Looking underneath the scar tissue
Why lawyer wellbeing matters—Professor Yvette Tinsley and Dr Nichola Tyler.
It is no secret the legal profession has higher than average levels of stress and wellbeing problems. Reports in Aotearoa New Zealand and overseas consistently document that lawyers are an occupational group at one of the highest risks of poor mental health, stress, and burnout. The potential for negative outcomes for individuals, firms, and the profession are beginning to be acknowledged.
It is widely accepted that those in caring professions who are exposed to other people’s grief and trauma experience detrimental effects on their own wellbeing. Lawyers working in areas such as criminal and family law therefore experience a ‘double whammy’ of occupational stress and exposure to potentially traumatic material.
Our research team spoke to 90 criminal lawyers working in both prosecution and defence, finding that they struggled to maintain wellbeing. Our criminal courts are places steeped in emotion, where the worst of human experiences play out in a purposely objective manner.
There is a professional expectation that lawyers and judges will suppress displays of emotion, resulting in an occupational cultural belief that building scar tissue—a ‘thick skin’— is both an aspiration and a necessity. Unfortunately, this building of scar tissue does not attend to the wounds underneath or prevent further cuts.
The responsibility of caring for those who are vulnerable is felt intensely by criminal lawyers, and the complex set of interpersonal, legal, and communication skills required to do their job can take an emotional toll when dealing with the experiences and emotions of victims, defendants, and witnesses. Lawyers work long, often irregular, hours, making it difficult to maintain personal relationships.
Not only this, but many reported their job had changed their world view in ways that limited how they lived their life and the decisions they made about their children. Most criminal lawyers we spoke to felt less trusting of others as a consequence of their job, becoming hypervigilant and sometimes fearing being home alone.
The profession is aware of the problem and has responded: for example, the New Zealand Law Society provides some access to counselling and peer support, some firms have put wellbeing supports in place, and earlier this year the Chief High Court Judge and Chief District Court Judge wrote to the Bench, drawing attention to the wellbeing concerns of the profession.
Despite some changes to policy and practice, lawyers told us that barriers to help-seeking remained, and many reported that current assistance with stress and burnout was inadequate. There is the potential for serious ramifications if we do not succeed in providing adequate support, for both individuals and employers: in September, the Coroners Court of Victoria, Australia, admitted failing to protect staff from vicarious trauma, bullying, and burnout. Wellbeing risks had been reported by senior staff and in staff surveys, but inaction by the court service ultimately led to its prosecution, following the suicide of a senior in-house lawyer in 2018.
Criminal lawyers told us they keenly felt the community’s lack of empathy for them. Despite this, their wellbeing should concern everyone. Criminal lawyers are essential to the function of democratic society: they ensure that the interests of society, in addressing harms, are represented via the Crown and that each citizen accused of a crime has an adequate defence. They need to be supported to assist court participants to navigate legal processes with accuracy, sound judgment, and creativity. We need them to be high performers in performing this vital community service. Their wellbeing should matter to us all.
Alongside the positive changes already being made by firms and professional bodies, our research has suggested some possible ways to approach criminal legal work in a more trauma-informed way, acknowledging the impacts and offering profession, employer, and individual options to support wellbeing and encourage help-seeking. For the next stage of our research, we hope to develop some of these options further. In helping others, criminal lawyers can be harmed themselves, and it is important that we help lawyers to continue their role by making it safer and better supported.
Professor Yvette Tinsley is the Academic Director for Te Herenga Waka Centre for Justice Innovation and a Criminal Law lecturer and Dr Nichola Tyler is a senior lecturer in Forensic Psychology at the Centre for Forensic Behavioural Science, Swinburne University of Technology. Together, they presented their findings in September at a public lecture hosted by Te Herenga Waka Centre for Justice Innovation and the Faculty of Law.
This article previously appeared in V.Alum 2023.