone from reporting being over-worked.
The supervising lawyer’s comments may be accurate. Everyone may be enduring a difficult stretch on a case and lawyers do need to learn how to handle busy stretches. What is missing and key to effective supervision, though, is giving reassurance that the busy stretch will pass and that the associate will have recovery time. How many supervising lawyers encourage subordinates to get out of the office if they have completed a particularly overwhelming stretch? How many lawyers are encouraged to take all their vacation time? The key to minimizing burnout is not just to control the workflow but also to teach and encourage good recuperative habits. These recuperative habits have the added benefit of getting the attorney ready to take on new demands with a positive perspective, ensuring her best effort on the next case as well!
2. Control Over Work
Few situations produce as much stress as knowing that you will be judged on the outcome of your work on a case but having little control over how the case is going to be handled. This is the world in which many lawyers live. They are told to draft the motion but then told what they should or should not argue. They may be the scrivener on the appellate brief but have no input on what will be argued. In essence, they are asked to share in the consequences of each decision with no opportunity to disagree with it. In truth, nearly every lawyer has second-guessed a decision from the supervising lawyer assigning him the work. It takes time for lawyers to learn how to make the key strategic decisions in cases, especially complex legal matters. Employers should strive, though, to enable all lawyers to exercise control over cases and be decision makers. Are there pro bono cases or cases with smaller monetary values on which a new lawyer can take the lead? These can be great opportunities not only to help the lawyers sharpen their legal skills but also to give them a chance to make the decisions. Encourage attorneys to mix in these types of cases with their higher value cases. A senior lawyer can “second chair” these cases so that the lawyers are still well-supervised. The key is for the attorney to feel empowered to make decisions on the file. Supervising lawyers can also empower lawyers to feel control over their work simply by asking the supervised lawyers for input on difficult problems. A fresh perspective may lead to a good solution. Even if the supervising lawyer does not take the suggestions, simply having considered the other attorney’s input goes a long way to helping him avoid burnout. Once the decision is made, explaining your thought process to the other attorney and explaining how you considered his suggestion provides the added benefit of training him for a future of being the decision maker on cases.
Money alone is seldom the type of reward that motivates people.18 If money were the only answer, then the explosion of associate salaries at larger firms should have reduced burnout.
To truly motivate people and to help them escape burnout, you need to reward people with praise and acknowledgment of their work. Many firms circulate hours billed each month. How many also circulate each month a list of attorney accomplishments? Lawyers are notoriously bad at providing feedback, and the feedback they do give is usually critique.
Give new lawyers positive feedback for a job well-done. If the new lawyer wrote the brief that won the case, make sure senior lawyers let their colleagues and clients know of her role. This is a simple concept but psychologically powerful. Most lawyers work hard for their employers. Do they know their work is appreciated? Money and bonus programs alone seldom do the trick.
Successful employers create team environments. The best employers have a unity of purpose and a sense of what they want to work together to accomplish. At its core, mutual benefit is what leads people to work or partner together.
Why then do so many legal employers create environments built on competition among attorneys working together? Burnout most often occurs in environments with destructive competition, unresolved conflicts, and lack of support.19 Publishing hours billed can be a very effective motivational tool, but it also breeds amongst lawyers the sense that they are competing with others on the list. If partnership slots are limited, there is little incentive for one lawyer to help another. If a lawyer is stressed or having trouble, is there a support network for him to tap into? Is there anything in the employer’s structure to reward great teamwork or sacrifices made in the best interests of the client? Do firms reward attorneys for their non-billable efforts, whether pro bono service, bar association activities, or intra-firm activities like mentoring and associate development?
If attorneys believe that everyone is on the same team and that they will be rewarded for the success of the team, they will have higher job satisfaction and lower risk of burnout.
The greatest workplace hostility (eventually leading to burnout) is caused by the sense that the system has been rigged to benefit others.20 If an attorney feels there is nothing she can do to make things fair, then she begins to find other ways to get even, often by decreasing effort or leaving work early. She justifies these actions with the belief that the firm “owes her” since the rules were rigged against her to begin with.
This happens to lawyers when they are assigned to a bad supervising attorney or practice group while their friends end up with great mentors and successful work assignments. At a macro level, employers should evaluate whether all attorneys have an equal chance to perform. Is each lawyer getting a chance to work for key senior lawyers? Are all attorneys getting quality work to handle or are some of your lawyers spending half their time writing CLEs for someone? If the employer has a minimum billing requirement, does each lawyer have enough work to meet it? Employers will have happier and more productive lawyers if each feels judged on his own merit rather than upon factors beyond his control.
6. Firm Values
People slide towards burnout if they feel their employer’s values cannot be reconciled with their own.21 Employers should, however, try to hire around common values and help to harmonize their attorneys’ values with the employer’s values.
Does the employer have a mission statement? In the mission statement does the employer tell its attorneys and clients about the firm’s core values? Every law firm is a business and all businesses want to make money. However, there are generally other key values that play into why the lawyers in a firm choose to associate with one another. Does the employer value advocating for a given cause even if there is more lucrative work to be found elsewhere? Is maintaining work/life balance a key principle? Perhaps the employer values practicing at the highest aspirational levels of professionalism more than simply making a buck.
Whatever the key employer values are, they need to be clearly communicated. If attorneys do not share the employer’s values they are best served by identifying that early so both sides can end (or not enter into) the work arrangement. Further, understanding the firm’s core values helps attorneys set priorities among competing work interests with confidence. If an employer truly values pro bono work, its attorneys are empowered to choose to work on those cases without worrying that they will later be penalized for billing ten hours fewer in a given month. Having a clear hierarchy of values lessens the risk of attorneys tearing themselves up by internally agonizing over how to choose among competing interests. Eliminating those conflicts reduces the chances of losing attorneys to burnout.
Burnout can impair the emotional well-being of individual lawyers and harm their employer’s bottom line. Employers should take the lead in addressing burnout by managing the work environment.22 By addressing the six key workplace factors in the ways we’ve discussed above, employers can not only do something beneficial for their attorneys on an individual level, but can also take steps towards significant cultural and financial improvement for themselves. s
1 Christina Maslach & S. E. Jackson, “The Measurement of Experienced Burnout,” 2 J. of Occupational and Behavioral Science (1981), pp. 99-113.
2 Christina Maslach & Michael P. Leiter, The Truth About Burnout (Jossey-Bass 1997), p. 17.
3 Id. at 18.
6 John Angerer, “Job Burnout,” 40 Journal of Employment Counseling 3 (September 2003), p. 98 ff.
8 Maslach & Leiter, The Truth About Burnout at 1.
10 Dan Kirschenbaum, “Burnout,” 7 CBA Rec. 11 (November, 1993), p. 20 ff.
12 Id. at 2-3.
13 See Peter J. Gardner, “A Role for the Business Attorney in the Twenty-First Century: Adding Value to the Client’s Enterprise in the Knowledge Economy,” 7 Marq. Intell. Prop. L. Rev. (2003), p. 17 ff.
14 See Patrick J. Schiltz, “On Being a Healthy, Happy, and Ethical Member of an Unhealthy, Unhappy, and Unethical Profession,” 52 Vand. L. Rev. (May, 1999), p.900.
15 See Stephanie Francis Ward, “Who Will Pay For Associates’ Raises: Partners or Clients?” 6 A.B.A. J. E-Report 5 (02/02/07), p. 1
16 Schiltz, On Being a Healthy, Happy, and Ethical Member of an Unhealthy, Unhappy, and Unethical Profession, at 911-912.
17 See Jim Loehr & Tony Schwartz, “The Making of a Corporate Athlete,” 79 Harvard Business Review 1 (January 2001), p. 122.
18 Maslach & Leiter, The Truth About Burnout, at 47.
19 Id. at 48-52.
20 Id. at 52-54.
21 Id. at 55.
22 Maslach & Leiter, The Truth About Burnout, at 38.
DAVID M. BATESON is director of mentor externship at the University of St. Thomas School of Law. Prior to joining the University of St. Thomas School of Law he worked in private practice at a large downtown Minneapolis law firm.
TIM HART is an associate with Igbanugo Partners International Law Firm, PLLC, and is a 2007 graduate of the University of St. Thomas School of Law. The opinions expressed in this article are those of the authors, who do not speak for the School of Law.