Fear and Lawyering

• Author: Heidi K. Brown
• Pages: 22-23

Fear and Lawyering

Create a work culture of ‘psychological safety’

that encourages taking intellectual and creative risks

By Heidi K. Brown

In August, the A BA published a

“Well-Being Toolkit for Lawyers and

Legal Employers,” accompanied by a

“nutshell” guide summar izing 80 tips

to help lawyers thr ive. The two-page

guide highlights how a hea lthy legal

workplace includes such fact ors as

“psychologic al safety.”

I know, I know: A law fi rm is sup-

posed to be all ab out intellectual, men-

tal, and physica l toughness, strength,

confi dence and assertion—not emo-

tional sensitivit y. Before readers bristle

at the notion that I am tal king about

“safe spaces”—a term that ha s been

(unfairly) criticized in the contex t of

millennials on c ollege campuses—let’s

analyze what p sychological safety act u-

ally means in the roug h-and-tumble

legal arena.

I fi rst learned the ter m psychologial

safety in read ing Randall Kiser’s book

Soft Skills for the E  ectiv e Lawyer.

Kiser quotes Har vard Business School

professor A my Edmondson, who

defi nes the term as “a climat e in which

people are comfortable ex pressing and

being themselves.” In a professional

environment that cult ivates psychologi-

cal safety a s described by Edmondson,

individuals “fe el comfortable sharing

concerns and mist akes without fear of

embarrassment or retr ibution. They

are confi dent that they can spe ak up

and won’t be humiliated, ignore d or

blamed.” Can this concept apply to the

legal profession, in which ma ny of us

believe we are supposed to k now all the

answers and not make m istakes?

Our jobs as lawyer s are compli-

cated and chal lenging. Whether we are

legal novices or sea soned veterans, the

“right” answer to a leg al question is not

always apparent. Pro cedural rules can

be convoluted. The “correct” int erpre-

tation of a statutor y standard or a clear

synthesis of ru les from multiple cases is

not necessarily obv ious. Yet in our pro-

fession, it is not easy to a dmit we don’t

know exactly wh at strategic action to

take, or that we are h aving trouble fi g-

uring out a substantive a nswer.

Law school tends to rewa rd stu-

dents who exude confi dence—those

who readily engage in S ocratic queries,

embrace performa nce-oriented activ i-

ties like oral ar gument competitions,

excel in networking and job i nterviews,

and thrive in the “I must bre ak you”

(Rocky IV ) approach to legal train-

ing. Law practice lik ewise often rein-

forces the bravado mindse t: Never

show weakness, never let t hem see you

sweat, fake it ti ll you make it. Law fi rms

(and clients) expect their lawyers to fi g-

ure out the right answers . Mistakes can

have high-stakes c onsequences.

Because of this per vasive ethos of the

perceived infal libility of the “successful”

lawyer, many of us—perhaps on the less

outwardly as sertive side or naturally

inclined toward heav y self-criticism—

experience self-doubt and fe ar. What if

we can’t fi gure out the answer to t he cli-

ent’s complicated question fast enough?

What if we aren’t quick enough to

respond to opposing counsel’s barbs?

What if we aren’t 100 percent sure how

to proceed, though we have re searched

and ruminate d over every angle of the

client’s scenario but don’t know whom

we can trust or a sk for a gut check?

What if we take a str ategic or tactical

risk and end up maki ng a mistake?

Many of us don’t feel psychologically

safe to ask for guida nce from some-

one who won’t size us up as unworthy

of our jobs or our salaries . In contrast,

we constantly feel on edge a nd at risk of

professional harm. We forge ahea d any-

way, second-guessing our resea rch, our

judgment, our decisions. We pretend

everyth ing is fi ne. It ta kes a toll.

TESTING THE WATERS

What does psychologica l safety mean

in the realm of the lega l profession? To

me, it means being able to say to a law

o ce super visor or mentor, “Hey, I have

researched thi s client situation six dif-

ferent ways, I’ve spent three sleeples s

nights think ing about this, and I’m still

not sure of the right move, and I need

tangible advic e.” Openly sharing with

a supervisor or a mentor that we h ave

22 || ABA JOURNAL MAY 2019

Advocacy

EDITED BY KEVIN DAVIS,

LIANE JACKSON

Practice

PHOTO BY RAYMOND MONTALVO

HEIDI BROWN: “M any of us don’t feel

psychologicall y safe to ask for guidance

from someone who won’ t size us up as

unworthy of our jobs or our s alaries.”