Opening Statement. Improving Decision-Making Under Stress

• Author: Barbara J . Dawson
• Pages: 4-4

LITIGATION 4

Opening Statement

BARBARA J. DAWSON

The author is chair of the Section of Litigation and a partner with Snell & Wilmer in Phoenix.

Attorneys are more resilient than most of

the population, correct? No. Wrong. We are

less resilient.

That was the opening question asked by

Dr. Diana Uchiyama, JD, PsyD, CAADC, who

gave a presentation entitled “Best Thinking

in Worst-Case Scenarios: Improving

Decision-Making Under Stress” at a recent

ABA Section of Litigation leadership meet-

ing. If you answered that question incorrect-

ly, you are in good company. The majority

of the audience of more than 200 litigation

leaders from across the country answered

it incorrectly too.

So, with this fragility of attorneys in

mind, what are litigators to do to maximize

their success under stress? Fortunately, “Dr.

Diana” answered that question too. I share

the highlights here and offer the entirety

of her presentation to you at http://bit.

ly/38TpEhl.

Starting with the concept that “anatomy

is destiny,” Dr. Diana explained that it all be-

gins with fundamental brain behavior. She

warned of the potential for “amygdala hijack-

ing” under stress, meaning that we are all sus-

ceptible to challenges with critical thinking

when anger, fear, or other high emotions

come into play. Under such circumstances,

we all have to rise above the tendency to re-

act with basic low-level reflexes of “flight,

fight, or freeze.” In other words, we all have

to train ourselves to do better than simply

react to stress with the judgment of our basic-

function “reptilian brain.”

The good news is that we can drastical-

ly improve our ability to deal with decision

making under stress by taking deliberative

steps in the moment. And our ability to bet-

ter take deliberative steps under stress im-

proves if, in general, our physical and men-

tal well-being are strong. In other words,

we can improve our decision making under

stress with (1) situational mindfulness and

(2) better wellness self-care in general.

Dr. Diana’s analysis resonates because

good litigators take performance prepara-

tion seriously—for example, focusing on

both specific facts and law applying to a

particular case and, more broadly, know

-

ing the general venue, parties, and subject

matter relevant for the “performance.”

Consistently, it is logical that we benefit

from understanding what sharpens our

mental “performance” ability both in the

short term and, more broadly, when un-

der stress.

For best short-term functioning under

stress, Dr. Diana reminds us that a simple

pause—or break to think between stimulus

and response—is key. Whether you think of

this pause as “mindfulness” or more like a

“time-out” chair, you get the idea. Stop, look,

listen—and pause to think—to overcome

amygdala hijacking in the moment.

More broadly, Dr. Diana reminds us that

resiliency can be increased by sustained self-

care. Apparently, there is no shortcut to what

we all know we should do to keep our in-

strument in top shape—physical, mental, and

social well-being are key.

Much has been written on this broader

issue of general well-being since recent

studies have shown attorney vulnerabil-

ity to alcohol and other substance disor-

ders, as well as mental health issues, to

be well above that of the general popu-

lation and other highly educated profes-

sionals. The 2019 landmark study of the

ABA Commission on Lawyer Assistance

Programs in conjunction with the Hazelden

Betty Ford Foundation spotlights the chal-

lenges. For information on this report as

well as well-being resources, see the web

-

site of the National Task Force on Lawyer

Well-Being at https://lawyerwellbeing.net.

For involvement in these issues as they

pertain to litigations, consider joining

the work of the ABA Section of Litigation

Mental Health and Wellness Task Force.

This innovative group, led by Richard Gaal

and Lara White, brings positive program-

ming and resources to litigators at https://

ambar.org/ltwellness.

As litigators, we have chosen a path of car-

rying the stress of others in high-pressure cir-

cumstances. I believe our profession to be an

honorable calling but also one that can take an

extraordinary personal toll. I thank Dr. Diana

Uchiyama for the good reminder that critical

thinking under stress requires both mindful-

ness in the moment and sustained self-care

more generally. May we all build our resil-

iency by following her good advice. q

BEST THINKING IN

WORST-CASE SCENARIOS:

IMPROVING DECISION-

MAKING UNDER STRESS