(Interview conducted on January 9, 2023)
Q: Thank you for joining the OBA civil litigation section. Could you tell me a little bit about your path through the legal profession?
A: I am a fourth-year associate in litigation at Torys. My practice focuses on commercial litigation and class actions, mostly in securities and employment law, but as I am still fairly junior, I work on a wide variety of cases.
Q: I’m going to come back to the fact that you’re a junior. But let’s start broad. What does burnout mean to you?
A: I have suffered from burnout on a number of occasions over the course of my career. It manifests differently for different people, but for me it’s usually a response to overwhelming work demands, including time, intellectual, and emotional commitments. Typically, it involves exhaustion, irritability, insomnia, difficulty concentrating, and apathy towards work, which can lead to apathy towards other parts of my life. When I’ve been burned out, I typically don’t have the energy to do anything except try to get through the work day. That leads to social withdrawal, which is a vicious cycle because it means I don’t have the energy to fully pursue the things that would normally help me alleviate the burnout.
Q: Could you tell me a bit more about what led to you identifying your burnout?
A: I’ve been diagnosed both with major depressive disorder and generalized anxiety disorder, both of which before started articling. So I was attuned to mental illness before I started in the profession, and had strategies to deal with those illnesses. Burnout is related and frequently has a lot of the same symptoms as those mental illnesses. But what distinguishes burnout for me is that it is usually work-related. So when I’ve experienced burnout, it has often come following particularly busy times. In my experience, there’s a direct correlation between the number of hours I bill and my mental health issues.
But you don’t always realize you’re burned out right away. It takes time for me to come to grips with it. You get tunnel vision about getting through the next motion, production, trial, appeal, whatever. You’re so focused on that that you neglect how you’re feeling and the symptoms you’re experiencing. Often it’s not until I’m working my way out of the burnout that I’m like, “Wow, I really wasn’t in a good place.”
Q: That’s an interesting point about the timeline. Because as litigators we know that there are busy times and light times. And we expect to survive the prior and recover in the latter. But if we don’t recognize the need to recover until halfway through the light times, we don’t consciously use that time to recover.
A: Exactly. When I went into litigation, I knew that there were going to be late nights. I knew that there would be weekend work at times, like when you’re preparing for trial. That’s usually unavoidable and comes with the territory. But if you’re working those same hours, and experiencing the same stress when you’re not in crunch time, that’s a problem.
I haven’t experienced the most burnout during multi-week trials. There’s a mental cleanliness to focusing on one thing, devoting your full attention to it. Rather, I experience burnout when I have ten fires at the same time and I’m trying to fight the fire currently in front of me, knowing that I have nine other fires to deal with once that’s done, and having to rapidly switch between them.
Also, when you’re on a trial team, people generally have visibility into what everyone is doing. If someone’s overburdened, then you can usually reallocate. But when you’re dealing with a bunch of fires simultaneously, you’re often working with different teams, so no one has that complete insight.
Q: We’ve already started talking about this, but are there any other factors that make litigators especially prone to burnout?
A: Litigation is frequently a zero-sum game. It’s a highly charged environment where you are producing work that is going to be criticized, not only by the opposing side, whose entire job it is to prove you wrong, but then it will be reviewed by a Judge or Associate Judge, who will also be looking for holes in your argument. Losing is hard, especially when the stakes are high. And then, in that highly charged environment, sometimes you’re dealing with particularly challenging lawyers who view anger or rage or impertinence or intransigence as the way to victory. All of that contributes.
Q: I said I would come back to you being a junior lawyer, so let’s go there next. Is there anything about being a junior lawyer that tends towards burnout?
A: We know that juniors are more prone to burnout. The National Study on the Psychological Health Determinants of Legal Professionals in Canada showed that 70.8% of legal professionals with less than 10 years of experience showed high levels of psychological distress. The rate for legal professionals between ages 26 and 35 was slightly higher, at 71.1%. Both are much higher than the rate for all legal professionals: 59.4%. So this group is disproportionately affected.
There are a number of reasons. First, law by its very nature has a very steep learning curve. So when you’re articling or a junior associate, you often don’t have all the tools you need to be set up. I had an incredibly positive, supportive firm that spent a ton of time training me, but still, you learn by doing and in the first few years, there are always things you haven’t done and don’t yet know how to handle. I remember being kept up at night by small claims files early on in my practice because it was just me. If I messed up, there was no one there to catch it. Meanwhile, I was working on files worth hundreds of millions of dollars that I was less stressed about than my $5,000 small claims files. Now that I’m in my fourth year, I’m no longer white knuckling it all the time. I get a Statement of Claim and I know what to do. I know the deadline for filing a Statement of Defence. I know the broad strokes of the next steps and the timeline.
Second, you may have heard the metaphor of glass balls and rubber balls, coined by Brian Dyson in 1991 and refined and retold by many since then. As lawyers, we all juggle many balls. One problem of being a junior is that we don’t know which ones are made of rubber and which are made of glass. We don’t know that some deadlines in the rules aren’t actually enforced, so if you miss those it’s not a big deal, while others have clear consequences, like getting noted in default. So we assume that they’re all made of glass and do whatever we can to keep them all in the air. We over-prepare and over-stress on tasks that are less important, and the hours just pile on.
Q: Having worked in both large and small firms, I know that the experience of a junior can be very different based on that factor. What are your thoughts on the experience at a large firm?
A: One of the advantages of being in a large firm is that there are more associates and bigger teams. When I’ve reached the point where I needed to hand off a file, there is often an associate who has the capacity to take it on. So if I know I’m not in a position to work to my standards, I can hand off a file, knowing that the client won’t suffer. Though, I admit that mustering the strength to say that I need someone to take on one of my files is very difficult.
Also, large firms offer counselling and mental health benefits. When I was articling, Torys started a pilot program of having a counsellor on call for us. The program was such a success that it has since been rolled out to all associates.
Q: You’ve spent about as much time in the pre-pandemic, in-person world as in the post-pandemic, virtual world. Are there any aspects of virtual practice that make burnout more common?
A: Through the pandemic, we all lost visibility into each other’s practices and work lives. When you’re communicating via email only, things get lost in translation, including tone. I remember wondering early on in the pandemic whether people were mad at me because emails are so often more curt than in-person dialogue. And, of course, that wasn’t the case. Now that we’re back in a hybrid model and we have those in-person interactions again, you can see the difference.
I have found that it can be really hard to build a relationship of trust in a fully virtual environment. I’ve been very fortunate that I have a number of people at the firm who I’ve been very honest with about my struggles with mental illness, from fellow associates to partners. Those relationships were created in an in-person environment. For people who started in the profession in a virtual environment, trying to establish that rapport through informal interactions, which is how trust is built, can be really, really difficult.
Q: Besides building relationships of trust, how do you prevent yourself from getting to that state?
A: There are certain things we all know about, like getting plenty of sleep, eating right, exercising, spending time with friends and family, disconnecting, seeking out counselling, and being honest with healthcare practitioners. We all know that those are important and help alleviate burnout. The challenge is that lawyers, especially juniors, are rarely in control of their schedules, which can make it very hard to do those things consistently. When I’m working long hours, the last thing I want to do is go to the gym or cook a healthy meal, and I tend to socially withdraw. There needs to be a discussion amongst firm leaders to find structural solutions to ensure lawyers have time to take care of themselves.
There’s a deep irony that we’re a profession obsessed with tracking our time, and yet we usually don’t use that data for anything other than billing. If you see an associate billing a disproportionately high amount of hours, you know that’s likely going to lead to burnout. The data is there. If you want associates to stick around as long-term, contributing members of a firm, then you have to look at the dockets and check in.
Q: Checking in is obviously important. It’s equally important that the subject of the check-in is willing to answer openly and honestly. Do you have any suggestions on how leaders can build an environment where juniors feel comfortable doing so?
A: It’s all about building trust. That comes from getting to know your coworkers – those coffee chats and walks back from the courthouse. It comes from being willing to give advice, and letting juniors come to you saying that they have no idea what to do. It also comes from sharing your own experiences. Every senior lawyer has made mistakes or been overwhelmed at some point in their career and being open about those experiences can be very beneficial for juniors.
Q: And it comes from being willing to engage on mental illnesses more broadly. We’ve touched on this above, but could you speak a bit more about the connection between burnout and broader mental health issues?
A: There’s a distinction between mental illness and mental health. Mental illnesses have specific definitions; they have to be diagnosed by mental health professionals. Mental health is something that we all have to deal with. So not everyone who is experiencing mental health challenges, such as burnout, is dealing with a mental illness.
But burnout has certainly aggravated symptoms of my depression and anxiety. I use similar coping mechanisms in dealing with my burnout as I use for my depression and anxiety. And lawyers suffer from both burnout and mental illnesses at a higher rate than the general public.
Q: In light of the connection between them, it’s interesting that there’s so much stigma around mental illness, but so much less around burnout.
A: Burnout is the only mental health challenge that lawyers have a perverse sense of pride about. I’m guilty of this too. If you ask any lawyer how they’re doing, you’ll often get, “I’m so busy”. You might even get, “I billed X hours this month”. Burning out shows that you must be killing it at work because they’re giving you lots of work and people must really trust you. It’s ingrained in the fabric of the profession. So there is this perverse sense of accomplishment with burnout, which is highly toxic, and should not be encouraged.
The number of hours you work in a month shouldn’t be an accomplishment. It should be: How do you feel about the work you did in the last month? How many friends did you see? How much time were you able to spend with your family? How many times did you cook at home? Are you bringing your best self to work? Are you enjoying what you’re doing? Those are the things that we should be celebrating.
Q: That’s a great place to end. Thank you so much for your time, and for sharing your experience with the OBA civil litigation section, and for continuing the conversation.
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