Neuro-Lawyering: What Do Our Behaviors Say?

Every year, law.com publishes a mash-up of “Lawyers Behaving Badly.” Some stories are horrific, and others defy logic and common sense. Have you ever wondered what made them do it? Have you ever wondered how someone could risk all they have to win? Have you ever wondered what the whole story is? Wait no longer, here are your answers.

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In October 2015, I attended the ABA Commission on Lawyer Assistance Programs’ (COLAP) annual meeting in Albuquerque, New Mexico. I serve as one of the first members of the ABA Law Practice Division’s Attorney Well-Being Committee, created in 2015. The committee has four subcommittees: Law Practice Management, Physical Wellness, Mental Health/Addiction, and Law Students/Young Lawyers.  I learned about the work done at COLAP and helped identify where the Law Practice Division can further assist our members.

One presentation, “Addiction: It’s a Brain Disease,” by Dr. Navjyot Bedi stood out to me. Dr. Bedi spoke about the medical science of the brain and how it directs our behaviors. He explained in simple terms how my brain controls my behavior, and how it is impossible for me to control my brain. Since the art of advocacy requires persuasion and influencing  people, understanding people’s behavior makes great business sense. If we learn to “read the behaviors” of our clients, opposing counsel and colleagues, we better understand how best to create innovative marketing and progressive technology that resonates. We also develop strong firm management cultures which then serve as the diligent keepers of firm finances.

The intersection of neuroscience and the law gained widespread interest in the 1990s. Neuroscience is an interdisciplinary science that collaborates with other fields, including chemistry, cognitive science, computer science, engineering, linguistics, mathematics, medicine, genetics, physics, philosophy and psychology. Think: old science marries to become new.  In 1690, John Locke said that we are a “blank slate” when we are born, and develop exclusively from environmental influences. Charles Darwin, the father of evolutionary biology, debunked the blank slate premise in 1859 when he published The Origin of Species, explaining the diversity of humans through evolution or nature. Both Darwin and Locke’s theories incorporate into neuroscience to scientifically conclude that no person is defined solely by nature or nurture.  Both are necessary to understand human behavior.

In Dr. Bedi’s presentation, I learned that the brain’s “reward pathway” prewires at birth for food, water, sex and child rearing. The reward pathway exists to reward us for activities consistent with our survival. These survival instincts are innate in all of us. In an ideal world, we would be born with perfect wiring, avoiding any need for the law to direct and guide behaviors. As lawyers, we know all too well that no human is perfect, including us. Our imperfections create difficulties in the practice, especially when lawyers become addicted to alcohol or drugs.

Dr. Bedi shed light on the development of our brains to help understand why some develop addiction to alcohol and drugs while others do not. After birth, six “nurture” factors can alter the reward pathway for addiction:

  1. Genetic predisposition
  2. Social factors and availability of drugs
  3. Environmental factors or trauma
  4. Co-occurring psychiatric disorders
  5. Disabling medical conditions
  6. Chronic pain

ABA TECHSHOW

In an ideal world, we would have a biography for each human that we come in contact with, giving us necessary background to understand the “complete” person.  This is the difficulty when the discussion of lawyer character and fitness arises. The ABA took great strides in 2015 when the House of Delegates voted to urge state and territorial bar licensing entities to eliminate any questions about mental health history, diagnoses or treatment when determining character and fitness to bar admission. The questions should focus instead on conduct or behavior that impairs an applicant’s ability to practice law in a competent, ethical and professional manner. By this action, the ABA has subscribed to the understanding that lawyers are defined by our behaviors, which our brains control.

Neuroscience, as Dr. Bedi explained, provides the key to understanding lawyers as fallible humans that are just as easily influenced through the six factors above. For healthy lawyer brains which lead to healthy lawyer behaviors, it is vital that we address the well being of lawyers in totality to how our individual brain reward pathways operate. Nature and nurture both operate to influence our profession, and as an association, it is comforting to see the forward movement toward the simple recognition that lawyers are human, too.

About the Author

Frank, LeonaLeona Frank is an attorney and member of the Law Practice Division’s Attorney Well-Being Committee. Follow Leona on Twitter @Minimalistlaw or reach her at lfrank@minimalistlaw.com or 317.698.7101.

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