“Calamitous” Effect Of Chevron Deference Ruling? What’s Next!

Episode Notes

Transcript

Dave Scriven-Young.:

Hello everyone and welcome to Litigation Radio. I’m your host, Dave Scriven-Young. I’m a commercial and environmental litigator in the Chicago office of Peckar and Abramson, which is recognized as the largest law firm serving the construction industry with 115 lawyers and 11 offices around the us. On the show, we talk to the country’s top litigators and judges to discover best practices in developing our careers, winning cases, getting more clients, and building a sustainable practice. Please be sure to subscribe to the podcast on your favorite podcasting app to make sure that you’re getting updated with future episodes. This podcast is brought to you by the litigation section of the American Bar Association. It’s where I make my home in the A BA. The litigation section provides litigators of all practice areas, the resources we need to be successful advocates for our clients. Learn more at ambar.org/litigation.

On today’s episode, we’ll discuss two recent Supreme Court decisions that substantially altered how courts set the limits of federal agency actions. The alphabet soup of federal and state governmental administrative agencies as part of the lexicon of average Americans and the administrative state has long history. In fact, Congress created the first modern regulatory agency, the Interstate Commerce Commission in 1887, and the time that followed many other agencies were created to regulate other areas of activity. And our guest today will help us look back at how the federal courts have treated regulatory agency actions and will analyze the recent Supreme Court cases on these issues. So my first guest today is Professor Gwendolyn Savitz. She is an associate professor at the University of Tulsa College of Law. She specializes in administrative law and has written extensively on the administrative state targeting both adjudication and rulemaking, as well as direct applications in the military. Her impressive background includes bachelor’s degrees in genetics and chemistry from Dartmouth, a JD from American University Washington College of Law, and an LLM from Yale Law School. Professor Savitz, thanks for being on the show today. Thanks.

Gwendolyn Savitz:

I’m excited to talk about this.

Dave Scriven-Young.:

So my second guess is Paul Weiland. He’s an assisted managing partner and a member of the environment and land use group at Naman LLP in Orange County, California. He has represented clients in high profile precedent setting, environmental permitting, regulatory and litigation matters throughout California and across the nation. Prior to joining the firm, Paul worked in the law and policy section, environmental and Natural Resources division of the US Department of Justice. There he was lead counsel for the United States in a number of high profile trial and appellate cases. Welcome to the show, Paul.

Paul Weiland:

Thanks, Dave. Happy to be here.

Dave Scriven-Young.:

Paul, let’s bring some context to this discussion. We all know that there are various regulatory agencies out there, but give us some history on how the regulatory state has come into being.

Paul Weiland:

Alright, Dave. Well, any student of history would tell you that that’s a result of many events and trends over time. But the modern regulatory state in the United States really emerged during the New Deal and it was a response in large part to laissez-faire policies that had contributed to the Great Depression. It was perceived as necessary to address market failures that had occurred and led to the Great Depression. It really characterized by three big factors as I see it. One was an explosion of federal government programs to provide jobs and stimulate the economy. So among these was the Works Progress administration and the Farm Security Administration. There were a host of others. Those two in particular were focused on both public works and public buildings construction, and then the Farm Security Administration on combating rural poverty and supporting farmers. A second characteristic of the regulatory state that emerged was new legislation during that period of time.

So just a couple of these pieces of legislation that were passed that were a landmark legislation at the time were the Securities Act of 1933 and the Securities Exchange Act of 1934, and also labor laws including the Fair Labor Standards Act of 1938, which prohibited unfair labor practices and set a national minimum wage. A third characteristic of the emerging regulatory state was the reorganization of the executive branch, and this was a complimentary predecessor to the modern administrative state and the Administrative Procedure Act and the BROWNLOW committee report, which was authored by a group of political scientists actually, and provided the basis for the reorganization of both the executive office of the president and the executive branch in a way that could service the modern society and modern administrative state. There were some antecedents of this that are noteworthy as well. In the earliest 20th century, certainly Woodrow Wilson’s scholarship contributed to a body of work that had envisioned a professional public administration and the growth of the administrative state. For example, on the legislative side, there were labor laws in the early 20th century that prohibited child labor and provided the right to organize that were the predecessor to the fair labor standards fact that I mentioned earlier.

Dave Scriven-Young.:

And in your practice area in particular environmental law, there’s actually several different types of agencies that oversee energy environment, et cetera. And also there can be state EPAs in addition to the federal EPA. Can you talk a little bit about that interplay and then also kind of the statutory basis, for example, of how an agency like the EPA might work?

Paul Weiland:

Sure. The modern environmental regulatory regime really came about in the 1960s and 1970s. There was kind of a remarkable period of, that started on January 1st, 1970 when President Nixon at the time signed into affect the National Environmental Policy Act and included the Clean Air Act, the Clean Water Act laws regulating wildlife, federal lands, including Bureau of Land Management and Forest Service lands, toxic substances, pesticides, and rounding it out at the end of that decade in 1980 was the so-called Superfund Law. And so that period of legislative activity was also complimented by growth of administrative agencies. In 1970, the EPA was established during a reorganization of the executive branch and it aggregated programs from some other agencies and created some new programs. And on the federal land management side with the passage of the Endangered Species Act, both the Fish and Wildlife Service at the Department of Interior and the National Main Fishery Service at the Department of Commerce started to regulate in the area federal wildlife law much more actively than had been done previously.

Although there were some federal wildlife laws dating back to the early 20th century, such as a migratory Bird Treaty act, these agencies at the time were envisioned as and laws as a response to environmental problems in a way that probably looking back with somewhat naive, the idea was that we could take swift and concrete and substantial steps and resolve those problems. So for example, the Clean Water Act of 1972 had set a goal of swimable fishable drinkable water across the country within a short period of time. And so most of these laws were quite ambitious and I think there were high hopes at the time that we would see substantial progress, and we did see substantial progress, but we found that there was much work to be done, particularly as the agencies addressed the low hanging fruit and then had to deal with more pernicious problems.

Dave Scriven-Young.:

And of course, the work of those agencies continue to this day. And Professor Sabots, bringing you back into the conversation, since you are kind of our resident expert on administrative law and you teach in the area, there’s another statute that’s important to give us context here, which is the Administrative Procedure Act. So tell us a little bit about how that statute works and how that interplays with what courts have to say about administrative decisions and actions.

Gwendolyn Savitz:

So the A PA is essentially the underlying law for how agencies can do the actions they want to do. So it’s the broad law that applies everywhere. When I teach administrative law, that’s what I’m teaching, trying to explain what the rules are that all the agencies need to follow. So it was a response in part to the rise of the administrative state, but it was not necessarily intended to dramatically change stuff that was going. So there’s a couple cases that came up two years before the A PA was passed. So the A PA was passed in 1946 and in 1944 we had Skidmore and N-L-R-B-V Hearst. So Skidmore will definitely matter later on. And Skidmore, the relevant agency didn’t have rulemaking authority, so they were supposed to investigate labor practices and bring action if they thought that an employer was violating them, but they were bringing it through the court.

They weren’t creating regulations. The way we generally think of agencies is creating law now in that the court said that they needed to give the agencies respect according to the level of deference. I’m sure we’ll get back to Skidmore, but there was another case that exact same year with an agency that did have rulemaking authority. And in that one, the court said that we need to defer to the agency if it decisions have a warrant in the record and a reasonable basis in law. So the a a has a judicial review provision and that talks some about how we review law and some about how we review fact, but everything is kind of muddled together. So the relevant part is that it says the court can hold unlawful and set aside agency actions, findings, and conclusions found to be arbitrary, capricious and abusive discretion or otherwise not in accordance with law. So when a court is reviewing agency action, that’s theoretically the standard that it’s reviewing it under the A PA itself though didn’t have a separate statute of limitations. So traditionally we’ve just worked off the normal federal statute of limitations for six years for most actions, which meant that when agencies passed regulations, you had six years to do sort of a facial challenge to the regulation. And that would often be done by an industry group. Once that six year time period had passed, things were kind of settled.

Dave Scriven-Young.:

Got it. And so can you give us an example of an agency challenge by an industry group, just so our listeners understand the scope of what we might be talking about. So just give us one example kind of in maybe a Supreme Court case or something like that just kind of gives us a sense of what might be challenged, for example.

Gwendolyn Savitz:

Well, so a recent one when they were challenging abortion medication, part of the case was thrown out because they were challenging an agency approval that had occurred. I don’t remember if it was one decade, two decades ago. It was quite a while. And so that was just no longer up for challenge. There were others that had occurred in a more recent time period. And so then they were looking at whether or not there was standing, which there eventually was not according to the Supreme Court, but some of that was just not even able to be brought because the statute of limitations had passed.

Dave Scriven-Young.:

Okay. So one of the issues that was before the Supreme Court and during this term was a case involving whether or not a court should give deference to an administrative action. And so Paul, let’s bring you back in. Let’s give us some context on the Chevron case, which talks about deference and the administrative state. Tell us a little bit about how that case came about in 1984.

Paul Weiland:

Sure. So Chevron versus Natural Resources defense counsel was a Clean Air Act case and as you mentioned it decided in 1984, the regulation that was challenged in the case was an EPA regulation that formalized the agency’s interpretation of the term statutory source under the Clean Air Act. And it reflected EPAs codification of in that regulation of the so-called bubble policy. And the concept of the bubble policy is that when EPA is regulating the emissions from a facility, it could choose to regulate either individual smokestacks for example, or it could look at the entire facility and treat that as a bubble. What EPA did in this regulation was adopt interpretation of the term stationary source that incorporated the entirety of the facility rather than a smoke stack by smoke stack approach. The positive of this from the point of view of regulated parties is it allows those parties to reduce emissions on a leased cost basis.

So for example, if it’s more beneficial from an efficiency standpoint to heavily reduce emissions from one point in that facility and leave emissions at the same level at another point, as long as they’ve met the overall facility goal, the regulated entity would be able to proceed in that manner. On the other hand, if it was more beneficial to regulate each smokestack to the same degree, they would have the flexibility to take that approach. This was the regulation that was challenged by the Natural Resources Defense Council, and in particular this regulation was dealing with what are called non-attainment areas. So these are areas where the geographic region isn’t in attainment with EPA standards with regard to certain pollutants. And so there are areas that the air quality is already degraded to some degree, which is why NRDC was concerned and pursued this challenge to the regulations.

Dave Scriven-Young.:

Which by the way, and let me just cut in what you just described, is exactly what the reason I think for the administrative state and for these administrative agencies is that you have a very specific, maybe someone would call esoteric area of the law that is very important air quality and the agency, because they have scientists and engineers and attorneys and all sorts of people that really focus in on this specific issue. They are supposedly or they are the experts in the subject. And so that’s why these agencies are created. And so Chevron had something to say about why it’s important to have that expert determination, correct,

Paul Weiland:

Exactly. So the NRDC brought their case as an initial matter in the DC circuit, and that court actually invalidated the regulation and the court held that the language of the statute wasn’t clear and the legislative history wasn’t clear. But when they looked to the purpose of the act and they looked at the fact that they were focused on a non-attainment area and the non-attainment program, which is intended to improve air quality in those areas, that EPAs interpretation allowing for facilities to be treated as a bubble was incorrect as a matter of law that NRDC then pursued that challenge in the Supreme Court and the court established a two step test in overturning the DC circuit’s decision. And the first step is whether the statute is clear or ambiguous, and if it’s clear, then that’s the end of the matter. But if the statute’s ambiguous, then you move to step two of the Chevron test and that step looks at whether the agency’s interpretation is based on a permissible construction of the statute. So from the reviewing court’s perspective, even if it might come to an alternative conclusion or think that there was a better interpretation, as long as the agency’s interpretation is permissible under Chevron step two, the agency gets deference for the reasons you mentioned, Dave, given the court’s view of the agency’s expertise in administering its own statutes.

Dave Scriven-Young.:

So Chevron’s really important case and then 40 years later we have two Supreme Court cases that come out during this term. And then I wanted to talk to both of you about, one is Loper Bright Enterprises versus Raimondo, the other one is Corner Post versus Board of Governors. Paul, can you talk about Loper Bright, what happened in that case?

Paul Weiland:

Yes. The Loper Bright case was a challenge to a national marine fishery service regulations that were implementing the Magnuson Stevens Act, which is an act that regulates federal fisheries along both coast of the United States. And the particular challenge was to a regulation that imposed a requirement on fishermen to pay for observers to be on their boats in the herring fishery. And those observers were there in order to monitor compliance essentially and gather data under the ACT and the regulations. The Magnuson Stevens Act was enacted 1976 and it established fishery management councils and these councils established fishery management plans that the national main fishery service approves and implements. And these plans are implemented by the National Main Fishery service through regulatory action through rulemaking. The Magnuson Stevens Act itself actually requires fishermen to pay for observers to be on their boats in certain circumstances. For example, owners of foreign vessels have to pay for observers, and that’s written into the statute.

On the other hand, with respect to the herring fishery and domestic vessels, the act itself was silent. And in 2020, the National Main Fishery service adopted a regulation or promulgated a regulation requiring observers to be paid for by fishermen. Previous to that time in the herring fishery, the National Main Fishery service had paid for observers. And so that teed up the challenge in this circumstance. And in the DC circuit, the court actually applied Chevron and got to step two, held that the statute was ambiguous, and then at step two determined that the national main fishery service interpretation was permissible. And in the Supreme Court, the courts expressly overturned the Chevron in a fairly sweeping decision. The court wasn’t particularly fact bound at all, frankly, in making its holding. And the concurrences and dissents also recognize this and we’re really focused largely on the Chevron doctrine and the rationale for that doctrine rather than the particular facts of the case.

As an aside, I would say that given that the statute expressly required observers be paid for in some circumstances but not in others, it wasn’t the strongest case for regulatory activity by National Main Fishery service. And given that national main fishery service had in the past paid for observers and then changed its approach, certainly the court could have came to its conclusion that the regulation was invalid on the basis of either Chevron step one or Chevron step two without revisiting the Chevron case itself. But the court was anxious to get there and went to Paynes to argue or conclude since there was Supreme Court that the Administrative Procedure Act itself clarifies that matters of law are within the province of the courts rather than the agencies. And so while the agencies assessment will be given due consideration, they won’t be given deference and the court’s job is to interpret the law.

Dave Scriven-Young.:

And how did the court deal with the fact that 40 years of precedent basically apply, Chevron is in lower courts have been bound by it, how did they get around Chevron or suggest that it was no longer invalid for some reason?

Paul Weiland:

Well, Chevron itself didn’t really focus on the language and the a PA that the court focused on my reading of the court’s decision is that Starry Decisis didn’t apply because they looked at a certain period of time. And the court has done this in other cases as well where the last 40 years, certainly if you were looking at it, you would say there’s been continuity and consistent application of this doctrine. But if you go back further the history of the A PA as the court did, it said no, we are appropriately revisiting this in light of the clear language of the Administrative Procedure Act and the structure of the ACT and the Constitution itself. And the two concurrences by Justices Thomas and Gorsuch actually interpreted this as a constitutional issue rather than a statutory issue. And really on the basis of separation of powers, chief Justice Roberts didn’t go that far, but certainly we’ll have to see the extent to which the court heads in that direction.

Dave Scriven-Young.:

Sure. And then Professor tz, we had another case that came down within this term talking about the six year statute of limitations for challenges to agency actions, that Corner post case. Can you tell us a little bit about how that went?

Gwendolyn Savitz:

That is really important because these two build on each other to create a essentially completely open season on the administrative state. So that six year statute of limitations that had just been universally accepted across the country, the one exception had been the sixth Circuit in 2015, who went kind of the way the Supreme Court ended up going. But Corner Post itself, we have a convenience store that started in about 2017. They are concerned about the fees that they need to pay based on a federal regulation. And that regulation says that the interchange fees for debit cards are going to be 21 cents plus a tiny fraction of the transaction itself. So that regulation had been finalized in July, 2011 and almost immediately it was challenged by industry representatives, which is the way these generally go. When that went up to the DC circuit, the DC circuit found that the statute was ambiguous, that the agency interpretation was basically reasonable.

They remanded it to the agency to clear couple things, but essentially left it untouched. So Corner Post tried to challenge it again, and typically you could challenge these regulations later on, but only if they were applied against you, you couldn’t do this broad facial challenge that Corner Post was trying to bring. But Corner Post did and the court said that we’re going to rethink how this applies and it’ll actually apply from the time that the individual plaintiff is affected by the regulation. So that means if the individual plaintiff is brought into existence, say right now because somebody decides to start a business in Texas, they can challenge whatever they want to. And when that is reviewed, it will be reviewed without Chevron deference. So the court in Loper Bright was trying to not completely upend every case that had already been decided. So they said that you can’t argue a case was previously wrongly decided just because it was decided under Chevron, which we don’t agree to anymore.

Those are still good precedent. But the thing is, the vast majority of Chevron cases that have been decided have been decided at most the circuit level, the Supreme Court has only done a tiny fraction of them. So those might still be good law in that circuit, but they’re not necessarily going to be good law across the rest of the country. So what Loper Bright said was essentially every statute, every regulation from now on, you have free reign on that forever. And what Corner Post said is, and you can go back to every regulation you don’t like almost everyone, if it has its own statute of limitations, it might be different, but virtually none of them do. So as long as you can find an entity that has been affected most recently or create an entity that is now affected, you can challenge these regulations in new, it is really just a completely wide open door

Dave Scriven-Young.:

Basically that can go back from the beginning of the administrative state. So any regulation that was promulgated back in the day, and if you create a new organization or company that’s affected, you can challenge any one of those regulations

Gwendolyn Savitz:

Basically. Yes.

Dave Scriven-Young.:

Wow, okay. Where do you see this going, professor? I mean, I know this is going to dramatically affect the way that you teach administrative law to your students. Where do you see this going in terms of how agency actions are going to be, I guess challenged in the future?

Gwendolyn Savitz:

It is impossible to overstate what a complete wreck this is going to make of everything. I spent probably half my semester just talking about Chevron and the implications of Chevron when I taught admin. So it is just like the bedrock, cornerstone of administrative law and that’s now been yanked out. So everybody I’ve talked to in any sort of industry is absolutely chomping at the bit to go after all the things that they didn’t like before because again, they can’t challenge it if a circuit court in that circuit already said that the statute already deferred to the agency, but there’s lots of other circuits. So things are really wide open. There will be a lot of litigation and honestly, I don’t see how this is sustainable. I think there’s probably not a lot Congress can do because yes, in Loper Bright they were specifically talking about the language of the A PA, but I think this is really a separation of powers concerns that’s underlying it.

So even if Congress passed a statute saying, from now on we want you to give Chevron deference to everything that you would’ve given Chevron deference to, I think they would just strike that down as a violation of the separation of powers. But I do think this will be unworkable. So what seems most probable to me is that just like the court started to walk back the most extreme versions of the gun regulations, it can start trying to walk this back some and say that a lot of the details in these regulations that agencies are promulgating, that those are legislative facts rather than legal determinations. So we’ve already established that if it’s a question of law, it’s not getting any deference. That’s what Chevron previously allowed. But questions of fact agencies still get a lot of deference on that. So if they start reclassifying a lot of these lower level decisions that most people actually are okay with, they’re okay with the EPA doing all of these really, really detailed nuanced things. They Congress cannot functionally do that, that they can still act like they’re upholding precedent while making this into a more workable system. They’re definitely not there now though.

Dave Scriven-Young.:

What do you think about possibly amending the Administrative Procedure Act? I mean, that seemed to be kind of the key issue in Loper Bright.

Gwendolyn Savitz:

I think that’s what I was saying. If Congress passed a Chevron statute, that could be an amendment to the A PA. The a P is just a statute, they could say we’re now amending this to require Chevron deference. And I think that the court would strike that down. There were a few different concerns underlined Looper Wright. So one of them was this concern that Congress was just delegating these vast areas of authority to the agencies that they were saying, do whatever you want. That Congress would intentionally decide on ambiguous terms, hoping that the agency would side their way later in order to be able to pass legislation. But that meant that they hadn’t actually agreed on anything. So in that case, they would want Congress to be forced to actually agree, allowing Chevron to come back in is going to frustrate that. But they were also clear that it’s okay for Congress to delegate very, very, very narrow decisions. We want you to regulate this one particular area and that involves this one term, and we want you to define this one term that is going to be okay. But the thing is that statutes are so ambiguous in so many ways. You can’t know that ahead of time. They’ll never be able to foresee all the ambiguity. So they won’t be able to explicitly delegate every single ambiguity to the agencies. But if they do these blanket statements, then they’re coming into the separation of powers concerns again.

Dave Scriven-Young.:

Got it. Paul, give me your thoughts about these cases and what they might mean for the future of the administrative state.

Paul Weiland:

Well, for starters, I would say that Chevron’s a big deal, and it’s reversals a big deal. But in the context of challenges to administrative actions of the federal government, the cards are still stacked in favor of the Fed’s by and large. And there’s a couple of reasons for that. One is the standard in the administrative procedure Act itself for judicial review that Gwen mentioned earlier. Another is as the chief justice pointed out, in his majority opinion, at least for now, this could change, but the courts are giving on fact finding. And as Gwen mentioned, the courts are giving deference and there are lines of cases including Supreme Court precedent on the ability of agencies or the appropriateness of judicial review of agencies being very deferential in the context of highly technical determinations by those agencies. And then the other thing is that agencies prepare the records for their challenge actions and that can have an influence on the outcome.

And oftentimes in the litigation I’m involved in, there’s a lot of fighting over the record preparation itself and what’s in and what’s out because that has such an influence. But the agency gets the first opportunity there and is subject to a presumption of regularity and preparing the record. And so there are several ways in which the agencies still get the benefit of the doubt during the process. That all said, it’s clear that the court is taking on the administrative state and their work isn’t done. And so things could change in ways that are even more dramatic. The other thing I would say is as a practical matter, I don’t think there’s a chance that this congress or future congresses in the near term are likely to try and amend the A PA in a way that could actually pass or would have any hope of passing.

And one of the reasons we are in this conundrum, at least in the area that I practice in environmental law, is all the environmental statutes were enacted in the seventies with the thought that they would be reauthorized on a basis by a function in Congress. And the fact that Congress has been incapable of legislating and updating legislation has led to the circumstances where, for example, you have EPA regulating greenhouse gases without having legislation that clearly provides authority to and having to rely on a statute that was written at a time when that wasn’t really on the radar screen.

Dave Scriven-Young.:

Got it. So lots of politics involved, lots of bureaucracy involved here. So Gwen and Paul, we are at the end of our time together and just wanted to leave some time for any last thoughts you might have. Professor Sa, we’ll start with you.

Gwendolyn Savitz:

So I just want to clarify that Chevron was not a completely fundamental rethinking of how we defer to agencies. It was really just cleaning up what had essentially been a paragraph of string sentences from different cases. And that’s partly shown by the fact that there was another case officially decided the same day as Chevron, that something that would have gotten Chevron deference and didn’t. It was decided under this old regime with this paragraph of string sites. So it was really, that was what the court had historically done through the entire administrative state up to this point, which is partly why it seems so calamitous to me.

Dave Scriven-Young.:

And Paul, your last thoughts,

Paul Weiland:

I think the point that Gwen mentioned earlier that’s worth reiterating is that we’re likely to see more circuit splits. So out here in the ninth Circuit where I practice, things may not change too dramatically. As a consequence of this, I think in some other circuits they’re much more likely to, and because the court takes on a very small number of cases each year, the chances of resolving those circuit splits when they come up on a timely basis are pretty small. And as a consequence, both for advocacy groups like environmental groups and labor groups, and for the regulated groups like businesses, there’s going to be more uncertainty in the law and greater risk of uneven application for better or worse.

Dave Scriven-Young.:

Well, lots to look forward to on the horizon. Professor Gwendolyn Savitz and Paul Weiland thank you so much for bringing context and looking into your crystal ball for these two Supreme court cases. Thank you so much for being on the show today.

Gwendolyn Savitz:

Thanks.

Paul Weiland:

Thanks Dave.

Dave Scriven-Young.:

Thank you to the sections law firm, Pearl sponsor, Nelson Mullins, Riley, and Scarborough. Further support of the litigation section. And now it’s time for a quick tip from the A BA litigation section’s mental health and wellness task force. And I’d like to welcome Charlotte Stevens back to the podcast. Charlotte is a lawyer and business consultant who provides workplace training, independent investigations, strategic human resources, counseling and mediation and conflict resolution. She previously practiced law in New Hampshire and Massachusetts for more than 37 years and spent the majority of her career at McLean Middleton, a regional law firm with more than 100 lawyers where she chaired the employment law practice group and also represented schools and healthcare practices. Welcome back to the show, Sharla.

Charlotte Stevens:

Thank you so much, Dave.

Dave Scriven-Young.:

Well, I understand you’re going to be talking about how to be a mental health ally, and what’s your quick tip today?

Charlotte Stevens:

Well, today I’m going to talk about what it means to be a mental health ally and then give some tips on how we can do that. We’ve become used to hearing the term ally used in the workplace context when it comes to diversity, equity, and inclusion. But it’s just as important to be a mental health ally as we work to change the culture in the legal profession to encourage lawyers to be healthier and to feel safe. Seeking mental health resources, allyship is critical. The single most prevalent barrier to seeking help I think as we all know, is stigma. According to an article written by the Jefferson Center, a community focused mental health care and substance use services provider in Colorado, stereotypes and misinformation about mental illnesses have made it difficult for some people to seek help for treatable issues. Allies, however can create safe spaces where people feel comfortable discussing their mental state seeking treatment and sharing their stories with others.

So a few tips. When you notice an employee or a friend, colleague struggling, ask how you can help start a conversation, say things like, what can I do to help? Do you need to talk? Can I support you in seeking help? And then follow through with that. Then listen, really listen and listen with empathy. Avoid being judgmental. Try to put yourself in the position of your colleague or friend. Think about how you might like this situation to be handled if you were talking about something so sensitive with someone you worked with. Respect, privacy, critically important. As long as the person is not in danger of harming themselves or others respect what they tell you about sharing the information, it’s often a process for someone to come to the decision to share and to seek help. Don’t force a person to come forward, but be supportive and check back with them.

Once you’ve started the conversation, it can take a little while. Be mindful of words. Use person-centered language rather than words like insane, crazy, druggie. Addict care is now being taken to use words like person who misuses alcohol or person who died by suicide. We’ve all heard references to the crazy client or the psycho opposing counsel. Try to avoid and encourage others to avoid using these terms. You never know if someone who hears you is struggling themselves or has a family member or friend who’s struggling and this language can add to the stigma or discourage someone from seeking help out of fear of being judged. But don’t ask the question out of fear of saying it wrong. You can always learn from a mistake and correct it. Share your own story. This is so important hearing that leaders or colleagues have struggled and have overcome or are continuing to work on challenges tells people that they’re not alone and that they’re in a safe place to speak about their own difficulties and seek help.

Law firm leaders who share their stories are incredible role models, and we can all be that. Educate yourself or better yet, encourage your firm or legal employer to educate everyone around them on recognizing the signs and symptoms of mental health and substance use disorders. Know what resources are available through your firm or in your community so you can refer colleagues, family members, and friends to the right place. Remember that if they’re in a difficult space emotionally, they may not remember or understand what is out there for them in terms of care, and we can’t forget to mind our own mental health. Remember to put your own oxygen mask on before you try to help others. Think about starting peer support and affinity groups in your own place of work, bar association or community, so you and others can rely on one another for the necessary support to get through you through the struggles. They may be temporary, they may be long-term, but we can all lean on each other in order to make the legal profession safer and healthier.

Dave Scriven-Young.:

Well, great tips. Sharla, thank you so much for being on the show today.

Charlotte Stevens:

Thank you for having me.

Dave Scriven-Young.:

And that’s all we have for our show today. I’d love to hear your thoughts about today’s episode. If you have comments or a question you’d like for me to answer on an upcoming show, you can contact me at [email protected] and connect with me on social. I’m at attorney Dsy on LinkedIn, Instagram X, and Facebook. You can also connect with the ABA, Litigation Section on those platforms as well. But as much as I’d like to connect with you online, nothing beats meeting you in person in one of our next litigation section events. So please make plans to join us at the 2024 Professional Success Summit taking place November 7th and eighth and Atlanta. The Summit features empowering programming to help you unlock your professional potential, and whether you seek valuable trial tips, engaging networking opportunities, insight from leading lawyers and judges, or CE credit, you’ll leave this inclusive summit with tools and practical insights to help you achieve your greatest heights registered today at ambar.org/pss 2024.

If you’d like the show, please help spread the word by sharing a link to this episode with a friend or through a post on social and invite others to join the show and community. If you want to leave a review over at Apple Podcasts, it’s incredibly helpful. Even a quick rating at Spotify is super helpful as well. And finally, I want to quickly thank some folks who make this show possible. Thanks, to Michelle Oberts who’s on staff at the litigation section. Thanks. Also goes out to the co-chairs of the Litigation Section’s audio content committee, Haley Maple and Tyler, true thank you to the audio professionals from Legal Talk Network. And last but not least, thank you so much for listening. I’ll see you next time.

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