"Complexities of appellate law: Experiences and perspectives of Utah indigent appellate attorneys" (by Whitney Howey, Stephanie Kathan, Jeremiah W. Jaggers & Chris Cambron): Review 2

Vote: Publish pending minor changes

In sum, this is a well-written, and well-researched, article that makes an important contribution to the field. It is an absolute delight, and I feel privileged to have been afforded the opportunity to do this review.

In this review, I do two things.

First, regarding style, I am forwarding to the authors (through the editor-in-chief) a separate markup copy of the article that focuses solely on “little things” like typos, spelling, grammar, word usage, and the like. To be clear, there are very few of these kinds of errors; the original edition of the paper that I reviewed was very well-written. These are the kinds of errors / ambiguities that creep into all of our writing when we’re up at 2 am. Still, we strive for perfection, and so I’ve flagged a few items that I would like the authors to consider for potential revision. I have no doubt – given their commitment to quality in the original – that they will make good decisions on which of my minor edits to accept and which to reject.

Second, regarding substance, in the “additional info” section of this Review Form (see below), I make a number of substantive comments for the authors to consider about the substance of the article. The authors may elect to do any of the following regarding these substantive comments: (2a) They may ignore the recommendations; (2b) They may decide to make changes to the current article in response to the recommendations; or (2c) They may decide to employ the recommendations in one or more subsequently authored articles – in a series of articles – that springboards off of this one.

Please put additional info below, as/if you see fit:

• Additional Info:

“Hard to Believe”

I: First things first – I want to emphasize again that I really liked this article, and I believe that the world is a better place for Howey, Kathan, Jaggers, and Cambron having written it. The problems you have identified are important ones, and – sadly – they are barely recognized (if at all) and poorly understood. However, all constructive social change begins with awareness and understanding, and you have helped make that happen here. You have applied the spotlight to an important social problem, and you should be proud of that.

Now, because the authors clearly are interested in making the world a better place through their writing, I will present a series of considerations for their review. These are comments / thoughts about things such as: (a) my reaction to the paper; (b) the things I would have liked to have seen; (c) things that might be better taken up in a series of related articles to follow. If the authors are interested in pure expediency, they can publish the paper “as is”. If, instead, they want to make minor, rather easy, changes that might increase the impact of the paper (and the frequency with which it is cited later), I believe that they will find – inside at least a few of the discussion items below – a useful suggestion or two (or perhaps the seed for a useful clarification or two).

II: This is a paper about a specialized instance of occupational stress, but – by its own terms – the paper focuses almost entirely on only one of the commonly perceived drivers of occupational stress (namely, the workload). This IS a paper about occupational stress, and that’s apparent in the very first line (“Although attorneys experience high-stress occupational environments…”). But, if one focuses upon the text of the paper, it focuses almost entirely on just ONE of the commonly perceived drivers of occupational stress – an excessive workload.

I open with the above observation, because I have investigated the CVs of all four of the authors of this paper. All of you have substantial training in the area of mental health, but you have very little direct personal experience in the practice law. I’m sure that these interviews were eye-opening.

By contrast, I, your humble reviewer, have substantial experience practicing law, but I have zero training or education in the field of mental health. FYI, I practiced law at three of the largest law firms in the country, and at three Fortune 100 corporations, for twenty-five years, before entering academia.

Why do I mention our backgrounds? Two reasons.

First, reviewing this article was something of a “cathartic” experience for me, and I want you to know that, as it could color my review. What many people do not realize is that lawyers working at the largest law firms in the country – where I spent the first decade or more of my career – often describe ENORMOUS occupational stress and burnout as a key aspect of that experience. It was a fascinating experience for me to be able to read your careful observations of what the indigent appellate criminal defense attorneys were experiencing – and to recall my own experiences with excessive workload and occupational stress – from a detached “clinical” perspective. It’s been two decades since I was in a pressure cooker of the sort that your five interviewees are in today, and I wish I had back then the clarity of perspective that I have today.

Second, I think that it would potentially benefit the article a great deal to provide at least a brief characterization of some of the things we’ve learned about “occupational stress” and “burnout”. Once again, recall that I have ZERO training in psychology. However, I have grappled with the crushing stress described by your interviewees – over a period of years – and, in an effort to gain perspective while I was doing it, I read (voraciously) everything I could find about stress and burnout in an effort to alleviate my own discomforts.

III: What the “Average” Lawyer Might Understand about Occupational Stress.

So, for example, here is what a lawyer – with no psychological training – has concluded from his own unscientific (but extensive and heartfelt) reading about occupational stress. I share this, because these high-level observations are the kind of thing that I believe would add immensely to the impact of the article.

Based on my own (admittedly unschooled) reading, I have concluded that there are several “theories” that create frameworks for describing when “symptoms” of stress or burnout will appear. These theories / frameworks all appear to revolve around four key drivers:

1. workload / demand (the higher the workload, the more likely you are to be excessively stressed and to demonstrate adverse symptoms associated with that stress (symptoms that likely reduce efficiency and productivity));

2. control (the less control you have, the more likely you are to be excessively stressed);

3. resources / rewards / support (the less tactical, physical, and psychological recognition, encouragement, support, and nourishment you have, the more likely you are to be excessively stressed); and

4. diathesis (predisposition to stress) (the greater your natural predisposition to experiencing stress, the more likely you are to be excessively stressed).

When excessive occupational stress continues untreated for an extended period of time, the productivity of the affected individual falls (sometimes plummets), and, if (s)he experiences “burnout,” (s)he might even leave the profession. This loss of experienced personnel is a HUGE loss for the institution, as it necessitates the hiring of a replacement (who may or may not be as experienced, but who will always have to get “up to speed” in his/her new environment) which makes the institutional workload crisis all the more unbearable.

As stated, the above four (4) factors are based on my own attempts at researching this issue, because I personally wanted greater understanding of what I was experiencing. (Many other lawyers – who are inclined to doing research as a result of their training – have probably engaged in similar efforts.) The four authors of this article can doubtless do a far better job than I or my peers of providing an accurate – but very high-level – summary of our current understanding of occupational stress and burnout, and thus helping the reader to place the observations of the interviewees in at least a general context.

IV: The General Relevance of the Four Drivers of Stress Listed Above to the Article.

If, for a moment, one ignores the workload “themes” identified by the authors (e.g., Personal Approach, Working with Clients, 23B Motions, and Waiting), and just reads all of the interviewee comments holistically, we can see that the experiences of the indigent appellate criminal defense attorneys DO indeed correlate with the kinds of observations we would expect from MOST people in high workload, low control, low support environments – we would expect them to be severely stressed and at significantly increased risk for (a) mistakes, (b) psychological disruptions in their professional and personal lives, (c) substance abuse, and (d) burnout.

To people who have experienced these kinds of environments before (and many of the readers of our journal very well may), the article makes for both depressing and uplifting reading. Depressing because one is reminded of the pressure cooker from one’s own past. Uplifting because it is possible today to view the battlegrounds of the past with a clarity that was elusive during one’s own time in the foxhole (“Maybe I wasn’t crazy – feeling as I did – after all.”).

An important comment: There is a lot of literature about the fact that “No situation is inherently stressful – stress is all about an individual’s reaction to the situation.” With all due respect, such bromides belong in fortune cookies, not in the professional toolbox of the trained counselor. The statement is true enough of course. At the edges of the bell curve, you will certainly find agoraphobics who are (sadly) afraid to even step outside their homes, and you will also find people who defuse ticking time bombs with no discernible change in blood pressure. Fair enough.

But, for the vast majority of individuals – all of us residing in the large fleshy middle of the bell curve – our experiences are remarkably similar. If you place us in a high workload environment, with little control, limited tactical resources, few psychological rewards, and little psychological support, we ARE going to be excessively “stressed”, and, if that excessive stress goes untreated, we WILL experience adverse symptoms, reduced productivity and life satisfaction, and, eventually, burnout (with all of the professional and personal costs that go with it).

V: The Wonderful “Themes” Identified by the Authors – Additional Perspectives.

Notice, in Theme 1 (“Personal Approach”), how many of the interviewees – in the grandest selfless tradition of public service – refused to criticize the system within which they worked and instead assumed almost all of the responsibility themselves for the fact that they found it difficult to keep up with the workload. Each acknowledges that he/she has different strengths and weaknesses in the practice of law, and they assume that their weaknesses are THE reason they find it difficult to keep up.

Some of the examples of this were particularly striking. For example, one practitioner noted that she felt she didn’t “have anything tangible to show for my work” (other than an outline, notes, etc.) as a result of her preparations for oral argument. However, the importance of oral argument to the appellate judges that she will be appearing before simply cannot be overstated. The articles, in state bar journals across the United States, about how important judges think oral argument is are legion.

No matter how well-written the brief, some judges will be confused about a particular point of law, and others may be concerned about how issue x in the current case will affect issue y in a future one. Oral argument is their opportunity to visit – fluidly – with the lawyers, on both sides of the case, who have slept with the issue, in detail, for an extended period of time. It is a golden opportunity for the judges and the lawyers to not only “get the law right” in the case, but also a final opportunity for the lawyers to change the mind(s) of one or more judges in favor of his/her client.

However, some activities are “checkbox” activities, and some are not. When you file a notice of appeal, when you file an appellant’s brief, etc., you have completed an activity that features a formal tangible document – that is easy to point to and count – and which “checks a box” when performance metrics are tabulated. However, when you consult with your client, investigate your client’s case, prepare for oral argument, or review your notes from prior work on the case, you often produce no new deliverable (other than possibly some notes or outlines in your work product file), and no new tangible formal deliverable is filed, and no new box is checked.

In an environment featuring an oppressive workload – one in which the goal is to get as many files, forms, briefs, and documents “checked off” the queue as possible – there will be both (a) formal pressures to get more “checkbox” activities done and (b) informal psychological pressures to conclude that “non-checkbox” activities don’t have value. Nothing could be further from the truth. If you don’t consult with the client and properly investigate the case, your activities and briefs will focus on the wrong things. If you don’t prepare for oral argument, an opportunity (perhaps your single greatest opportunity) to persuade the judge to rule for your client is lost.

All of the above is a part of a larger psychosis.

The implicit assumption that many practitioners labor under – in excessive workload environments like this – is the following: “If I can just work efficiently enough, and overcome my personal weaknesses in my practice, then I’ll be able to manage the load.” When one reads the statistics quoted elsewhere in the article (for example, about New Mexico determining that it has a 67% deficiency in the headcount needed to properly provide the necessary services), one realizes the core truths:

The five interviewees are doing nothing wrong.

They are NOT “inefficient” in the discharge of their tasks.

And “overcoming their weaknesses” would likely do nothing more than increase their throughput by, say, 5%, which will NOT significantly alter the nature of their relationship to the workload imposed upon them.

Bottom line: They are working – daily – at a Sisyphean (truly impossible, truly never-ending) task.

So, it seems to this reviewer, that our indigent appellate criminal defense attorneys need much more than help with the workload part of the stress equation. That help (in the form of the state hiring additional attorneys) may never come. Or, if it does, it may be years in the future.

Looking back at the four key drivers of stress mentioned above, what they also need is help with issues relating to control, resources / rewards / support, and diathesis (stress predisposition).

For example, training might help them to realize that they will NEVER conquer (or even tame) the workload, and they should stop fantasizing about the day their “to do” list empties.

Rather, perhaps they should begin reframing their view of their jobs. That is, they should begin thinking of their jobs as jobs in which they will deal – as best they can – with a flood of cases that will forever have an ordinary spread of great / good / bad / awful results, and that their real job resides in things like the following:

1. selectively putting in extra effort for the clients they deem most worthy (most likely innocent, having the best character) (note: this does NOT mean dis-serving their other clients – there will always be too many cases for anyone to handle with 110% dedication – rather, this means accepting the reality that 95% of (19 of 20) cases will get competent, skilled representation, and 5% (1 of 20) will get the extra effort that increases job satisfaction, increases happiness, and maintains sanity);

2. selectively putting in extra effort on the cases that will change the law in the courts for the better for all of the defendants and attorneys to follow;

3. developing reciprocal relationships with other indigent appellate criminal defense lawyers – helping each other on each other’s cases – also helping each other to become more skilled attorneys – so that (1) they do derive at least some of the benefits associated with economies (collaborations) of scale, and (2) equally or more importantly, they begin thinking of their jobs as being about the people they work with in the justice system and not just the case files they work on (a long list of files that will never be processed to completion);

4. viewing the “waiting” as an opportunity and not a problem, as they will often have several weeks or months to interact with their fellow defense attorneys to discuss arguments, helping them to remember more details AND sharpening their arguments because they’ve “tested” them with a half-dozen colleagues before oral argument;

5. working on task forces with the judges and court staff to improve workflow management and related systems, so that everything about the processing of cases is smoother and easier to manage for all of the judges, lawyers, defendants, etc.;

6. setting up social events so that indigent appellate criminal defense attorneys feel less alone and can gather (perhaps once a month) to celebrate the arduous nature (and nobility) of their work. These social events can not only help the attorneys, but also help their spouses. A spouse who has never experienced the extraordinarily excessive workloads described in this article can find it “hard to believe” (the title of this review) that such workload conditions and expectations really exist; after all, he/she has probably never personally experienced anything like it. The attorneys too will often employ this three-word phrase but with an entirely different meaning (as in “At times, it’s hard to believe I’ll get it all done this week,” or “I occasionally find it hard to believe in myself.”). Social events that include family and friends can publicly reaffirm the difficulty and nobility of the work and can make it easier for all to believe.

What do all of the above activities have in common? In short, they help attorneys to stop defining their value in terms of their ability to defeat the workload. The workload is an unsolvable problem, and trying to beat it is a “no win” proposition.

Rather, to psychologically survive, attorneys must consider re-framing their view of their jobs in terms of making the justice system better by helping their community of fellow indigent appellate criminal defense attorneys to experience greater control, greater resources, greater rewards, greater support, and greater success, and THAT becomes their principal measure of job satisfaction.

Now, of course, the workload DOES need to be addressed.

But, the efforts here are NOT about obtaining 2% of workload relief here or 5% of relief there. Rather, on the topic of workload, they should pool their efforts and devote them to brainstorming, developing, and lobbying for the kinds of COLOSSAL solutions that will be required to truly fix things (for example: (a) quadrupling the headcount of indigent appellate criminal defense attorneys; (b) organizing these attorneys into the functional equivalent of a law firm, so that specialization and economies of scale can create enormous efficiencies; or (c) other).

Notice, in Theme 2 (“Working with Clients”), we see an example of how difficult this vocation can be, because the psychological rewards are few.

For example, one of the rewards repeatedly promised in law school is missing. In law school, “zealously serving the client” is a theme that is repeated again and again (with the implicit assumption that one will then receive admiration and accolades from an admirable, just, worthy, and caring client). However, many criminal defense attorneys – if pressed – would probably acknowledge that they more than occasionally don’t particularly like or admire their clients. Rather, they think of themselves as zealously serving the justice system by: (a) keeping the police and the district attorney honest in terms of due process; and (b) ensuring that sentences that are handed down are no larger than necessary to be proportional to the crime.

But notice – the “justice system” often has no face, the “justice system” won’t take you out for a beer after a big win, the “justice system” won’t express admiration for your work product. So, there is little psychological nourishment / reward for the “wins” you experience on the job, which aligns precisely with the notion (present in the literature) that, when such rewards are absent, the likelihood of excessive stress increases.

This reinforces the critical need for reciprocal relationships, friendships, and social events inside this highly unique community.

In Theme 3 (“The 23B Motion”), we see that systems, policies, and procedures count in terms of workload.

An obvious type of solution that comes to mind is that 23B cases be “counted” differently in workload calculations. That is, indigent appellate criminal defense attorneys should be given 2x credit in terms of a 23B case’s contribution to their “total case count”. As a simple example, imagine that Alan is carrying 10 cases. Also imagine that Bob is carrying 10 cases, but 5 of Bob’s cases are 23B cases. Alan should be viewed as carrying a 10-case load, and Bob should be viewed as carrying a 15-case load. Perhaps the factor should be 1.5x instead of 2x. That’s a statistical exercise, and the interviewees probably have plenty of data to use to estimate the factor. The point of Theme 3 is that: (a) they’re not getting credit for working on the more-demanding 23B cases; and (b) by not recognizing this, there is actually an incentive to not pursue the 23B process (even in cases where it is appropriate), because it just creates more work for the lawyer with little benefit (an incentive that ethical attorneys would find particularly galling).

Finally, in Theme 4 (“Waiting”), we find the interviewees beating themselves up, because they have to review the work product they filed weeks, months, or even years ago in order to prepare for the hearing that will occur tomorrow.

Once again, the indigent appellate criminal defense attorneys are doing nothing wrong.

ALL men and women have imperfect memories.

ALL men and women, carrying hundreds of cases on a docket, having filed a brief weeks or months ago, would have to take time to review their prior filing, in order to be sharp (and not waste the court’s time) at a hearing this week. Also, oral argument is often a lawyer’s last, best chance of changing a judge’s mind, and it is the client that suffers if the lawyer skimps on prep.

In short, having to review their prior work product does NOT make them sub-par lawyers.

It makes them human.

Also, we should note that “waiting” often weakens the sense that we are “in control”. Obviously, we’d like for the defendant to be freed tomorrow, but that’s not going to happen because we have to wait for the court to rule on our motion. That makes us feel powerless.

But, that viewpoint can be changed with training. As described above, we can view the period in between filings, in between hearings, as the opportunity to re-consider our arguments, or even as an opportunity to “step away” from the case, so that, when we return to it, we are applying “fresh eyes” to the matter (which can produce creative results).

But mental paradigm shifts such as those described above most often occur as a result of counseling from skilled professionals (something lawyers are hesitant to obtain).

VI: In Sum: An Amazing Article about Workload, But Can it Be More?

So, in sum, the article does a spectacular job of capturing key aspects of the experience of the attorneys, and it frames almost all of these experiences in terms of workload. The authors may have made this choice because this journal – the Journal of Qualitative Criminal Justice and Criminology – speaks often to legal matters, and the authors may have felt compelled to focus almost exclusively on the legal aspects of the problem (which do mainly relate to workload).

However, our readers are aware of the broader context, and I suspect that most of them – reading the article – would hunger for at least some brief general guidance or commentary about the principal problems at hand: runaway occupational stress and the enormous potential for burnout (with all of its individual, institutional, and societal consequences).

I think that these four authors – all of whom have substantial training in mental health – could dramatically increase the frequency with which the article would be cited, forwarded, and discussed, by adding a brief, and very general, overview regarding occupational stress and burnout (of the sort described above – but much shorter) and then briefly explaining (as a preliminary matter) how the results can plausibly be viewed through that lens.

Two quotes that come to mind relating to all of this are as follows:

• “Perspective is everything when you are experiencing the challenges of life.”
  – Joni Eareckson Tada (1949-) (author who became a quadriplegic at the age of 17).

• “A little perspective, like a little humor, goes a long way.”
  – Allen Klein (1938-) (author, on the subject of the therapeutic value of humor, who lost his 34-year-old wife to breast cancer).

VII: In Conclusion.

The topic you have selected, the care with which you have done the research, and the article you have prepared presenting your results, are all a testament to your character, your intelligence, your diligence, your compassion, and your potential contributions during the years ahead.