In a World of Warners, Be like Elle

[Catherine Butchart is a recent Deakin University graduate with a Bachelor of Laws (Honours) and Bachelor of Arts.]

[Tamsin Phillipa Paige is a Senior Lecturer with Deakin Law School and periodically consults for the UN Office on Drugs and Crime in relation to Maritime Crime.]

Introduction

The legal profession is notorious for burnout, competitive and antisocial conduct, growing rates of mental illness and addiction, along with lack of diversity, toxic culture and working conditions. This toxicity is inherited and developed by the next generation of lawyers through law school, whereby hypercompetitive individualism is encouraged and even rewarded. The known detriment this has to students in law school and beyond in their careers as legal professionals – if they even choose that path as an estimated 30% of law graduates never intend to practice law– is a cause for concern as to the culture law school and the profession breeds. This piece explores these toxic norms within the Australian context, though this toxicity occurs in most jurisdictions. There are many theories as to why this occurs, which are explored briefly in this piece.  

There is an alternative approach to these norms, one that focuses on the practice of kindness, community building, and prosocial conduct. We explore these ideas, using Legally Blonde as a widely known source of pop culture that explores these ideas, albeit these themes are exaggerated for the benefit of the viewer. Elle Woods embodies the prosocial behaviour we refer to in this article. Throughout the films she rejects the toxic norms found in the legal profession and through doing so maintains her integrity and is ultimately rewarded for this. We suggested that students and lawyers should ‘be like Elle’ as opposed to Warner or Callahan, who embody the issues found in the legal profession.

While such a pro-social approach almost certainly won’t end the toxicity of the legal profession, it does have the capacity to create pockets of alternative reality within the profession. This can enable individuals to have more job satisfaction, maintain integrity, and encourage a diversity of thoughts and culture in the legal profession. Though ultimately the practice of kindness may not revolutionise or disrupt the hypercompetitive nature of the legal profession, it can create safe pockets for those who love the law but can’t or won’t accept the toxic environment that is normalised in legal practice and law school.

Toxicity in the Legal Profession

There is a wealth of literature that toxic behaviour is learned first in law school and carried through to the legal profession, where such conduct is expected and rewarded. Students indicate that their pursual of law school is established from a love of learning or a need to pursue justice and protect the community. Krieger and Sheldon refer to these as intrinsic motivations and argue that law school teaches its students to focus on extrinsic motivations – attaining clerkships and coveted top tier law firm graduate roles. Law school as a result shifts students’ motivation for studying and practicing law from one of personal rewards to more tangible rewards such as prestige, power, and financial gain. This leads to a substantial decline in student wellbeing as competition and individualism is encouraged.

This environment contributes to negative experiences that law students and legal professionals have. Lawyers routinely experience higher rates of depression and substance abuse (alcohol and drugs) than the general population. Similarly, the prevalence of substance abuse in law schools is of growing concern. This is compounded by the knowledge that the legal profession is toxic and stressful – there are insufficient jobs for the number of law graduates each year in the positions they are taught equate to success, burnout is prevalent, and many leave the profession 3 to 4 years after admission. This can be significant to legal professionals who come from low socioeconomic backgrounds, who are outnumbered 7:1 in law school by their peers who come from well-off backgrounds, as the stakes are higher due to money and time placed into becoming accredited. It also damages the legal profession as there is a lack of diversity, which some firms are attempting to challenge. Steiner reflects that ‘implicit bias’ is the route of the problem, manifesting in multiple facets of legal practice including retention, performance evaluations, and career advancement. Women – particularly women of colour – indicated a need to go above and beyond their male counterparts to be taken seriously in the legal profession.

In the Australian context, one in four women legal professionals identified in the Law Council’s 2013 National Attrition and Re-Engagement Survey that they experienced sexual harassment in their work place. Headlines of alleged or actual sexual harassment committed by top lawyers are not uncommon – see for instance the independent enquiry into the conduct of Dyson Heydon while he was a judge on the High Court, where it was found that he repeatedly sexually harassed his associates. Against this toxic backdrop it is not surprising that many legal professionals choose to leave this industry. Not only is this costly for firms due to drops in retention rates but can be disappointing or costly for the individual, particularly one who has maintained integrity and been intrinsically motivated throughout their study and practice.

To assist law students, graduates, and junior lawyers in navigating this toxicity – though not engaging with it via their own conduct – we suggest that kindness and prosocial behaviour should be practiced. We suggest that lawyers and law students should ‘be like Elle’. What this looks like will now be explored.

Prosocial Behaviour: Legally Blonde

The Legally Blonde film highlights that through prosocial conduct Elle is able to achieve high standards and maintain integrity. She is successful in the courtroom, winning Brooke Wyndham’s case despite pressure to reveal her client’s alibi (against Brooke’s wishes) to score an easy win, and in the classroom, achieving valedictorian of Harvard Law. Though it was difficult to begin with, she avoids the toxicity of law school and the legal profession, ultimately finding reward and personal satisfaction. Prosocial behaviour does not make Elle a doormat, she is able to set clear boundaries and does not tolerate the poor behaviour of others – she stands up to Vivien’s ‘bullying’, which is prevalent in law schools, only using her peers’ tactics where it is necessary to deflect the humiliation. To shield herself from this she seeks out communities of safety, be that with Paulette at the beauty salon or other cast-out law students, like David.

Elle is clearly privileged, though not a traditional Harvard Law applicant – made clear when the admissions board state ‘aren’t we always looking for diversity?’ (although while the old white men of Harvard might think a rich white woman who is fashion focused is diversity, we can all agree that says more about the legal profession than Elle). The literature identifies that law schools are growing more diverse, in 2019 in the United States 31% of first year law students were culturally diverse, but the toxicity that continues to exist prevents many of these students from excelling, compared with their white counterparts who were better prepared for law school. Elle is shunned by her peers and professors when she is unprepared for her first class at Harvard, suggesting she is not as committed as the rest. Warner views her as a ‘Marilyn’ rather than the serious ‘Jackie’ he believes he needs to succeed and live up to family expectations. Elle is met with concern from her parents, who believe it is just for ‘people who are boring and ugly and serious’, echoing Warner’s words, and warned by the CULA Counsellor that Harvard Law is a top three school. These initial trials establish that Elle is extrinsically motivated to enter law school, as she seeks to win Warner back, though this changes to intrinsic once she realises that she will never be good enough for Warner (and discovers that he is in fact not good enough for her).

The film sets out that law school is competitive, described as a ‘blood bath’ and that there is little room for ‘self-doubt’. Professors encourage students to engage in this behaviour, with Professor Stromwell asking Vivien whether Elle should be removed from class, and Professor Callahan noting in the first lecture that there are only four internships at his firm. Her experience is not dissimilar to the lead author’s own, with her contract lecturer stating, rather offhand, that one-third of the students in the unit would fail. These comments place students in fierce competition with each other. During Brooke Wyndham’s defence for murder her classmates encourage Elle to give up the alibi in order for them to win the case, despite this betraying trust and direct instructions of their client, highlighting that the legal profession is just as caught up in winning. In the Australian context this would breach Regulation 8 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, though Warner is adamant that Elle needs to ‘think about’ herself. Vivien later informs Elle that she was impressed she held onto her integrity.

Elle is again forced to confront this toxicity, as a means to move forward in her career, when Professor Callahan, under the guise of being impressed with her legal analysis, invites her into his office and attempts to elicit sexual favours through his position of power. Though she rejects him, the conversation is overheard by Vivien, seemingly destroying the working relationship they had built up, and Elle’s reputation. Through Professor Stromwell stating ‘you’re not the girl I thought you were’, highlighting that Elle has more nerve and integrity than to quit over this, this convinces Elle to remain. Though Professor Stromwell engages in some of the toxic behaviour characterised in this article as she uses the Socratic method – ‘are you sure’ – to make him second-guess himself, her character ultimately shows that prosocial conduct from those in power does assist law students.

Throughout the films, Elle maintains integrity, even if her initial reason to apply to Harvard Law was extrinsically motivated by Warner. She stands out as she practices kindness though remains firm in her responses to assert boundaries, including when she rejects Professor Callahan’s sexual harassment and when she tells Warner that she is just as likely to earn the internship because they both got into Harvard Law. She values prosocial behaviours, along with community and the pursuit of justice, which this piece puts forth is important for career satisfaction.

Benefits of Prosocial Behaviour

Engaging in competitive and antisocial behaviours encouraged by law schools can propel some individual’s careers forward, particularly if they are white, from a high socio-economic background, and are heterosexual. It seems difficult to revolutionise the legal profession, though admittedly attitudes are changing slowly. In the meantime we encourage students and lawyers alike to practice kindness as the best way forward. There is a wealth of literature that there are many benefits to engaging in prosocial behaviour – including higher motivation, job satisfaction, and higher levels of cooperation resulting in more effective legal work. Nelken’s study shows that collaborative styles of negotiation, instead of the ‘traditional’ competitive styles, returns better results for all parties. Law schools reduce students’ willingness to compromise though ‘[training] effective negotiators’ requires compromise to serve the interests of students’ ‘future clients’.

Elle might benefit from engaging with the toxic behaviours shown throughout Legally Blonde, yet this would be detrimental to her integrity. She chooses to engage in consistent hard work and community building to succeed, which is supported by her CULA friends and eventually by her Harvard Law peers. At breaking point she is reminded of her own grit by Professor Stromwell, showing that within the legal profession there does exist prosocial conduct. This allows her and her peers to create an alternative reality that deflects and limits the toxicity that law school and the profession encourages and rewards.

An Alternate Reality in the Legal Profession

It is unlikely that the practice of kindness will radically change the legal profession. Students who love the law but not the practice, due to the toxic nature of the legal profession, may find safe spaces with likeminded practitioners when they graduate and choose to pursue a career in the legal profession. We hope this piece empowers law students, graduates, and others to maintain their integrity as they traverse their careers, as it is shows this leads to higher levels of job satisfaction.

A community focus also benefits clients and the general public – when lawyers focus on winning it creates fewer desirable outcomes for clients, particularly when clients have ongoing relationships with the other party. The legal profession is rapidly evolving and it is important that the characteristics and reputations of legal professionals change with it.