Practice What You Preach

  • October 05, 2023

Dear Advy,

My workplace claims to be putting mental health first but, overall, it seems to be just lip service or a recruitment tactic. Any suggestions on the best way to getting the higher ups to understand how important it is to take the mental health of their employees seriously?

Practice What You Preach

Dear Practice What You Preach,

There’s a couple of things I have to say up front in answering your question. The first being that your  question is essentially THE question that the CBA’s Well-Being Conference on November 7, 2023, is all about. Consider attending or maybe watching some post-event recordings for more insight.

The next point is that another person’s understanding of any issue is something that is outside your control. I get it. We are all lawyers here. Is not changing other people’s minds kind of what we do? It sure is, and those advocacy skills you use every day are going to come in handy for you. However, just like you must do when you advocate in court, you cannot measure your success or failure based on what someone else decides. You win some arguments and some you do not. A judge can sometimes get it wrong no matter how great a case you put forward. All you can really control is you. So, if you are trying to persuade those higher ups to take this issue seriously, focus on doing a good job of persuading them. If you go into this with the mindset that you have failed if they do not change, you are setting yourself up for disappointment and maybe even burnout.

Let’s carry on with that analogy to trial advocacy because it’s pretty applicable here. Here are ten ways you can apply that analogy to your current situation:

  1. Be clear on your objectives from the start – Would you organize your case, look for evidence, or research law the same way whether the outcome you were looking for was an acquittal on a charge of assault or an interlocutory injunction? I hope your answer is no. The goal of a case drives everything else you do. The goal of your pitch to the firm to improve its culture will also drive everything you do. Is the workload too high and needs to be adjusted downward? Are articling students and juniors being thrown under the bus when clients are unhappy with the firm’s service, and they need support instead? The specific outcomes you want changed may be any number of things. Think about the result you are aiming for and write it down. Plan the rest of what you do to achieve that and look back at this note occasionally to remind yourself where your focus should be.
  2. Marshal your facts and evidence - You need to be ready with the facts and the evidence that support the case you are making. You say that overall, the firm just pays lip service to the claims it makes in terms of putting mental health first. Put together the e-mails, memos, or other communications that lead you to that conclusion. If the evidence is in the form of verbal conversations, you have been part of, note down the dates and the individuals who made statements as accurately as you can. Be respectful of other people’s privacy, of course. As you would in a case preparation, gather the evidence and the consider if you must redact it or just not share it at all. Like some cases, the picture you are developing may not be based on a few “smoking gun”-type pieces of evidence, but rather it may be based on the aggregate of many smaller things which individually seem trivial but combined represent a serious threat to well-being. Put it all together in the most coherent way you can.
  3. Clarify the “Law” – The “law” in this context is the public statements the firm makes about its priorities and culture. I’m assuming here that the behavior you are concerned about in the firm is not unethical or illegal per se. If your firm is breaching workplace health and safety laws or ethical obligations, then yes consider those as well but if ethical or safety issues are at play then persuading the higher ups to do the right thing may not be enough. Get a clear picture of what exactly those statements are, recognising that they may be on a firm website, some may be in recruiting materials you received, some may be verbal promises made around the time you joined the firm. You say the firm does not live up to the standard it purports to set. Establish specific ways in which its behaviour breaches those standards.
  4. Know your forum and decision-maker – It will not help you to make a brilliant pitch to someone who cannot do anything about the problem. Know who in the firm you need to persuade to change the firm’s culture. You should also learn as much as you can about how that person or group of people think so you can tailor your message as well as possible. Is the decision-maker going to be motivated by the economic costs that lack of attention to well-being will have for the firm? There are many resources out there that can help you. Will they be motivated by personal stories? Will doing the right thing be a good motivator? Think through what will be the points that will resonate best with your audience.
  5. Enlist help where you can – A key skill for lawyers to learn is to know their own limits. You probably cannot do all of this on your own. Even if you can, your “case” may be stronger if you have the input of other “co-counsel” who can look at the problem from a variety of angles that may not occur to you.

By the way, changing firm culture is really hard work and it may be hard on you. Among the help to enlist from the start of this case is a counsellor who can help you through the difficult points. You can find a list of free counseling services available to you in your jurisdiction on the Well-Being website. Do not wait for a crisis to happen. Your counsellor is an essential member of the team you need to bring this case forward.

  1. Understand the weaknesses of your case – As you know from your day job, you need to have a strong understanding of the vulnerabilities of your case. Either on your own or with the help of others, assess what kinds of counterarguments someone could make to the point you are trying to make, and plan what you will do in response to those counterarguments. For example, if the firm manager points to the generous vacation allowance listed in the office manual be prepared to demonstrate the various ways the firm has made using that vacation allowance impossible for all practical purposes.
  2. When making your case, fully engage with the decision-maker - An underappreciated but very powerful tool in persuasion comes to us from the world of philosophy: “The Principle of Charity”. You may be more familiar with its mirror image “The Straw Man Fallacy”. When someone makes a statement, you should interpret that statement in the most rational way possible unless and until by questioning the person making the statement, you establish that the speaker meant something more irrational.

Let me give you an example. A senior partner assigns you a task to complete by the end of next week. You are leaving for a two-week vacation tomorrow. You could interpret their direction to complete the task next week as:

“I don’t care about your vacation. Cancel your plans and do this assignment.”

“I was unaware you had a vacation coming up. Please do the assignment when you get back.”

If you were to try to argue the reasonableness of the senior partner’s request, you would do best to start with the premise that the partner did not know or had forgotten about your vacation and did not intend to interfere with it. If you learn by asking the partner questions about what they meant, and after providing the information that you were going to be leaving for vacation right away, that the partner really does intend the first, most inflammatory interpretation of their request then you may need to appeal to other “higher-ups”. Until you have established that, your argument may fall flat because your interpretation of what they were asking was simply wrong.

  1. Lead with your best argument and finish strong – You may come up with many things you want changed in the firm culture, and reasons why it needs to change. Decision-makers invariably place the greatest significance on the first thing you say and the last thing you say. Make it easy for your audience to pick up on your best points.
  2. Remember that persuasion is a long game – You are introducing new ideas to someone and challenging that decision-maker’s assumptions. In the real world, people do not break down in the witness stand and admit they were lying the whole time. In the same way, your firm decision-makers are not about to fall on their knees and beg your forgiveness after your brilliant speech. Expect skepticism, doubt, and even possibly hostility, but above all do not expect instant results. They may say what you consider to be all the wrong things. What they say in that moment is not particularly important if what you are trying to accomplish is long term change. Remember also that sometimes a good case needs to be appealed if it did not get a fair hearing at first instance.
  3. Focus on concrete outcomes – You are not looking for comforting words here. Do not spend a lot of time looking for apologies in most cases. You are looking for a change in behaviour over the long run. Firm leaders may make mistakes or fail to keep their promises. There is a very good chance they will say things they later regret because they are surprised. They are human after all. You can respond to those shortcomings, yes, but if the overall pattern is developing in the direction you want to see it, then show some measured patience.

It is very tempting for organizations to reduce well-being to a checklist and a couple of staff webinars. Good for you for noticing where that is not enough to make a real change.  

Be well,

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