3 Spheres of Public Defense Well-Being: A Framework for Understanding Impacts and Obstacles, and for Responding with Appropriate Tools and Strategies

I’ve been thinking for a while about a useful framework for discussing well-being in public defense. I believe there are three spheres relevant to our well-being in public defense work: self, service and system. These three spheres provide a useful framework for understanding impacts, obstacles and challenges to sustaining well being, and also guide us in responding with appropriate tools and strategies

The Self sphere refers to the personal experiences we bring to this work and the personal practices we rely on to sustain us—things like mindfulness or gratitude journals. This circle also includes the ways we approach our work, like struggles with boundaries or work addiction. And it includes the basic self-maintenance like proper sleep, nutrition and exercise.

The Service sphere contains the impacts of this work. Public defense work has undeniable traumatic impacts that we must mitigate and process in order to stay in this work. It also includes public defense culture—the leadership, training, mentorship and support that impacts well-being.

The System sphere contains the larger systemic obstacles discourage us and wear us down when they get in the way of us providing the high quality and client centered representation that motivated us to do this work in the first place. System obstacles are things like high caseloads, racist systems, under resourced offices, and hostility toward the defense function from other system actors.

What public defenders need to sustain well-being are strategies in all three spheres.

(1) Individual strategies and practices to promote wellness and to mitigate inevitable impacts of trauma.

(2) Colleagues and leaders that build a culture that supports well-being.

(3) Systemic strategies to reduce obstacles to providing highest levels of representation.

It is essential to match the appropriate response and strategy to the obstacle or impact. It is common to shift the responsibility to the individual to fix everything with self-care. But systemic obstacles need systemic responses.

What do you think? Let me know if this framework feels useful to you. It’s one small piece of the A-Z Resource Guide I’ve been working on. A new update has been uploaded.

Some Thoughts on Public Defense, Data Entry and Moral Injury

I’ve been thinking about moral injury and data entry. This may not seem the sexiest topic during a pandemic, but during a pandemic is when many public defense offices are simultaneously rolling out or increasing data collection.

This focus on data also may be because I’ve just spent many weekend hours entering file notes and case data. I did not enjoy it. I resented that I was not spending my time meeting with clients or writing motions for upcoming trials.

Moral Injury, covered extensively at this site from doctors Wendy Dean and Simon Talbot, is a useful lens through which to view the movement to collect data in public defense. Moral injury looks at the impact on our well-being from systemic obstacles to meeting the needs of the people we represent.

Public defense offices are embracing data collection and championing it as a tool to secure additional resources, demonstrate inequities at all phases of cases, and quantify arguments that have previously been anecdotal. These are all goals worth pursuing and collecting empirical data may be a powerful tool in those efforts.

However, I have concerns about the way data is being collected in public defense and the toll it is taking on our well-being. The lens of moral injury invites these questions of leaders: is the action that is being taken making it easier or harder to do right by the people we represent? Is it increasing or decreasing obstacles to achieving the goal of providing high quality and client centered representation?

Leaders offer data as a tool to improve representation. However, in the day to day life of public defense staff doing the data entry, it is often experienced as an obstacle.

Onerous data collection tasks are often added to a workload with no discussion of how the time is to be re-allocated or re-prioritized. Directives to collect data sometimes roll out in emails worded like this: you are all now directed to collect the following 941 data points for each case, using the 443 drop down menus described in the accompanying 231 page technical guide, and to log this information into the case management system by the close of business on the day of the court appearance. I now spend 25 minutes logging data points for a 5 minute court appearance.

The ABA’s Well-Being Toolkit includes in its definition of a healthy workplace that tasks and responsibilities can be accomplished successfully within the time available. (Well-Being Toolkit For Lawyers and Legal Employers, by Anne Brafford for the American Bar Association, August 2018, at p. 9.) In most public defense assignments, this is laughable. We are continually triaging essential tasks like communicating with the people we represent, completing investigation and legal research for their cases, consulting with experts on everything from complex DNA analysis to immigration consequences of a charge or conviction, coordinating with advocates and other county agencies to address housing, mental health and substance use treatment needs. We work long hours into the evening and weekends and still don’t complete important tasks. There is never enough time.

Public defenders do not have “spare time.” When a time-consuming task such as data entry is added, something else must give. The two most likely responses are: (1) sacrifice non-work hours in the evening and weekend, instead of spending that time with loved ones and/or engaging in activities of rest, recreation and resilience building; or (2) displace other tasks, which then fill lists to be completed later or not completed at all– such as client communications, motions and investigation.

This is experienced as a negative impact on well-being, both by forcing work into non-work time and by de-prioritizing direct client service in favor of data entry. This obstacle to the goal of providing direct client service –at a high level and in a client-centered way– is experienced as moral injury, the betrayal of our motivating purpose for becoming and remaining public defenders.

If we are to embrace data as a tool, aren’t there better collection models? Can’t we be creative in finding resources to add staff at the onerous collection stages at the front end, not just in using the collected data to advocate for more resources in the future? Can certain data be collected for a period of weeks, or must we live with the constant adding of new toggles and drop down menus to data entry checklists that grow so long it seems farcical? How can this new category of work be thoughtfully allocated? Integrated into staff workflow in a way that still respects autonomy to prioritize tasks?

Each time onerous data tasks are added, there has to be discussion of how this impacts other task priorities. The discussion needs to include the cost of reducing basic human communication and collaboration. The shift from anecdotal to data can feel like a shift away from listening and being heard. The people we represent feel it when we look away from them to navigate drop down menus on computer screens. Requiring simultaneous data collection conflicts with best practices of building trust through eye contact and periods of listening without note taking.

Similarly, public defense staff members feel unheard if they describe their actual human experience and are told by leaders that the experience isn’t valid until supported with data. The tool of data cannot replace the listening, anecdotal storytelling, and empathy that are central to public defense at all levels.

I would love to hear examples of places in which data collection has been rolled out smoothly, welcomed by those doing the collection, and recognized as a valuable tool rather than an obstacle to providing high quality representation. I hope you’ll post and reply with your success stories, so that we can all learn how to better use data collection as a tool, rather than experience it as an obstacle to our work and a negative impact on our well-being.

RBG: May Her Memory Be A Revolution

Though the news cycle has moved on, today to the hearings to confirm the nominee to replace her, I am still thinking about RBG. I am grateful that she was there as a beacon for four generations of feminists. I’m grateful to her for opening doors that I walked through.

I decided to go to law school—solely to be a public defender– during the summer of 1991, my interest sparked by working as a student investigator at the Public Defender Service in DC. Before that, I’d made fun of friends headed for law school the same way I’d made fun of the people saying I should spend my time at Cornell pursuing an M-R-S degree. My senior year of college was spent applying to law school during the hearings at which Anita Hill was treated horribly, Clarence Thomas horrifically replaced Thurgood Marshall, and everything about SCOTUS, politics and the legal profession was demeaned. I was ambivalent enough about law school to defer going for a year.

August 1993, the month I ultimately did start law school, was the same month that the Senate confirmed RBG to join the Supreme Court. During my first year, she spoke on campus at Celebration 40, an event [unironically] celebrating that the law school had been admitting women for [only?!] 40 years. RBG talked about the hostility toward her as one of nine women in a class of 400 in 1956, and of being unable to find a job after graduation. “I struck out on three grounds,” she said. “I was Jewish, a woman, and a mother. The first raised one eyebrow; the second, two; the third made me indubitably inadmissible.”

As a student a few months into experiencing male law professors leading discussions dominated by overconfident male law students, it’s hard to overstate the impact of hearing her speak candidly about the challenges she’d overcome along the path to SCOTUS (where she noted that the Court had just that week renovated the robing room to install a women’s restroom equal in size to the men’s).

She graciously tolerated that a small group of us women ILs followed her around like ducklings during that fall day in 1993, from building to building, peppering her with questions while stumbling over our own words. She was a tiny, witty, warm, encouraging, piercingly smart, warrior. Every one of us weird little ducklings got a glimpse of how she had brilliantly blazed a trail that created opportunity for us.

I was lucky to see her speak at other law school events over the years. She was always impeccably composed and charismatic. I’d listen and wonder if she’d ever wanted to scream burn it down and stopped herself, instead relying on that piercing confidence that she would outwork and outsmart and out strategize everyone.

Her focus on women’s rights was a strength, and perhaps sometimes a weakness. Her strategy was brilliant and effective over time. And she is rightly criticized for a mixed record in other areas, and for her failure to hire people of color as clerks. I think of this sometimes when I question dedicating so much of my own life to the rights of the indigent accused, all the while not marching as much as I would like for other crucial issues like climate change or racial justice. Sometimes this prioritizing disappoints me; sometimes I remember that persistence and focus over time produces results. These are not easy decisions, choosing a cause to which to dedicate your one wild and precious life.

In 2010, I was one of 30,000 people in the audience at Maria Shriver’s Women’s Conference in Long Beach, when Diane Sawyer interviewed Sandra Day O’Connor and Ruth Bader Ginsberg together, and this happened:

“I’ve got to tell you, I went to the Supreme Court recently… I sat in on an argument, and I looked up at the bench on which I sat for 25 years, and what did I see?” O’Connor said. “I saw on the far right, a woman. On the far left side, a woman. And here in the middle, a woman. And it was dazzling.”

“It’s the first time the public can see we’re really there. Really there to stay,” Ginsburg said.

“How many women would be enough?” Sawyer asked.

“Nine,” Ginsburg replied with a smile. “There’ve been nine men there for a long time, right? So why not nine women?”

The roar of the crowd was deafening. At that time, my daughter was four, and I was in a trial assignment that made for an impossible juggle of long murder trials and birthday parties at which I’d failed to procure some requested necessity like pink princess burritos. Barely 90 pounds of the SCOTUS rock star RBG, smiling on a stage far away in a stadium, reminded me that this is the juggle we do. Dig in and handle it, be grateful for having the opportunity so many weren’t given, try to grow the opportunity even more for the next generation.

In June of 2017, I was sworn in at SCOTUS. As we watched the arguments in the morning before the swearing in, I kept thinking there are THREE women up there asking questions. I hoped that my daughter seeing three women on the court seemed normal, the only way she’d ever seen it, prompting only the question but why not more? I hoped that meeting RBG had the impact of making seemingly impossible things feel a little more within reach. At the reception, I asked RGB if she still thought nine was the right number of women on the Court, and she gave that coy smile and said yes, and we needed to pick up the pace.

It was ridiculous to think a person aged 87, who fought cancer five times over three decades, might live forever. Yet it still seems a little stunning that she didn’t pull it off by out strategizing death or sheer force of will.

May her memory be a revolution.

Put Your Body on The Gears

Mario SavioOn December 2, 1964, Mario Savio gave his famous “Bodies on the Gears” speech on the steps of Sproul Hall at UC Berkeley. It was during the Free Speech Movement. In protest of the university’s ban on political activity, Savio spoke these words:

“There’s a time when the operation of the machine becomes so odious, makes you so sick at heart, that you can’t take part! You can’t even passively take part! And you’ve got to put your bodies upon the gears and upon the wheels…upon the levers, upon all the apparatus, and you’ve got to make it stop! And you’ve got to indicate to the people who run it, to the people who own it, that unless you’re free, the machine will be prevented from working at all!”

I’ve always loved this speech. A weathered and coffee-stained clipping of these lines has been pinned to the bulletin boards of dozens of assigned cubicles and offices where I have worked as a public defender. The counterculture community that raised me, on the remote Lost Coast of Northern California, grew out of the participation of my parents and their peers in this 60s Berkeley political activism.

Put your body on the gears resonates with so much about public defense. Free human beings will not be pushed around by the machine, will not be the raw materials for the prison-industrial complex, will not be abused by the criminal punishment bureaucracy.

It’s what we do in public defense, we put our bodies on the gears of the machine. We think to ourselves, you’ve got to go through me to cage this human, to convict this person, to sentence this community member.

Often we do it at the expense of our own well-being. We sacrifice our sleep and family time to long hours, incredible stress, impacts of trauma and moral injury. In the best of circumstances, sustaining well-being is a challenge in public defense. These are not the best of circumstances.

The machine has found new gears in this Covid19 era. There are new levers of abuse in the form of jail conditions ripe for an outbreak, and a whole new apparatus of closed courts that refuse to release people from unhealthy jails.

There is a new conversation about health and public defense. Do we fight to go into the jails for contact visits that may cause this virus to spread? Are we IMG_3615endangering people more than we are helping them? Do we continue to appear in empty courtrooms, standing next to the people we represent, even as judges and prosecutors and witnesses appear on zoomed in computer screens from the safety of their homes? What does it say about these machines that they see us and our clients as unworthy of personal protective equipment or procedures that ensure social distancing? The plans and strategies to protect public health do not include the people we represent.

I hear many public defense leaders grappling with questions of advocacy and safety. Should each public defender choose whether to do jail visits? Whether to work remotely or come to court or the office? Whether to agree to remote hearings or demand live hearings? Whether to meet in person with witnesses and family members?

My biggest fear in these conversations is that the questions will be framed to position public defender health as conflicting with client centered representation. These two things should always be on the same side. We have to care for our well-being to be able to fight for our clients. We have to maintain our health in order to fight what is shaping up to be a very long fight to free people from jail and to regain access to courts that are now closed.

We’ve got to keep our bodies and minds as healthy as we can if we’re going to keep putting our bodies on the gears of this machine.

Remote Work Strategies in Public Defense

Like many of you, I am suddenly working remotely a large portion of the time. I didn’t choose it and I don’t much like it. I’m on zoom instead of in court, on zoom instead of at live staff meetings, on zoom instead of brainstorming cases in the halls with colleagues. It’s hard to keep any home/life boundaries for my time or in my house.

Luckily, many people who are more skilled and experienced in remote work have flooded my inbox with suggestions and webinar invites. Now I can be on zoom learning how to be on zoom. Perfect.

It’s actually pretty helpful. The suggestions below are compiled from several articles and webinars I have found particularly helpful. Please comment with your feedback and suggestions as we navigate remote work together.

Strategies for remote team management

  1. Goal: build trust and commitment to shared mission.
  2. Tie everything to mission/vision.
  3. Use mission/vision to prioritize.
  4. Communicate about expectations: communication channels, platform, core work hours, and response times.
  5. Be an inclusive leader—watch for people who become disengaged; make people feel included, feel useful, feel needed, feel valued; develop processes for everyone to be heard; set expectations (ex: show face in meetings). Create opportunities for all voices to be heard. Acknowledge contributions (across job categories, large and small).
  6. Accept that there are new challenges to building trust and rapport. Model good communication (respectful, not interrupting); address problematic communication in team members directly and promptly.
  7. Communicate with curiosity (about new schedules, family/circumstances). Spend more time asking and learning, because we’re not psychic and we don’t know if we don’t ask.
  8. Create a variety of communication channels, some for more informal interaction that is lost in passing the halls, talking at the water cooler, etc. Break down social distance. Examples: start the meeting with sharing on a topic or showing a photo with a specific prompt, schedule virtual coffee break or virtual happy hour.
  9. Asynchronistic v synchronistic tools. Choose the right tool: updates vs. brainstorms. Save meetings for brainstorms and collaboration, not “updates” that can be sent out consistently.
  10. Sufficient communication will feel like over-communication: narration of goals, status, how each action ties to mission/vision.
  11. Model self-care: use schedule/routine, take breaks, build community. Be willing to say: these are my non-work hours so only send urgent communications and I can’t have a meeting during that time because I’m going for a run.
  12. Be transparent about (some) obstacles and vulnerability. (The dog might bark, the baby might wake up, the task did not get completed for __ reason, I have __ individual challenge/circumstance right now.)
  13. Reach out often for 1:1 check in (5-15 min) and to offer support: How are you? How are you feeling about your work this week? What are you excited/apprehensive about? Is there anything you need? What are you finding the most challenging? How can we help?
  14. Develop channels for honest feedback: what could we be doing better right now?

Challenges for Managers

  1. Be very clear about tasks, timelines and what is “success.”
  2. Be deliberate in choices and priorities: Only make promises you can keep, keep promises, be transparent about changes and updates.
  3. Remote management is very taxing to managers. It requires very frequent, consistent and clear communication. Agile teams have frequent updates, check-ins (task management, do you have what you need?), follow up and follow through on projects and timelines.
  4. Find the right shared document tool and project management tool: slack, basecamp, etc. Using email only becomes very unwieldy. Communicate clearly about expectations and tools to use.
  5. Avoid “micromanaging.” Focus on impact, results, benchmarks and project timelines, not things like time tracking.
  6. Make sure that work feels evenly distributed across teams.
  7. Signs of trouble: negative communication, side conversation, excessive jokes/sarcasm, drift from topic/mission, expressions of distrust of accuracy/reliability/transparency/commitment to values.
  8. Silence = red flag. Management responsibility to determine if conflict, task-related, disengaged.
  9. Group maturation cycle: Forming, Storming, Norming, Performing.

Logistics of Remote Meetings

  1. Designate a timekeeper and a note-taker.
  2. Have a note-taker to distribute summary after meeting. Have a clear system to distribute notes and document decision making.
  3. Have the right people at each meeting, so people don’t feel their time is wasted.
  4. Set an agenda, send it out in advance, use it.
  5. Empower people to suggest agenda topics.
  6. Be clear about what is an update and what is a collaborative discussion.
  7. Be consistent with meeting times, establish and commit to a schedule, keep to time limits, avoid last minute changes.
  8. Prep with presenters, so they are clear on topic, time limits, and have content prepared to share efficiently.
  9. Ensure that everyone is visible: helps with community, connection, eye-contact, less interrupting. (Set expectation that no once cares about the laundry in the background.)
  10. Have clear expectations around muting and background noise.
  11. Keep the team focused: built clear expectations to avoid side conversations.

Systemic: Tools and Training needs

  1. Infrastructure: high-speed internet, microphone, camera.
  2. Training in platforms and technology.
  3. Assistance with work spaces, ergonomic set ups.

Individual Challenges

  1. Establishing work/home boundaries: space, time.
  2. Negotiate shared spaces in household: work hours, noise,
  3. Manage communications: phone forward, out of office message tools, hours for normal and urgent communications.
  4. Maintain a routine-“coming to work” time in the morning.
  5. Separate spaces/tasks—can you close a door or clear a workspace at “quitting time.”

Strategies for everyone

  1. Assume good intentions of others—misperception/miscommunication is easy without in person time.
  2. Approach communications with more curiosity than judgment.
  3. Address challenges/misunderstanding as early as possible.

COVID-19 Specific Challenges

  1. Adjust productivity expectations. Stress/anxiety/circumstance has real impact on productivity and engagement right now. It is a constant distraction.
  2. Check-ins with people.

Comment with your feedback and suggestions for effective remote work as a public defender.