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Episode 02 Buy Episode

WHS: What about Mental Health?

Law as stated: 4 August 2020 What is this? This episode was published and is accurate as at this date.
Michael Tooma, pre-eminent work health and safety lawyer, talks to us about how lawyers can create more mentally healthy workplace cultures.
Practice Management and Business Skills Practice Management and Business Skills
Substantive Law Substantive Law
4 August 2020
Michael Tooma
Clyde & Co
1 hour = 1 CPD point
How does it work?
What area(s) of law does this episode consider?Michael discusses mental health in the legal profession and in the workplace generally, in the context of health and safety.
Why is this topic relevant?When you think of workplace health and safety, you might think of industrial accidents causing physical injury at construction sites and other high-risk workplaces; mental health risks may not immediately come to mind. However, increased awareness of the mental health impacts of unsafe work practices over the past decade, amplified by the current COVID-19 outbreak which can include prolonged periods of self-isolation and working from home, have forced the Australian community to acknowledge and address the issue of mental health in all workplaces, including law practices.

A discussion on mental health would be incomplete without addressing the issues of sexual harassment and bullying, from which the legal profession is not immune. A 2019 report by the Victorian Legal Services Commissioner found that 61% of female respondents and 10% of male respondents reported being sexually harassed. Further, 81% of respondents who stated that they had experienced sexual harassment also said that they did not report it. Both bullying and sexual harassment are highly destructive and can have a huge impact on one’s wellbeing and mental health.

What legislation is considered in this episode?

 

The Work Health and Safety Act 2011 (NSW) (WHS Act) is the main piece of legislation that governs workplace health and safety in New South Wales. Every Australian state and territory, other than Victoria, has adopted ‘harmonised’ WHS legislation in substantially similar terms to the model WHS law developed by Safe Work Australia.

The Act is touched on in the episode when explaining a ‘PCBU’, or ‘person conducting a business or undertaking’, defined in section 5 of the Act. A PCBU includes public and private companies, partnerships, sole traders, government departments, associations and cooperatives.

Under section 19 of the WHS Act, a PCBU has ‘a primary duty of care to ensure, so far as is reasonably practicable, the health and safety of workers’.

What are the main points?
  • There is no ‘one size fits all’ approach to mental health that is appropriate for all workplaces. All individuals have their own lives, needs and concerns, and at a minimum, employers should adopt a more holistic approach when considering the mental health of their employees.
  • Psychosocial health is an emerging issue of concern; before COVID-19, 1 in 5 Australians have taken time off for mental health issues. This is in part recognition of a fact that people are recognising issues that have been previously undiagnosed.
  • In a profession where performance is often measured by billable hours – sometimes to the exclusion of any other metric – the pressure to adopt unsafe work practices can begin as early as law school and builds throughout one’s career. A majority of the legal profession measure performance through billable hours, and rewards recording a large number of billable hours – including volumes that are unachievable without overwork.  While some firms offer mental health first aid courses and employee assistance programs, Michael Tooma argues that sweeping and fundamental changes to our work practices are needed.
  • Challenges in the workplace are healthy. Under-stimulation can be as dangerous as over-stimulation. A healthy, productive level of stress is called ‘eustress’. But too much stress – ‘distress’ – is unhealthy. Michael Tooma suggests that one model for ensuring challenges are health and sustainable is to follow periods of intense work with periods of rest and lighter work, rather than trying to maintain a constant level of ‘eustress’ indefinitely.
  • Organisational justice refers to an employee’s perception of their workplace’s decisions and behaviours; it can include perceptions around procedural fairness, procedures, consultation and communications as well as how managing poor and underperformance is managed. These perceptions impact the employees own perception toward the organisation and can influence mental health.
  • Law firms, and employers more widely, in the midst of COVID-19 have been forced to trust their employees while they work from home. This shift has forced employers to challenge previously held mindsets that working from home reduces productivity.
  • A lot can be said about a workplace by its tone and culture. Michael discusses the saying, ‘the standard you walk past is the standard you accept’. He describes bullying as a cultural issue, although the same can also be said for sexual harassment. There is a culture of silence in the legal profession and law firms need to set an acceptable standard, encouraging bystanders to speak up and call out bad behaviour.
What are the practical takeaways?
  • People don’t talk about mental health, but it’s important to understand that everyone has good days and bad days.
  • There is a very high instance of mental illness amongst lawyers.
  • Sleep deprivation can be as damaging as working whilst under the influence of alcohol.
  • A holistic approach to mentally safe work practices is recommended. This involves active engagement rather than stringently following practices, procedure, systems and processes.  Since no one size fits all, sitting down, listening and having a conversation with your employees or co-workers is the first step if you want to understand their mental health needs.
  • Workplaces should actively encourage positive mental health and self-care habits, such as healthy eating, exercise and downtime.
  • When discussing flexible work options, employers should be mindful that different people may work more productively at different times.  Some people may work better in the mornings or evenings, or may even want to work four long days, or six short days, instead of five. Fixed mindsets on working hours need to be challenged.
  • Approach mental health as a performance issue, not a compliance issue.
Show notesTooma, Michael “Michael Tooma on Mental Health” 2020

The ABC radio program on the Goldilocks Effect

International Bar Association Report: ‘Us Too? Bullying and Sexual Harassment in the Legal Profession’

Office of the Legal Services Commissioner – Information Sheet on Inappropriate Personal Conduct in a Law Practice

David Turner:

 

 

 

 

 

1:00

Hello and welcome to Hearsay, a podcast about Australian laws and lawyers for the Australian legal profession, my name is David Turner. As always, this podcast is proudly supported by Assured Legal Solutions, a boutique commercial law firm making complex simple.

Many of us may not have thought too deeply about the health and safety risks present in our white collar offices until the COVID-19 pandemic forced us to grapple with social distancing and managing the risk of infection. Some of us might also have become aware in these last few months of restrictions of the deleterious effect of prolonged social isolation on the mental health of some of our own colleagues. But in reality, mental health hazards have been at least a potential work health and safety risk in all kinds of workplaces since long before COVID-19. Joining me today on Hearsay to talk about mental health and work health and safety risk is Michael Tooma, managing partner at Clyde and Co in Australia. Michael thanks so much for joining us on Hearsay.

Michael Tooma:Great to talk to you David.
DT:

 

 

 

 

 

2:00

 

Now I wanted to talk to you first about your interest in this topic. You are one of Australia’s preeminent work health and safety lawyers and a great deal of your experience in this area has been in industrial risk. Can you tell me a little bit about how you came to be so interested in mental health as a work health and safety risk?

TIP: Before we start our discussion about mental health, let’s talk about what mental health really is. The World Health Organisation (WHO) defines mental health as the ‘state of well-being in which every individual realises his or her own potential, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to her or his community.’ So it’s described in a positive way and in a way that promotes flourishing. For many of us listening, it comes as no surprise that the topic of mental health is a familiar one to lawyers. Instances of depression among lawyers and law students continue to grow at an alarming rate, and the prevalence of mental health issues among lawyers are warnings that we begin to receive as early as the first year of law school. In a 2019 Wellness Survey by Meritas, it was found that 63% of lawyers surveyed had experienced or knew someone close to them in the workplace who had experienced depression, with 85% of respondents experiencing or knowing a colleague who had experienced anxiety. While these numbers are alarming, they are alarmingly unsurprising.

MT:

 

3:00

 

 

 

 

Like most lawyers I’ve had an unhealthy relationship with stress in particular and, like any other human, have a struggle with mental health. What I mean by that is there are good days, there are bad days, everyone’s in that position. People don’t talk about it because traditionally it’s been a taboo topic, but you know legal professionals for a long time have struggled with these issues and businesses for a long time have struggled to work out how to deal with them. And really my interest in mental health started as an interest in just improving myself, in reading, researching, experimenting, trying things that might work for me and then eventually I thought ‘well I’m a reputable author in in this space, in work health and safety, and this should be a topic that I should research and write about.’ And that’s resulted in a book on mental health which is really a combination of my research on the topic and an interesting holistic perspective to dealing and managing mental health in the workplace.
DT:

4:00

 

 

 

 

 

 

5:00

I’m so glad you mentioned that personal experience because as you say it is the elephant in the room. There is a higher incidence of mental illness amongst lawyers, and I think one of the highest incidences of mental illness amongst professions in Australia is among lawyers. But we don’t talk about it very often in any more than generalised or abstract terms, I think. I think we rarely talk about the challenges that we’re ourselves facing. We might talk about them in terms of a challenge that the profession is facing, but rarely in personal terms. But I really find it interesting talking about this as a work health and safety risk from the lens of work health and safety law, because I think while there might be that generalised understanding in our profession that mental illness is something that lawyers grapple with it, and it might be that individual lawyers or individual partners are aware of the mental health challenges that some of their employees are facing, I don’t know that many firms really grapple with that as a work health and safety issue. What are the work health and safety obligations of a PCBU generally?

TIP: A PCBU, or ‘a person conducting a business or undertaking’ is defined in section 5 of the Work Health and Safety (WHS) Act 2011. This refers to employers such as businesses or organisations generally. But it’s a broad term used throughout work, health and safety legislation to describe many forms of modern working arrangements. Under section 19 of the WHS Act, a PCBU has ‘a primary duty of care to ensure, so far as is reasonably practicable, the health and safety of workers.’

MT:

 

 

6:00

 

 

 

 

 

7:00

Now the health of workers includes not just physical health but also psychological health. That’s been the case since the very beginning of the introduction of work health and safety legislation in the early 1980s around Australia. But it really has been the poor cousin of safety obligations. So, we understand safety obligations to be about industrial safety, about physical harm, about preventing people from being physically injured, but we rarely talk about people being psychologically injured. Psychosocial health has been an emerging issue of concern and recognised as such for some time. And really before the COVID-19 pandemic we were experiencing a pandemic of a different kind in that 1 of 5 Australians were reporting taking time off for mental health issues. And the instances of mental illnesses, stress, depression, claims for stress, have been steadily increasing for some time and that can’t just be explained by simply saying that people are under more pressure I think it’s in part of recognition of fact that people are recognising symptoms and diagnosing issues that previously perhaps had gone unnoticed and undiagnosed. I quickly came to realize that actually that’s a very small perspective on a much bigger problem and much bigger challenge. And really what’s required is more of a partnership and a holistic approach that involves and engages with the worker rather than simply focuses on practises, procedures, systems and processes. Systems, processes are part of the answer but not the whole answer.
DT:

 

I’m glad you mentioned that dichotomy between the capacity for systems and policies and ways of working to create, if you like, a psychosocial injury and the other side of that coin which is preventing the exacerbation of an existing mental illness or existing mental harm by the way that person interacts with their workplace.
MT:

8:00

 

 

 

 

 

 

9:00

That’s the challenge. The challenge is people put up their hand in frustration and say well, you know, same systems and policies, same workload and someone reacts differently or and quite genuinely has a mental illness develop out of exactly the same workload, exactly the same working conditions as someone sitting, you know, by their side and who doesn’t show any symptoms. And so, a lot of people then put up their hand and say, ‘well how am I supposed to cater for that?’ Or ‘how am I supposed to address that?’ And l tackle that issue square on quite controversially in my book, and I talk about this kind of Goldilocks mindset.

TIP: Now Michael’s reference there to the Goldilocks principle is of course a reference to “Goldilocks and the Three Bears” the children’s fable. And that fable has been used as a metaphor for ‘not too much, not too little, just right’ in a whole range of different disciplines, including astronomy, economics and engineering. Applying this in the health work and safety context means that we as employees don’t feel like we have too little work so that we feel undervalued, but not too much work either so that we feel stressed and overworked, but that we have just enough work to feel fulfilled and productive.  

DT:And too little work can be unfulfilling as well.
MT:

 

 

 

 

10:00

 

 

 

 

11:00

 

 

 

 

Exactly right. So too little work could mean that people feel somewhat vulnerable, targeted, or undervalued and therefore that might actually be a stressor in its own right, but the problem is that that ‘just right’ combination changes from time to time depending what else is going on in the individual’s life, right? So, it’s completely unrealistic to try and tackle the work context without the overall broader holistic context. And so that’s why I’ve come to the view that ultimately if we’re really genuine about tackling mental health in the workplace, we need a partnership between workers and workplaces. We need transparency, we need people to share in both the responsibility of building up their own resilience, on the one hand, as workers, but also the workplace to invest in an approach that improves the overall well-being of the worker even beyond the workplace. In other words that’s not have a, you know, not that people work 9-5 anymore, but that’s not have a kind of ‘I’m responsible for you from 9 to 5 and that’s all I’m responsible for and expect that over time that will lead to good outcomes,’ I need to be thinking about how do I partner up with you to seek to improve your mental health and well-being in every interaction that we have so that I build up your mental health through work. And it led me to another revelation, and that revelation was that this idea that we think that work is bad for us, is actually the biggest myth that we actually need to debunk if we’re going to tackle this issue. Anyone who thinks work is bad for them has never gone without work, right? Ask the people out there right now who have sadly become unemployed as a result of the economic crisis that has resulted from the COVID-19 crisis, the health crisis that we’re suffering. Ask them how they feel about their overall health and well-being and mental health. Ask people who have retired sooner than they thought they would retire. And the statistics bear that out. They actually have a 40% greater mortality rate and greater risk of contracting mental health illnesses, particularly depression, once they retire. Because ultimately in a modern society we derive a lot of satisfaction out of…
DT:

12:00

 

 

 

 

 

13:00

 

 

Well its identity as we said before it’s fulfilment you know I think there’s this idea that happiness is the thing we, getting a little philosophical here, but I think there’s an idea that happiness is the thing that we pursue. Yeah we were talking about this idea that happiness is not kind of an end in itself, or it’s the product of other features of our life and work gives us a sense of identity, a sense of purpose, a sense of fulfilment and contribution to society and you’re right that work can provide a great deal of happiness to us. It can be really conducive to our mental health. But I really like this idea that you described before that perhaps this dichotomy between the way that one’s workplace affects one’s mental health and the way one’s home life affects one’s mental health, is actually a false dichotomy. That they’re two sides of the same coin and I want to come back to that later because I think that really informs some practical tips that I imagine you have for our listeners and for our listeners’ clients on this topic. But right at the top of the episode you described psychosocial risk as the poor cousin of the physical risks that we’ve tended to focus on, risks of physical harm particularly in industrial workplaces, much more in the work health and safety law context. Tell me a bit about why that is? I imagine, at least in part, that’s because psychosocial risks or even psychosocial injuries are invisible, at least when you compare it to a physical injury.
MT:

 

14:00

 

 

 

 

 

15:00

 

 

 

 

16:00

 

 

 

 

17:00

 

 

 

 

 

Perhaps, perhaps. I think it’s historical. I think that health and safety law emerged out of an industrial context. Factories, shops, mines, construction context and the regulation of health and safety laws at least prior to the model laws that developed in the mid 1970s, early to mid 1970s around the world, mostly out of the UK, had very much had a prescriptive approach around standards. So, you know guarding machines, standards in relation to even chemicals, or all things that needed to be put in place, fire safety requirements and the like. And because of that context, when it came to evolving into a duty of care with no prescription, really the context of that prescription gave the flavour of how the laws came to be interpreted. Now I’m talking about you know events in the mid 1970s they came to Australia around you know at the earliest late 1970s and early 1980s. And but, when the law developed when it came to the enforcement of the laws, the inspectorate was selected out of that industrial context. And so, there’s always been a bias until recently towards the things as you say that you can see. The standards that you can enforce and there’s always been a perception that these things are “easier” to prove. Or that these things are perhaps in a bias kind of way, more serious. That you know losing a limb is serious, that losing a life is serious and it is all those things. It’s not really until recently that we’ve come to understand that actually a mental health condition may also result in people losing their life, or self-harm and that depressions and other mental illnesses can be just as debilitating as losing a limb or being physically injured. It really has required our society to come to terms with, you know, the importance of mental health and psychological health. And to accept that there are direct links between events, systems, a lack of systems and those poor outcomes. Now I must say even though it’s taken a long time for us to get here, it’s coming. It’s even coming to law firms. We’ve seen in a number of now high-profile investigations of law firms, top tier law firms, there’s been an interest for some time in workload of young lawyers, in particular.

TIP: We spoke about the high rates of depression in the legal profession earlier. The Black Dog Institute has reported that there is a high rate of suicide and suicidal ideation among lawyers and law students, with young lawyers being the most vulnerable. Empirical research on new lawyers has found that the wellbeing of newly admitted lawyers is significantly shaped by their early experience of practice. Many law firms, as Michael has said, are trying to make improvements and address the issue of mental health, by for example, by running mental health first aid courses or offering employment assistance programs.

The potential for burnout through overwork. We as professionals have known about this for a very long time. We as lawyers have known that you know the industry and the profession itself suffers from this pattern of working, particularly young people, excessive hours and in many circles it’s seen as a, sadly, as a rite of passage but we lose too many people to the pattern of burnout. You know we sit here, and we wonder why most junior lawyers leave the profession and only a few you know get to higher ranks like senior associate or partner.

DT:

18:00

Our industry is in a way almost structured around that expectation that we have a pyramid based model, we expect burnout across the life of a professional and we expect that many of those lawyers will, as a result of burnout, not make it to that senior associate, special counsel partner level.
MT:

 

 

 

 

19:00

 

 

Yeah. And even in the way how we recognise performance, we reward performance, would be unacceptable in any other context. I mean I always use the trucking industry context just to kind of ground us right. For a long time, they would incentivize certain types of conduct where you know you got more money for longer shifts to drive further. And we know from bitter experience that that resulted in people taking methamphetamines to stay awake to drive under conditions where they are severely fatigued, resulting in not only death to themselves through vehicle accidents, but also to members, innocent members, of the public because you know a large, a road train, hitting a vehicle. Now we managed to stamp that out of the trucking industry despite all of the biases towards rewarding people based on that output and yet we struggle to do the same in the legal profession. Largely because we don’t recognise it as being dangerous, we don’t recognise it as having that terrible impact on people. And in many respects, we also are not, we’re not tackling it, we’re not talking about it. We’re not trying to find a workable solution to the problem.
DT:

 

 

20:00

We’re talking of course there about measuring performance through billable hours and I’m so interested that in many of our interviews on all different topics, we keep coming back to this topic. Recently I was speaking to a guest about the economic dimensions of billable hours that they’re not necessarily what our clients are seeking, that there’s plenty of quantitative and qualitative data to show that and that there are sort of perverse principal and agent type incentives from an economic perspective to incentivizing employees through billable hours targets. But your analogy there with the trucking industry that it’s actually an unsafe kind of incentivization is a really fascinating one.

TIP: If you’d like to listen to a great discussion around fees, methods of billing and the importance of empowering young lawyers, be sure to check out our interview with Dr. George Beaton, another episode of Hearsay.

MT:

 

 

21:00

 

 

I think those large-scale investigations are coming. They’ve started, but I think that they’re very much coming. I mean the forensic evidence to prove overwork in our industry is second to none. We meticulously record the systematic overworking of our staff and boast about it and pay people bonuses based on a pattern of overwork. We, you know, in the absence of recognition of quality, we use over-performance in financial terms as in excessive performance against budget, as a proxy for high performing lawyers that then get promoted to senior associate who then once they overwork and continue that pattern of overwork, get promoted to partnership. And you know as partners what do you expect them to do other than expect everyone else to do exactly the same thing that they did to get to where they got to?
DT:And not for the least reason that as a partner, your budget is now based on expectations that your employees will do the same thing.
MT:

 

22:00

I mean it’s just the world’s oldest pyramid scheme, isn’t it? I mean really, and we seem to look at it, admire the problem and ignore the adverse consequences of it. I mean I’m determined that as a leader in this profession I will tackle this issue of moving the profession away, at least moving those parts of the profession that I can control, away from billable hours targets. But there are systemic and design issues that force us back. And it’s actually not about clients, it’s not about fixed fee or alternative fee arrangements, it’s not even about not recognising the adverse impact of billable hours. Ultimately the real issue is that the back of house systems for measuring profitability and success and knowing whether the firm is performing or not performing, are all based on billable hours!
DT:

 

 

I’m glad you said that because you know, you talk about a firm that says ‘well we don’t use billable hours anymore we use a fixed fee system instead’, but the extent to which that fixed fee is considered an appropriate or profitable or effective fixed fee, is measured against what? Against a timesheet.
MT:

23:00

 

 

 

 

 

24:00

 

Against billable hours. Basically, in order for me to arrive at what the alternative fee arrangement will be, as in what is the fixed fee arrangement, I’ve got to work out ‘well how much time input has gone into that output?’ Right? So, with the client I might have a fixed fee arrangement, but internally in terms of assessing whether that fixed fee arrangement was profitable or unprofitable, I’m still measuring billable hours. And actually, in a perverse kind of way, the propagation of fixed fee arrangements has led to an even greater exploitation of lawyers because they now have to make up for the unprofitable deals that are being done with clients around fixed fees! So, through no fault of their own, the partners are entering into fixed rearrangements and the fixed fee arrangements only make sense for the client if the fixed fee is providing them with certainty that actually is below what they would get from a time-based recording. So the clients might be happy with the outcome, in the meantime someone is actually working away at producing the right answer and the right quality product for the client and you can’t compromise that so you still have to work the hours that are required, regardless what the financial arrangements are. And now because somehow that is an unprofitable position, what it drives is: more and more hours!
DT:Because the key performance indicator is still hours recorded, whether or not it’s billed on a fixed fee or not. And I think this issue is not just a work health and safety issue in our profession, it can also be an ethical issue, can’t it? That we have a professional responsibility to our colleagues and our peers. As a lawyer, as the managing partner of a firm, how do you see the ethical responsibility that you and your practice have to the lawyers that you work with and who work with you?
MT:

25:00

 

 

 

 

26:00

We’re responsible for people that entrust us with their careers. They choose us to join our organisation to work with us. And we have in the same way that past generations have nurtured us and guided us through this profession, we have a responsibility to do the same and to maintain the sustainability of the legal profession. And I think we are increasingly losing sight of that, of leadership responsibility, of that ethical responsibility that we have to young people. and the responsibility that we have to profession more generally to promote the careers of these bright people that are entrusting us with their careers, with their development. And if ultimately, we continue this model, it appears to me to be spiralling off losing bright young people out of our profession, then what will our profession look like in 10, 20 years’ time? That’s what worries me, that is something that I feel the weight of that responsibility as a leader in this profession.
DT:

 

And you know people sometimes talk about the concern that they have for having a pipeline of good senior lawyers because of automation, for example, that sometimes lawyers express a concern about adopting automation in their business because well ‘how will our junior lawyers learn their trade?’ But it’s just as much of a risk.
MT:

27:00

 

 

 

 

 

 

28:00

 

 

 

 

 

 

29:00

 

 

 

 

 

I don’t see automation as a threat, I see it as an opportunity. I actually think that much is said about you know, AI and what role AI will play, and whether lawyers will have a role. If you have bright people who are well trained, they will find a way to use technology to enhance their services. I’m not naive enough to say that we will never be replaced by machine learning. I don’t have that view but I think the key is how do we embrace that future and reality? Frankly if there are some things that can’t be done profitably, why not automate them? If there are some aspects of work that are repetitive, then why not automate them? I want to take us back to the mental health aspect because I think it’s instructive to this conversation. You were talking earlier about happiness and how we derive happiness. Well the research is now well established on that issue. People, particularly professionals, particularly white-collar professionals, derive a lot of happiness from being challenged, being constantly challenged, in fact. And look reflect on this in your career David, if I said to you, you know, what are the highlights of your career? Would you share with me you know bureaucratic repetitive exercises that you’ve done? Will you share with me something that was a matter that was well within your means and the means of your peers that you had done a thousand times before and will do a thousand times more? Or, alternatively, would you reflect on something that was hard? That challenged you? That was actually outside of your comfort zone but within reach and you rose up to the challenge and achieved something perhaps against the odds, and perhaps, you know, when you achieved that outcome you felt a sense of satisfaction that you had stretched yourself, that you had grown through that process, that it was something worthwhile doing, something that was harder to achieve. Now if I was to actually sit down and analyse that in a different prism, what I’m describing in the challenge is stress. What you will reach to, to talk about as something that you’re proud of, is an occasion where you were stressed. And we keep on talking about stress like it’s a bad thing, but actually stress is not a bad thing.

TIP: Now in this portion of the episode I want to ask you, the listener, to reflect about the question Michael has just asked me. Think back to the highlights in your own career. I’m sure your answer to this will bring up a memory of a challenging time with a pinch…or maybe slightly more than a pinch of stress thrown into the mix. The World Health Organisation describes a healthy job as one where the pressures on employees are appropriate in proportion to their abilities, their resources, the amount of control they have over the work and the support that they receive. The right amount of pressure can keep employees alert, motivated and encourages continuous learning.

DT:

30:00

Well we talk about distress as a bad thing, but there’s eustress, you know positive stress and there’s a point of diminishing return on stress where it does become distressing, but there is an efficient level of stress.
MT:And so, let’s explore that a little bit more in the context of the legal profession. So, you don’t want people to have monotonous tasks. You don’t want people to be under-stimulated, under-challenged in their roles. You want the opposite. We actually want people to use the full extent of their skills, to develop skills, to constantly be challenged.
DT:

 

31:00

You know we work at a consistent high level of stress, even if we initially think of that as an ideal amount of work, that’s ultimately unsustainable. But that idea of spikes in challenge followed by periods of adaptation and recovery that makes a lot more sense in terms of what you’re describing there. Do you think in the professional context this idea of stress, eustress (positive stress), followed by adaptation is that a part of the self-resilience, the capacity to be resilient that we were describing earlier?
MT:

 

 

 

 

32:00

 

 

 

 

 

33:00

 

It’s actually a work design issue, I mean we haven’t even scratched the surface on the word design. So the problem with the legal profession, we’ll focus on the legal profession for present purposes, the problem with the legal profession is, I’ll embarrass you here you worked for me David, so if I recognise you as a talent I say ‘David is very talented’ right? Then I now have a bias towards David. I give David more stuff to do. David’s reward is to get more stuff and more stuff and more stuff, right? It’s actually, and this is kind of a lazy management style that we’ve all adopted, I’ll call it favourites, but the better view is that we recognise talents in young people. And then once we recognise that talent, we invest in that talent and the way to invest in talent is in fact to give people more work and more challenging work. But then ultimately, we are surprised that some people break under that constant, constantly increasing pressure, right? A better view would be, I give you a challenging piece of work and then the next challenging piece of work goes to someone else, and the next challenging piece of work goes to someone else, and everyone gets a go at that growth spurt and then I come back to you when you’ve had a chance to rejuvenate and then I go through to the next person. And that rejuvenation may be by design, as in I give you leave right, it may be that I just give you less work. It may be that I give you less complex work right, but that requires thought. It also requires something else: for us to lose our obsession with billable hours, because if you’re only as good as your last billable hour, right, then today you’re a high performer, next month you’re not on the big matter so you’re not a high performer. You know you string together three months of not being a high performer, you’re on someone’s radar and we’re now having a different conversation and you’ve stopped being ‘star David’ and you’re now you know performance counselled David.
DT:And our organisations aren’t designed to measure anything else.
MT:

 

34:00

And organisations aren’t sophisticated enough, currently, aren’t insightful enough currently to measure other things, to actually allow teams to self-govern, to trust leaders to actually engage in what I’m describing of allowing people to grow in spurts and then to have an opportunity for downtime. To actually build in like leave as a concept of ‘now you’ve earnt your leave, you have exceeded your hours, now I’ll pay you that back in hours in lieu by sending you away for a holiday’, right. Those concepts used to be instinctive in the old days when teams were smaller; they don’t seem to operate in the same way.
DT:

 

 

 

 

It’s a concept that would be anathema to so many partners in law firms who’ve experienced the continuous cycle of you always have to be billing at that level and that is the sum total of your worth to the organisation. I just wanted to make an observation about what you were describing in terms of you create a fixed mindset for yourself about the capacity of a particular talent and feed them with work and perhaps they get better and better but eventually burn out. You never challenge that fixed mindset about the other members of your staff either. That if you’re not providing them with challenging opportunities they won’t grow, and your assessment of their worth is self-fulfilling there.
MT:

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And there are mental health consequences of that because the only way in which we appear in the legal profession to signal performance is to give people work. And if you are the person who misses out on work, that is a signal that you are not valued. And if you’re not valued, then that leads to a spiralling impact on your perception of your worth, the fairness of your treatment, and organisational justice is a huge part of mental health in the workplace.

TIP: Now let’s stop and unpack the point that Michael’s making here. Think back to the early days of your legal career, when your worth often felt like it was being measured by the number of hours you billed, or the amount of times a senior lawyer approached you for a task over a different junior lawyer, or even the number of times that your work came back with fewer and fewer amendments. Now on the one hand, the talented lawyer who is being fed work and being given the opportunity to grow risks burnout under that large workload, and the other junior lawyer who perhaps misses out on those challenging opportunities, also misses out on the chance to learn a new skill or meet their billable hours target for the month, then is questioning their value and their skillset. Being more cognisant of the effect that unequal delegation can have in your day to day practice can have a huge impact on the health of your business – not to mention the mental health of your own junior lawyers.

So, all of these things are design issues and you know but we haven’t even started to tackle the idea that we’re a whole person. That my ability to cope with what you give me can be affected by what else is going on in my life. And actually, what else is going on with my body? So, and this is where we talk about, you know, micro experimenting. I mean for me I’ve had a blessed career, I’ve grown up in the way that I’ve just described and maligned in terms of I’ve worked ridiculous hours as a young lawyer, I was particularly ambitious and impatient to succeed and put in all the hours that God gave me 7 days a week, working around the clock to achieve those objectives. Now as a youngster I got caught up with that probably over time, probably had reactions that in terms of how I perceive things that now I look back on and say well you know if only I knew then what I know now. But if I look objectively at my current workload, at the pressures of my current roles and responsibilities, by comparison to you know my earlier workload, it’s multiple folds what it used to be, but because I’ve engaged in a whole programme that is designed to get me ready for work, right, as a whole routine every morning we can kind of talk about it, it’s self-help for me right and what works for me might not necessarily work with everybody else, but there is science that sits behind it and it’s things like looking at nutrition, encouraging healthy lifestyles that lead to broader personal resilience and mental resilience. So, a lot of workplaces do it unwittingly for example they offer, they subsidise gyms. We encourage people who are interested in the arts to be part of a culture club where they, you know, they can together explore the various cultural appreciation you know activities in, around the major cities that we’re in.

TIP: Now it sounds obvious to do something outside of your work that you enjoy, but let’s just run through some of the advantages of making sure you’re doing that.

  • A study in the Journal of Occupational and Organisational Psychology found that those who engaged in creative hobbies were more satisfied with their jobs and had a lower risk of burning out; and
  • Those who engage in enjoyable leisure activities had lower blood pressure and lower stress levels.

You know what this means? If you don’t have a hobby…it might be time to get one.

So, the nutrition aspect of it I think it’s an education piece. So, it’s a modest investment that an organisation can make in educating its workforce around nutrition, even finding nutritional coaches. Subsidising physical activity like bike, gym membership etc., sponsoring sporting events that might encourage people to be out and about. And we haven’t even started to talk about sleep. Sleep is a superpower, right. I mean sleep is the difference between that, again if we talk about as a youngster I took pride in having, I think I used to talk about I would work on an average of 3 hrs sleep a night and I would do that and then I would binge sleep to make up for that. Worse thing you could do, like just absolute really awful stuff it does, it wreaks havoc on your system, right.

DT:And there’s an ethical dimension to that as well because we know that working in a state of sleep deprivation is not very much different to working drunk.
MT:

 

 

 

41:00

Yeah absolutely. Absolutely. And so, you know all that educating people on the importance of those things, benefits of that. And if you really want to get into design questions of workplace design, actually recognising that some people are early risers, some people are night owls and accommodating people and not expecting everyone to work the same hours and being flexible, becomes the key to actually getting the most out of people and making sure that that their performance is maximised but also their mental health is maximised through the whole exercise. No one ever in law firms, typically, people don’t notice what time you come in unless you come in at lunchtime or something, but they almost always notice what time you leave.
DT:Yeah, the face-time aspect is definitely at the end of the day, isn’t it?
MT:

 

 

 

 

 

 

 

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43:00

Exactly and it’s nuts! Who cares what time you come in and what time you leave? It makes no difference and we’ve proven that now. People who work from home are simply more productive than they’ve ever been, it’s no accident, right? Because they can regulate what hours they do so long as the output is there, no one cares, and I think we just need to kind of be a bit more mature as organisations.

TIP: Now before the COVID-19 pandemic, the common assumption, and it would have been a mistaken one, is that remote workers are less productive than those working from the office. A survey by Swinburne University researcher John Hopkins and Anne Bardole found that nearly 4 in 10 respondents had never worked from home before the COVID-19 crisis. But only 10 percent said that they won’t return to working from home, even on a part-time basis. Forbes reported that a California-based company tracked a 47% increase in productivity and there is no doubt that working from home during this pandemic will lead to a fundamental change in the way in which remote working is perceived and implemented by businesses in Australia, including law firms.

And that’s just the sleep aspect of it, I mean let alone flexibility to actually cater for your life outside of work, your branch of responsibility, your care responsibility, particularly with an ageing population and care to parents that people, elderly parents, that people might have to give, child care obligations. People perceive hours as the issue, actually it’s the lack of flexibility around the hours that’s the issue. I mean lawyers can work not only 5 days but more, right. Let’s face it, often lawyers work 6 sometimes 7, I used to work 7 days, that means no down time which is a problem that has consequences more broadly, but actually they’ve done a number of experiments now in various organisations and have found that in an organisation called Perpetual Guardian in New Zealand you can get more productivity out of a 4-day week then you do out of 5. You can actually increase the output of productivity by reducing the number of days that people work. And again, if you were just to say that to lawyers, how are you supposed to do that with a time-based recording model, right…

DT:You’d be making up for it on every other day.
MT:Correct.
DT:

 

 

 

44:00

 

 

 

I suppose there’s the opposite of that where some employees would rather work 6 short days and it’s a matter of personal preference. But you know I see the challenge in what you’re describing because, maybe this is a strained analogy, but if I think about the industrial context you have personal protective equipment. And you know a harness, or a helmet is good for everyone no matter who they are personally, who they are outside of work, if you’re wearing a harness and you fall off a roof, you’ll be safer than if you weren’t wearing one. In the context we’re describing, a lot of these practises around diet, sleep, personal fulfilment outside of work, exercise, so many of them are individual to the worker and it’s not as though you can prescribe one panacea for everyone. It sounds like employers, PCBUs, whoever they might be, really have to be 1) curious and insightful about what their workers need as individuals but also, I think curiosity is an enormous strength. But not just curious and insightful about what their workers need, but you also need to have a great deal of trust.
MT:

 

45:00

Yes. Both things are astute observations, and well put in the context of mental health. It turns out in the other work that I do for broader industrial safety, they actually turn out to be the key to success in that context in any event. So even though we think the symbol of success from an industrial safety perspective is this idea of people wearing visible signs of safety like hard hats, high visibility vests and other forms of PPE and you know, talking in the current COVID19 context that people wear masks and I think again it’s a symbol that they are taking this seriously etc., and has benefits, there’s no doubt that PPE has benefits, PPE in the context of COVID19 has benefits also. Actually, being curious about why people do work the way that they work and what makes work easy and what makes work hard, turns out to be the key to success from actually improving safety outcomes generally. And mental health is just another example of exactly that.
DT:

46:00

 

There’s very little work of work, health and safety law that I remember from our time working together. One of the things I do remember is that you know personal protective equipment is one of those things that again, maybe we’re labouring the analogy, personal protective equipment is one of those things that comes further down on the list of the controls, on the hierarchy of controls, and that the most effective one is to design the system of working in such a way that you eliminate the risk in the first place.
MT:

 

 

 

47:00

 

 

 

 

Exactly right. Exactly right. And so that’s what we’re trying to achieve here, and this is where we go full circle it’s about a partnership, right. It is absolutely about curiosity, it is about insight, it’s about trust without a doubt those three are critical components. But it’s a partnership right. It’s me sitting down with you David and saying, ‘what would work for you, and let’s plan around that.’ And actually, controversially one of the things I advocate is getting your baseline. Because what I would like to see is not a situation where workplaces simply aim to not prevent adverse mental health outcomes, but rather that workplaces actively try to promote mental health in a workplace. They’re different concepts right, so one is a depletion concept right. You come to me somehow whole and I’ve got to make sure that I don’t deplete you, as if that is even a concept that is sustainable. Today I might be whole, tomorrow I might be three quarters full you know this stipulation concept is not particularly insightful or workable in my view again it leads itself into a Goldilocks kind of mentality. And I want to switch that to my job and my responsibility is to improve your mental health. I want you to walk out the door at the end of the day more fulfilled and happier than you walked in.
DT:That idea that we were discussing earlier about work being an important part of a fulfilled life.
MT:Absolutely.
DT:

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We’ve had such a wide-ranging discussion today; it’s been fascinating to me. And I think there’s a lot for our listeners to think about both in terms of the safety of their clients’ workplaces but particularly their own, in the legal industry context. I want to come back to the professional responsibility or the ethics aspect of this question because there are some mental health risks or some mental health hazards in the workplace which are already the subject of prescriptive rules for our profession, and I’m talking about bullying and sexual harassment. Is there scope, in your view, to extend those professional responsibility rules to cover other mental health hazards in our profession other than those ones? Perhaps some of the more difficult to address challenges like workload in the framework of our professional responsibility rules?

TIP: Bullying and sexual harassment are inextricably linked to a discussion on mental health. A 2019 report by the Victorian Legal Services Board surveyed 2,300 Victorian legal professionals. The survey revealed that almost two-thirds of female respondents, and just over 1 in 10 men, had been sexually harassed, with many indicating that the behaviour had been ‘highly destructive’ to their wellbeing or career. It’s also clear that there is a culture of silence around bullying and sexual harassment with 81% respondents to that survey who said they had experienced sexual harassment, that they didn’t report it. In 2019, the International Bar Association conducted the largest ever survey on bullying and sexual harassment in the legal profession. Its results are alarming and eye opening, and a really important read. We’ll leave a link to the International Bar Association’s survey results in our show notes.

MT:

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Look I think so. I think as we grow the appreciation of the extent of the problem, I think more is going to be expected of law firms in trying to tackle the issue. I just want to say something about bullying because again we have a very simplistic view of the issue. So, we seem to kind of have a transactional view of bullying. There is a bully, a perpetrator, and a victim, right? And it comes to our attention because typically the victim makes a complaint either internal or externally, and their complaint is investigated and then we, as a result of that investigation, we work out whether the complaint is valid or not valid. If it’s valid then we hopefully deal with the bully and there are adverse consequences to them, and the claim is validated. If it’s not, then inevitably the person feels dissatisfied and exits. So, what I’m trying to describe to you is a situation where you know two people both can’t be right, and ultimately more often than not one leaves the organisation and we think we’ve dealt with the problem. This is the problem with this view. Bullying fundamentally is a cultural issue. It’s the old adage ‘the standard you walk past is the standard you set’ applies more so to bullying than anything else. And context is everything. Behaviour that is acceptable in one workplace, is unacceptable in another because the tone and culture is set. And people talk about this in this way, Victoria’s on my mind at the moment because what’s going on in terms of the lock down etc., Victoria is the home of AFL, it’s also the home of the Australian Open Tennis. The same people typically go to both. Not always, but there’s a huge overlap between you know sport-loving Victorians that go to AFL games and attend tennis. And the same people can go to an AFL match and be as rowdy as they can and make as much noise as they can and cheer for their team but know that during points, they need to be completely quiet. It’s remarkable the self-regulation of that social consensus, no one makes a noise, right, while a point is being played in tennis. Same people can understand the context one to the other and that’s what I mean by you know it’s   a cultural issue. So, you set the standard in an organisation, don’t be surprised if you set a bad standard for there to be instances of problems. If you set a standard, then it self-regulates. The consensus of the culture will be the first time someone steps out of line and says something, the community (which is the workplace) will regulate that. And then the person who, the would-be victim, won’t feel victimised. Actually, it’s the would-be bully that will feel socially uncomfortable.
DT:Yeah that’s powerful.
MT:

53:00

So ultimately, we spend a lot of time talking about two of the actors and spend no time talking about everyone else who was watching.
DT:Yeah, well I imagine that’s informed by, you’ll be able to tell me, are the regulators when they take action in this sort of area, are they looking at the broader organisational culture? Are they looking at the behaviour in the context of a culture? Or are they looking at it as a kind of ‘one size fits all’ this is bullying, and this isn’t.
MT:

 

 

54:00

No, no, I mean it depends on context. I mean if it’s the health and safety regulator bringing the prosecution and looking at the policies, procedures, culture, standards, other instances of similar behaviour but I think that what is often missed both by regulators and organisations is this bystander role, right? And the more that you encourage bystanders to speak up, the more that you try and engender a sense of offence through the bystander, the objective by-stander, so-called objective bystander, the more that you instil the standard and culture in that organisation, because they’re not objective…
DT:Yeah, they’re informed by the context that they’re in.
MT:

 

 

 

 

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And well, more to the point, they’re not an innocent actor in relation to what is transpiring in front of them. They have a choice. The choice is to call out bad behaviour or not to call bad behaviour, and thereby condoning it. So, if you engender this kind of sense of this is acceptable behaviour or this is not, and calling out unacceptable behaviour, you actually stand a good chance of stamping out bullying in workplaces.

TIP: There are many reasons why someone may not report bullying or sexual harassment. The Office of the Legal Services Commissioner has a really useful information sheet on how to report inappropriate conduct by someone in the law. Informal disclosures can be made anonymously to the Commissioner, and there is also an investigation process should a formal complaint be made. You have control over what use is made of your information. You’ll find these useful links to the Commissioner’s website in our show notes.

But so long as we keep on focusing only, on the one hand existence of a policy, and on the other, you know the interaction between two individuals, are we really tackling the issue as the systemic issue, the cultural issue, that it is? So, this expectation setting becomes very very important. This calling out behaviour, unacceptable behaviour becomes very very important. And that’s true of bullying, it’s also true of sexual harassment. There’s a very obvious link there and there are mental health consequences that now are well recognised in relation to sexual harassment you know leading to adverse mental health outcomes for the victims. So, you know, these are evolving themes, and I think the legal profession generally will need to come to terms with that pattern of needing to tackle these issues as cultural issues to benchmark the cultural organisation around those issues before they become something that is an investigation. To try and engender the right values to enlist and weaponize the bystanders.

DT:

 

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Yeah and examine the ethical responsibility of the bystander. Michael we’ve talked today about how a ‘one size fits all’ approach to mental health doesn’t work. That an approach to mental health of workers really has to be adapted to that person’s individual circumstances and their own preferences, and that’s certainly not an easy thing to implement. I imagine there are some people, maybe some of our listeners, who might be sceptical about their capacity to implement that sort of curious, insightful, very in-depth investigation into what works for their employees and perhaps are sceptical about the extent to which they can invest that level of trust in the people who work for them. What would you say to that kind of scepticism?
MT:

 

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Don’t focus on this as a compliance issue; focus on this is a performance issue. How do I get the best out of my people, in a sustainable way, in the long term? If you frame the question about performance then that curiosity, that investment, that trust, goes hand in hand with your approach. If you frame it as a compliance question, then you ultimately go down the rabbit hole of policies, procedures, training, instruction, ‘the floggings will continue until morale improves’ type of mentality, which doesn’t work in any context. Ultimately trust is fundamental to an employment relationship. I mean so much so that in employment law, your overall breakdown of trust brings the employment relationship to an end. That’s the context and justification for summary dismissal for example. So, we have to actually give into this trust that is a prerequisite of the employment relationship. And reflect on the recent experience that has been fostered on us as a result of COVID-19 pandemic. As sceptical as people might have been on whether working from home arrangements work for example, certainly the experience of this firm is that people are more productive working from home then they are working in the office. I know from my peers and conversations with my peers and conversations with colleagues and other firms, that that has been the universal experience of most law firms.
DT:It’s really this great experiment where so many firms that wouldn’t have had the appetite to try this sort of experiment with working from home, at such a dramatic shift to that practise and on such a scale, have been forced to do so. And have been pleasantly surprised with the results.
MT:

 

1:00:00

 

Yeah, indeed, and so by trusting your people you get more out of them. Simple as that. And so now there might be some negative aspects of working from home, one might be mental health consequences. But I think working from home is here to stay now as part of the flexibility menu that will be available for lawyers more broadly. And so ultimately, we come to better outcomes through trust; we come to better outcomes through tailoring solutions to individual needs. If you take a performance approach, you will end up there. If you take a compliance approach, you might end up somewhere else.
DT:It’s really looking at it as an opportunity rather than as a risk minimization kind of perspective. And I suppose it all comes back to measurement, in terms of how we measure performance as well, because if you have that fixed mindset around measuring performance through billable hours it’s difficult to see the opportunity here as well.
MT:

 

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Yeah and look I think it’s inevitable that we’re going to have to do away with billable hours. I think a number of firms are now experimenting with how to do that. I think the key is to change the back of house systems first and then the rest will follow. If we stop measuring people through an opportunity cost mindset, then, which is driven by billable hours if they weren’t doing this work at this charge out at this rate, they couldn’t theoretically be doing some other work at full rate, and you can see how very quickly that descends into a blame culture. You know if you’re not doing enough work it’s because you’re at fault rather than because you’re not being provided with an opportunity to do more work. None of it is productive right, none of it is constructive. Now I’ve been actively trying to tackle that issue in my firm for close enough to 2 years, they’re not easy problems to solve but I’m determined to do it. I’m determined to fix it. Now I hope that the entire profession moves away from this concept of billable hours for the mental health of people, for the sustainability of the profession, for an overall you know quality-based outcome so we can retain good quality people and progress them through their careers and deliver to the younger generations the same mentoring that we have been recipients of as current leaders in the profession.
DT:

 

 

 

 

1:03:00

I really enjoyed this conversation today I feel like I came into the conversation thinking that we might talk about employee assistance plans or mental health leave but the reality is that addressing mental health in our profession, and in many others like it, there isn’t a one size fits all approach there isn’t a panacea. And creating an environment in which our employees can not only be free of mental health hazards, but indeed flourish in their mental health isn’t a matter of putting in place a control or putting in place a policy, but a journey of creating a workplace that adapts to the individual needs of that employee. That is a journey with many steps and it requires insight into what those individual workers need, but for our listeners who might be taking the first step on that very long journey of adapting their workplace design to be more conducive to mental health, what is the first step that they should be taking on that journey?
MT:

 

 

 

1:04:00

Have a conversation. Have a conversation with your people around mental health. If it does nothing else, it signals to them that you care about that issue. It empowers them and gives them permission to raise the need for flexibility or accommodation to suit different levels of mental health. Start with empathy and an appreciation that actually we don’t talk about it, but every single human being has a good day, a bad day, and a somewhere in between day. And if you start with that kind of empathy and then seek out those conversations where you can reinforce the fact that you’re a caring environment, you’re here to help, that you care about them as human beings not just as workers or walking billable hours. And so, if you start that conversation good things come off that. And you’ll find common ground, you’ll find accommodation on both sides. You’ll find that actually this is not as complex as it seems. It’s something that is a partnership between you and your workforce that’s grounded on trust and mutual respect.
DT:

 

1:05:00

I know that my interest in having that conversation in our own firm has definitely been renewed. If our listeners who would like to learn more about mental health in the workplace, Michael Tooma’s book, ‘Michael Tooma on Mental Health’ has been published this year by Wolters Kluwer and it’s available in all good bookstores and online from the Wolters Kluwer website. Michael Tooma thanks so much for joining us on Hearsay.
MT:Lovely to join you, thanks David.
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1:06:00

 

 

 

You’ve been listening to Hearsay The Legal Podcast. I’d like to thank our guest Michael Tooma, managing partner of Clyde and Co for coming on the show. Now if you liked this episode about mental health and work health and safety, listen to our episode about the employment law dimensions of working from home with Nicola Martin from McCabe Curwood, which also touches on some WHS issues. Or, for something different, our episode about advising vulnerable clients touches on advising clients who are suffering from mental illness. If you’re an Australian legal practitioner, you can claim 1 CPD unit for listening to this episode. Now whether an activity entitles you to claim a CPD unit is self-assessed, but we suggest that this episode constitutes an activity in either the substantive law or practice management and business skills field, take your pick. If you’ve claimed 5 CPD points for audio content already this CPD year, you might need to access our multimedia content on the Hearsay website to claim further points from listening to Hearsay. Visit htlp.com.au for more information on claiming and tracking your points through our platform. The Hearsay team is Tim Edmeades our audio engineer, Kirti Kumar our chief researcher, Araceli Robledo our business development advisor and me, David Turner. Nicola Cosgrove is our executive producer and director who brings it all together. Hearsay The Legal Podcast is proudly supported by Assured Legal Solutions – making complex simple. You can find all of our episodes as well as summary papers, transcripts, quizzes and more at htlp.com.au. That’s HTLP for Hearsay The Legal Podcast.com.au. Thanks for listening.