Improve Cognition
The practice of law is both a profession and an economic enterprise. Two of the primary commodities that attorneys and law firms sell are higher ordered cognitive ability and interpersonal relationship skills. The ability of a lawyer to bring both to bear are adversely affected by anxiety, depression, and substance use disorder (SUD). Far more so than is realized at either the individual or organizational level.
We know that lawyers suffer from SUD, anxiety, and depression at markedly elevated rates compared to the general public (See Lawyer Statistics & Studies). Yet, we live in a culture, and practice in a profession, that lacks awareness of how profoundly our cognitive and emotive states impact and influence each other. Neuroscience, psychology, religion, philosophy, art, literature, and other social domains contemplate and explore the intricate and complex interplay between our cognitive and emotive selves. In contrast, legal practitioners are trained to develop an analytically focused mindset to solve problems largely involving emotively charged issues. Lawyers receive essentially no education on developing their emotional intelligence, and there is virtually no structural framework within the profession to promote the development and maintenance of emotional competence. The great irony is that the emotional health deficits experienced by lawyers cause profound deterioration of their most valued attribute - Cognitive ability.
A lawyer living in unhealthy emotional states, consumed by anxiety, depression, and/or SUD does not perform at her optimal cognitive level. Most people, even the highly educated like attorneys, have very little understanding of what anxiety and depression are; how these conditions are diagnostically assessed and treated; and the substantial impact they have on one's ability to think clearly.
David Foster Wallace, the esteemed American author, penned a rather prescient parable - "There are these two young fish swimming along, and they happen to meet an older fish swimming the other way, who nods at them and says, 'Morning, boys, how's the water?' And the two young fish swim on for a bit, and then eventually one of them looks over at the other and asks, 'What the hell is water?" People who are suffering mental distress often aren't conscious of the fact they are suffering. They have lived in the "water" for so long that they don't know anything but the water. They are so acclimated to existing in an unhealthy paradigm that they aren't able to differentiate between healthy and unhealthy emotional states, and the effect that emotional discord has on cognition. They accept without awareness and suffer needlessly.
What is Cognition?
Cognition refers to "the mental action or process of acquiring knowledge and understanding through thought, experience, and the senses. It encompasses many aspects of intellectual functions and processes such as: perception, attention, the formation of knowledge, memory and working memory, judgment and evaluation, reasoning and computation, problem solving and decision making, comprehension and production of language. Cognitive processes use existing knowledge and discover new knowledge.
A wealth of psychological and neurocognitive research proves that those suffering from elevated anxiety, depression, and SUD are working at cognitively deficient levels.
What is Anxiety?
Anxiety is defined as a feeling of worry, nervousness, or unease, typically about an imminent event or something with an uncertain outcome. Anxiety is distinguishable from fear. Fear involves reaction to an imminent, known threat. Anxiety involves discomfort caused by worry about the unknown.
Our brains wire themselves to adapt to the environments we dwell in. Both our emotional and cognitive inclinations reflect the neural pathways our brains have developed as influenced by our environments. A person who lives in an environment characterized by constant uncertainty as to the outcome of important events, is more apt to develop emotive and cognitive neural networks that perceive the world anxiously.
The practice of law, by its very nature, is rooted in uncertain outcomes. The environment is anxiety producing. On any given day, a lawyer is faced with limitless, minute details, any one of which, if missed, could result in a poor outcome. Lawyers tend to dwell on the "what ifs" relative to outcomes. "What if I had just asked that one question on cross? Would the outcome have been different? What if I structure this buyout differently? There is risk either way, but if this happens, then that, and if the other thing happens, then . . .? " Lawyers spend an inordinate amount of time and emotive focus ruminating about unknown outcomes, and then choosing a course of action that may or may not produce the desired outcome. Attorneys are expected to control these outcomes, even when there are a multitude of variables that are impossible to control. Clients hire lawyers for the very purpose of controlling these unknown outcomes, a construct that imposes a seemingly unavoidable anxiety producing expectation upon the lawyer.
Conflict is another primary environmental variable that produces anxiety. Conflict produces feelings of discomfort in nearly all of us, but some people are far more sensitive to conflict, especially those prone to social anxiety. Studies show that lawyers suffer from interpersonal sensitivity disorders at rates far exceeding those found in the general population. Humans evolved to essentially get along. We need each other survive, but we also need to fight at times to protect ourselves, and those close to us. This duality affects each of us differently, and has nuanced impacts on our emotive states, which affect our cognition. What we do know is that being in elevated states of conflict for extended period of times leads to increased anxiety, and the practice of law is characterized by living in elevated states of conflict for extended periods of time.
Lawyers typically lack awareness that their neurology, thoughts, feelings of well-being, and behaviors have been shaped and influenced by the nature and demands of their careers. Once a person has awareness of the impact of their environment on mental well-being, there are a number of effective strategies that can be used to mitigate the negative emotional constructs that lawyers are susceptible to developing.
Generalized Anxiety Disorder
The Diagnostic and Statistical Manual of Mental Disorders - DSM- V (2013), sets forth the diagnostic criteria for generalized anxiety disorder (GAD). There are a number of other anxiety sub-disorders: panic attacks; social anxiety disorders, phobias, etc. Lawyers, as a cohort, endorse at elevated rates along the entire anxiety disorder spectrum. The GAD diagnostic criteria are set forth below:
A. Excessive anxiety and worry (apprehensive expectation), occurring more days than not for at least 6 months, about a number of events or activities (such as work).
B. The individual finds it difficult to control the worry.
C. The anxiety and worry are associated with three (or more) of the following six symptoms (with at least some symptoms having been present for more days than not for the past 6 months):
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Restlessness, feeling keyed up or on edge.
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Being easily fatigued.
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Difficulty concentrating or mind going blank.
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Irritability.
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Muscle tension.
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Sleep disturbance (difficulty falling or staying asleep, or restless, unsatisfying sleep).
D. The anxiety, worry, or physical symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.
E. The disturbance is not attributable to the physiological effects of a substance (e.g., a drug of abuse, a medication) or another medical condition (e.g., hyperthyroidism).
F. The disturbance is not better explained by another medical disorder (e.g., anxiety or worry about having panic attacks in panic disorder, negative evaluation in social anxiety disorder [social phobia], contamination or other obsessions in obsessive-compulsive disorder, separation from attachment figures in separation anxiety disorder, reminders of traumatic events in post-traumatic stress disorder, gaining weight in anorexia nervosa, physical complaints in somatic symptom disorder, perceived appearance flaws in body dysmorphic disorder, having a serious illness in illness anxiety disorder, or the content of delusional beliefs in schizophrenia or delusional disorder).
What is Depression?
Depression is a mood disorder characterized by despondency and overwhelming sadness. There are different types of depressive disorders: Major depressive disorder; seasonal depressive disorder; bipolar disorder, etc.
The DSM-V defines major depressive order as follows:
The individual must be experiencing five or more symptoms during the same 2-week period and at least one of the symptoms should be either (1) depressed mood or (2) loss of interest or pleasure.
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Depressed mood most of the day, nearly every day.
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Markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day.
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Significant weight loss when not dieting or weight gain, or decrease or increase in appetite nearly every day.
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A slowing down of thought and a reduction of physical movement (observable by others, not merely subjective feelings of restlessness or being slowed down).
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Fatigue or loss of energy nearly every day.
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Feelings of worthlessness or excessive or inappropriate guilt nearly every day.
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Diminished ability to think or concentrate, or indecisiveness, nearly every day.
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Recurrent thoughts of death, recurrent suicidal ideation without a specific plan, or a suicide attempt or a specific plan for committing suicide.
To receive a diagnosis of depression, these symptoms must cause the individual clinically significant distress or impairment in social, occupational, or other important areas of functioning. The symptoms must also not be a result of substance abuse or another medical condition.
Studies suggest that depression and anxiety disorders co-occur at a 50% rate. Depression and anxiety are also primary drivers of SUD. Substances of misuse provide temporary relief from the discomforting feelings caused by depression and anxiety, but contribute greatly to these conditions after the avoidance effect of the intoxicating substance wears off, leaving the user with an imbalance in key neurotransmitters that regulate healthy mood and competent emotional states.
The Effect of Anxiety and Depression on Cognition
The effect effect of anxiety and depression upon cognition is complex and hard to measure with absolute accuracy. The differences between people can fluctuate greatly, but it is known that anxiety and depression profoundly affect cognitive function, as well as motivation. The preoccupation with worrisome thoughts about unknown outcomes crowd out and take precedence over the efficient gathering and processing of information required to accomplish cognitive tasks.
If someone is emotionally distressed because their boss is verbally abusive, that person is more apt to have powerful, emotionally driven thoughts at the forefront of attention and focus. Try as he may, it is difficult to push those discomforting thoughts to the background, and focus optimal cognitive attention on immediate projects. If that same person has a heated conflict with opposing counsel, his thoughts and focus are likely to ruminate on powerful negative emotions, rather than bringing the required amount of focus and attention to finishing the interrogatories that are due at the end of the day. This time deadline stress then causes more discomforting feelings and more anxiety. If there is a ruling due on a motion, the attorney may also drift into the mode of worry about the unknown. It may be an issue where the judge could rule many different ways. Depending on how the judge rules, the attorney may have to an unpleasant conversation with the client. What if the client gets extremely upset? What if the client fires the firm? If the client fires the firm, will the boss be back to yell at the attorney again? What if they then fire me? What will I tell my wife? The rumination about the unknown can continue unabated, and all of these thoughts crowd out the cognitive focus and attention required to efficiently deal with higher ordered cognitive assignments that require singular focus and attention to complete efficiently, with the highest degree of cognitive competence.
Living in a constant state of emotional upset tends to create an overall negative perspective over time. People with chronic negative perspectives, tend to lose the ability to bring cognition to bear to focus on immediate engagements requiring the application of cognitive ability.
Another factor that may lead to high rates of anxiety and depression in legal professionals is our cognitive training. We're trained in the school of logic, rooted in skepticism. Skepticism is the questioning or doubt applied to any topic. Lawyers doubt propositions and seek to corroborate to verify. This skill is critical to being effective and successful as an attorney, but this skeptical mindset trains the brain to view the world in a doubtful way. This type of a mindset tends to lead to emotional paradigms of isolation and negativity. People become isolated within themselves when they inherently lack trust in others, and their environments - Always questioning to verify, rather than trusting people and constructs. The ability to trust in a healthy way is critical to feeling connected to others, our environments, and our purpose. Both isolation and negative perspectives elevate feelings of anxiety and depression.
People who are depressed experience the same elevation of worrisome thoughts as those with anxiety experience. These thoughts take precedence, in the same sphere of consciousness where cognition occurs. Crowding out the attention and focus required to complete a task. Depression also lowers motivation, impairs memory, disrupts information processing and decision-making skills. Depressed people have lower cognitive flexibility, which is the the ability to adapt goals and strategies to changing situations. Executive functioning, the ability to plan and execute the steps necessary to achieve long-term goals, is also severely impacted in those suffering from depression.
A 2008 study compared controls to cohorts diagnosed with depression and anxiety disorders. A battery of neurocognitive tests measuring memory, psychomotor speed, reaction time, attention, and cognitive flexibility was administered. Only 4% of the control group fell two standard deviations below the mean (clinical significance), but 19% of the anxiety cohort, and 21% of those with depression fell into the clinically significant category for cognitive impairment.
A 2013 study sought to measure the effect of major depressive disorder (MDD) on cognitive impairment with a focus on workplace performance. The researchers found pronounced cognitive deficits in executive function in 20 -30% of the individuals with MDD. The MDD group also showed deficits in working memory, attention and psychomotor processing speed.
Anxiety and depression are treatable, and once treated, cognition improves dramatically. Perhaps more importantly, especially for those who suffer from depression, motivation is greatly improved.
The Effect of SUD on Cognition
SUD has a profound effect on cognition that is present even when the addict isn't acutely intoxicated. A lawyer who drinks two to three bottles of wine a night, but doesn't drink during work hours is still very likely cognitively impaired while practicing. A 2014 study found that 50% to 80% of those with alcohol use disorder (AUD) had moderate to severe cognitive impairment. The areas of cognition primarily affected by SUD are executive functioning, memory, and visuospatial capacity.
Executive functioning (EF) is the set of mental skills that include working memory, cognitive flexibility, and self-control. EF allows goal setting, planning, prioritizing, and structuring to accomplish complex, longer-term objectives. Working memory is a skill that allows us to work with immediate information without losing track of how that information fits into the overall objective. Cognitive flexibility allows us to analyze and adapt our problem solving ability to changing variables. Self-control draws on the ability to use inhibitory skills to focus thinking when faced with emotional upset or other distractions that detract from the ability to stay on task. Concept formation, processing speed, and problem-solving capability are cognitive abilities impacted by deficits in EF. The vast majority of the work done by lawyers requires a highly refined executive functioning skill set. SUD profoundly impacts this critical area of cognitive function, even when the attorney isn't acutely intoxicated.
Memory is also impacted by SUD. Memory is the encoding, storage, and recall of information. The practice of law requires the ability to onboard large amounts of disparate information, and efficiently recall that information as needed. The inability to recall a minute, detailed piece of relevant information, in an ocean of other information, could lead to disastrous consequences for a client. A healthy memory is critical to the effective practice of law.
Executive functioning ability resides primarily in the frontal cortex of the brain. Memory functions are centered in and around the hippocampus, a structure located in the mid-brain. Imaging studies of chronic alcohol abusers show between 15% to 23% less neuronal density in the frontal cortex regions of the brain. The hippocampi of those with AUD was also found to be significantly smaller than those of controls. Id. at 2.
Alcohol abuse causes brain damage that results in significant compromise of cognitive ability. Critical brain regions shrink, lesions form, healthy neural connections required for optimal cognition are disrupted. Unfortunately, the nature of the practice of law provides good cover for SUD related cognitive decline. Lawyers have a high degree of cognitive autonomy. Most legal problems can be approached in a number of different ways, and ill-advised strategies can be rationalized after the fact. Its also relatively easy to shift focus to another reason for mistakes, with projection onto others being a primary way to divert attention.
The Good News: The brain is an incredible organ, with the ability to recover cognitive deficits caused by SUD through neuroplasticity. A 2014 meta-analysis study found that cognitive ability in the vast majority of the large cohort studied returned to normative levels around a year after abstinence. Immediate cognitive improvement was noted after the commencement of abstinence, but the brain does takes time to heal. Physical exercise and meditation practice have been proven to have a large, positive impact on healthy brain development. Healthy emotional regulation also improves cognitive ability.
Those of us in long-term recovery can attest to wonderful gift of getting a new and improved brain. We learn new skills to regulate our emotional states that promote enhanced cognitive ability. Our anxiety and depression are replaced with serenity and motivation that elevate cognitive clarity and performance in all areas of life. The first few months of recovery are hell, but our cognitive competence improves daily. After a few years of sustained abstinence, we tend to have immense gratitude for our addictions because we wouldn't have discovered a new way of living, a sense of peace, clarity, enjoyment, productivity, and fulfillment had we not become addicts. Our better brains, post-recovery, are substantially responsible for these incredibly positive phenomenological changes.
Treatment for Anxiety and Depression
Anxiety and depression are major problems in the legal profession (See studies), but they are very treatable. A major impediment to improving well-being in people suffering from these conditions is that a significant number don't know they are afflicted. They are fish in water who know nothing but the water. But unlike SUD, the vast majority with anxiety or depressive disorders are readily amendable to engaging in treatment, and once treated, cognition and all other areas of life function bounce back relatively quickly.
Anxiety and depression at the individual level are treated clinically by mental health professionals. Medications are often appropriate and helpful. Other protocols, like group therapy, mindfulness training, exercise programs, work-life balance modalities, work structure modifications, and addressing non-work related stressors are also extremely helpful.
At the organizational level, the law firm or legal employer can adopt policies and procedures to foster a culture that is more positive, more inclusive, more supportive, less conflict oriented, and less overwhelming in terms of unhealthy workload expectations and requirements. Implementing programs to raise the consciousness and awareness of these problems within the organization is key to reducing their prevalence. The ABA's seven point framework is an excellent overall foundation for addressing anxiety, depression and SUD. The challenge for law firms and legal service organizations is the implementation of the most effective modalities.
Vivon has expended considerable effort to develop and tailor programs and protocols that have proven efficacy. They work, but they require a commitment and a willingness to alter negative cultural practices, and the devotion of resources. Aside from the moral and ethical imperatives, the business case for adopting these protocols is overwhelming. Healthy emotional states are fundamental to optimal cognitive performance. Every lawyer and legal service provider needs to assess these vital areas of functioning in order to thrive and find fulfillment.
Starting Point - The Wellness Survey
The Vivon Wellness Survey is a highly effective tool used to identify legal professionals suffering from mental health disorders and SUD. It was developed in collaboration with academics in the fields of psychology and SUD. It incorporates tests with proven validity and reliability to identify individuals suffering from a variety of mental health disorders, including anxiety disorders, depressive disorders, stress, and SUD. It also elicits information that identifies causal sources of dysfunction within a legal services organization that contribute to elevated levels of mental distress.
The test is confidential. Those who test positive for any particular issue are contacted privately, their results explained, and appropriate referral and aftercare protocols are put in place. The survey and follow through dynamic is effective in identifying those with anxiety, depression and SUD, and putting the resources in place to foster emotional well-being and improve cognitive function.