The legal brain

Last year’s Profile of the Profession revelations about poor mental health in law kick-started necessary conversations about how the profession can begin to make things right.

Perhaps the best place to start is with the basics. In short, we need to look at the ‘legal brain’.

For a profession where higher-order thinking is key, what does ‘a great legal brain’ really look like? What is actually happening in the brain, for example, when faced with prolonged conflict in litigation? What does the neurobiology tell us?

Why and how do the stresses brought about by coping with high caseloads, for example, impact the legal brain?

Earlier this month marked the publication of The Legal Brain: A Lawyer’s Guide to Well-being and Better Job Performance by Debra S Austin. It may well be a wise read for Scottish solicitors and all those interested in improving mental wellbeing in the profession. The book places legal practice ‘culture’ under the microscope, with questions around the normalisation of stress and the treadmill effect of billable hours.

Understanding the legal brain

However, it was an article by the same author a decade ago that really began to get to grips with what was happening in the heads of lawyers and how this impacted their longer-term health, performance and cognition.

In the article, ‘How neural self-hacking can optimise cognitive performance’ (Loy L Rev 59 (2013) 791–859), Austin provides a comprehensive explanation of the structure and mapping of the brain; the neurobiology of cognition and the impact of emotion on the brain – including the all-too-familiar fight-or-flight stress response that most solicitors will recognise.

In the UK, the Mindful Business Charter’s Guidance for Litigation Professionals includes a page dedicated to the amygdala – the small almond-shaped part of the primitive brain that is a processing centre for our emotions and senses.

The amygdala and its fight-or-flight response was highly adaptive when humans needed to flee from predators by prompting the hypothalamus (the brain’s control room) to release the main stress hormones, adrenaline and cortisol.

However, when external stimuli (e.g. threat and conflict) cause lengthy or repeated stress responses, the result can have an adverse impact on physical and mental health and cognition.

It is with these parts of the legal brain, and by developing ways to manage negative impacts, that resilience – and possibly performance – can be improved in a profession where higher-order thinking and problem solving are key.

Finding natural balance

The parasympathetic nervous system (PNS), referred to as the ‘rest and digest’ function of the autonomic nervous system, operates as a much-needed counterbalance to fight-or-flight activation. 

The PNS conserves energy, promotes digestion and nutrient absorption, slows heart rate, lowers blood pressure and limits adrenaline release. It relaxes muscles and induces feelings of calm, happiness and contentment as the hormone serotonin is released and levels of adrenaline and cortisol fall.

For legal practice this is significant as the fight-or-flight mode is activated more frequently than in many other sectors due to the inherent conflict in litigation and the problem-solving demands of legal work. Can solicitors willingly command the PNS into activation, thereby improving autonomic balance, minimising the harmful impact of stress and improving cognition? The answer is yes.

Exercise and movement, for example, have been shown to promote brain function by enhancing blood and oxygen flow, elevating key neurotransmitters and stimulating the production of brain cell building blocks.

The focus for Mental Health Awareness week in May was the positive impact of regular movement – and this may be a sustainable and compassionate approach for busy solicitors. The evidence for the benefits of movement are proven. After all, genes were coded for consistent activity, way back from when we hunted and foraged for food.

Contemplating mindfulness

In the aforementioned article, Austin also describes ‘contemplative practices’ as evidence-based prescriptions for lawyers to maximise cognition and counter the impacts of stress. Mindfulness, meditation, yoga, relaxation and practicing gratitude were among other neural ‘self-hacks’ she cited, to optimise performance.

The explosion of the wellbeing (and mindfulness) industry post-Covid has created varying levels of engagement and scepticism within employers. However, evidence indicates that mindfulness is the most effective cognitive approach to managing the stress response.

It increases grey matter and neuroplasticity (the connections between regions of the brain). It strengthens the insula (an important thin tissue) in the thinking brain, improves immune function and decreases distraction.

Because mindfulness allows space between awareness, judgements and reactions it improves decision-making and information processes – all important for a ‘great’ legal brain.

In Scotland, understanding of the benefits of mindfulness for solicitors is growing. The Law Society’s Lawscot Wellbeing online hub, for example, includes a section on the benefits of mindfulness, directing practitioners to resources, links and latest research.

Take a breath

There are few things more essential to our brain health than respiration. Breathing is an automatic function controlled by the respiratory centre of the brain but it is negatively affected by prolonged fight-or-flight activation.

Happily, we can learn to consciously change our 20,000 daily breaths through mindful breathing exercises that promote slower, deeper breaths. This is of value to the solicitor as this practice can be incorporated into the working day and has the immediate beneficial effect of activating the PNS and regulating cortisol.

The value and benefits of mindful breathing have already been acknowledged by the legal sector’s mental health charity LawCare, which includes a mindful breathing video called ‘Breathing Matters’ on its website.

There is clear evidence, too, that meditation stimulates ‘rest and digest’ and dampens the fight-or-flight response. Regular meditation practice reduces prefrontal cortical thinning, improves psychological functions and mood, and can fortify against cardiovascular disease, insomnia and anxiety.

Based on neuroscience and psychology research, therefore, Scottish solicitors can learn to activate their ‘rest and digest’ response and improve overall mental health, cognition and performance.

The Law Society of Scotland has included ‘supporting organisational culture in the promotion of wellbeing’ within its Risk Management CPD Guidance and it is clear that businesses who actively manage the risk of mental ill-health and absence reap significant people and financial rewards.

Looking at the mental health statistics within legal practice there is a pressing need for the profession to create the climate and culture where this research is embraced, and positively acted on, to benefit the legal brain. Deep breathing is not possible with our heads in the sand.

Written by Clare Stephen. Clare started her career as a solicitor with Drummond Miller. She became the first Director of Education at the WS Society where she established the legal PCC for trainee solicitors. Her outdoor qualifications and experience in HR led her to found Wild Workforce in 2023 delivering outdoor risk management and resilience CPD workshops in Edinburgh and Fife.