“Why did this happen, Devan?”

That was the opening line of an article I wrote in February 2023, titled “Practicing Law with ADHD: Call me a JDHD” where I described a January 2020 meeting with the senior partners of my firm who were concerned about my performance. It was a short, anecdotal, piece about ADHD’s impact on my practice as an insurance defence litigator. Its publication resulted in a flood of lawyers reaching out about their own stories and questions about ADHD.

That flood is more of a steady trickle these days. I continue to field e-mails, calls, and DMs from students and lawyers who have seen the article, or the “JDHD” tag in my LinkedIn profile. A recent call with a new lawyer prompted me to write this article, because a lot has changed since I wrote that article.

This article is part ADHD primer, part cautionary tale, and perhaps part “old man yells at clouds.” I am no expert, and much of this is grounded in my personal experience, but hopefully one of those parts will be useful to you.

What ADHD is, and what it isn’t

Attention Deficit Hyperactivity Disorder is a neurological condition with symptoms arising from impaired executive functions that can affect all aspects of a person’s life. ADHD is a terrible name. It is rarely a “deficit” of attention that’s the problem. It’s the variability of that attention. People with ADHD tend to have difficulty with motivation, variable focus, working memory, and impulse control.

ADHD is not a failure of “work ethic” or “will power”. It is generally accepted as being genetic. You’re born with it. Historically, women were (and continue to be) significantly under diagnosed compared to men. It can manifest in a variety of ways, from the stereotypical hyperactive gremlin to the unhurried daydreamer. Everyone has ADHD traits. It’s the impairment that distinguishes the diagnosis.

ADHD & Insurance Defence

Insurance defence work is one of the best areas for someone who has ADHD and simultaneously one of the absolute worst.
Let’s start with the good:

1. Individuals with ADHD are motivated by novelty, urgency, and challenge. When you are a brand-new lawyer, everything is novel, and everything is urgent. When you become more senior, you tend to have the flexibility (and the client trust) to take on challenging files with increasing complexity.
    
2. If you dig deep enough on a loss, there is probably an insurer in the mix. This means insurance defence can be a varied practice. If you play your cards right, you’ll rarely be bored. If you practice SABS litigation, you get to re-interpret the regulations every 5-7 years whenever a government decides to make “minor” adjustments. Or maybe when the Court of Appeal picks silos over fruit baskets when assessing benefit deductibility. Coverage is nothing but responding to creative arguments by opposing counsel as to why a loss should or should not be excluded under a policy. Before my move to LAWPRO, I was developing a practice that lived at the overlap of employment law, long-term disability benefits, personal injury and coverage. It is an area that can abound with novel, challenging, and urgent files.
    
3. Client reporting requirements often provide the structure and clear expectations that individuals with ADHD need. There is rarely guess work as to when a report is due because there is a literally a manual on how to handle your institutional client. You just have to remember to read it. As an aside, if you haven’t sent your client an e-mail on that file in the last 60-90 days, it’s time to send a quick update.

But it is also full of traps:

1. Insurance defence practice can be incredibly repetitive and downright boring. This is especially true in the “commodity” practice areas. Tasks that do not involve novelty, urgency, or challenge, will usually end up on the bottom of the “to-do” list. Sometimes, they will fall off entirely. As lawyers transition from “junior” to “mid-level”, you may find yourself stuck doing some of the repetitive “junior tasks” because you are not senior enough to warrant a junior, or a full time clerk. You may find yourself avoiding, and ultimately forgetting, those tasks.
    
2. It is a field where many decision makers view ADHD (and other protected grounds) through the “lack of will power & discipline” lens. The structure, hierarchy, and economics of many private practice firms are not conducive to a “JDHD” type practice. Fortunately, things seem to be trending away to something better.
    
3. Long cycle times on files is another trap. Your average personal injury file is litigated in starts and stops. There’s the initial pleadings and report to a client (Novel! Urgent!). Then nothing for months when the parties finally find agreeable dates for examinations for discovery. Then there’s another 12-24 month wait as you chase down undertakings and wait for the plaintiff to pass the trial record. Then a further wait for the pre-trial, and trial. In the “lull” times, there is a tendency to let matters lie unless the plaintiff does something to move it forward. There is nothing urgent, novel, or challenging to capture your attention. Then, when the next step appears in your calendar for next week, or the plaintiff serves an expert report 91 days before pre-trial and you can’t get a defence medical booked for the next 12 months, you find yourself wondering if you should call LAWPRO.
    
4. Rightly or wrongly, insurers tend to receive less leeway for these lapses by Courts and Tribunals. This is especially a concern in personal injury litigation and the new Rule 53.03 requirements for timely expert reports. The consequences of failing to obtain a timely expert report can be devastating for a defendant, just the same as it can be for a plaintiff. And, as one of LAWPRO’s research lawyers, I can tell you, insurers can, and will, pursue negligence claims against their defence counsel.

The “Yelling at Clouds” Part

In 2023, I gave the following advice:

1. Do more of what you’re good at;
2. Get rid of what you’re bad at;
3. Figure out what you need to succeed. Ask for it;
4. It’s an explanation, but it’s not an excuse;
5. You deserve to be happy. Even if it’s working somewhere else.

I still think that’s good advice. But I want to emphasize a final point.

In the two and a half years since I wrote my first article, more lawyers have publicly announced their status or taken the steps to get diagnosed. I hope this means there is a lessening stigma among the legal profession. I hope that employers are not only taking their obligation to accommodate seriously but also realizing that with appropriate supports that one under performing associate could become their next partner. At the same time, I have seen a proliferation of “hot takes” as to what ADHD is, and isn’t, and a frequent misunderstanding of an individual’s responsibility to their client.

You still have ethical and legal obligations to your client. “Whoops, that’s just my ADHD brain!” is cold comfort to a client when you have missed a limitation period to commence a claim for contribution and indemnity, or obtain a relevant expert report.

It is incumbent on lawyers, and their mentors, supervisors, and employers to recognize and take the steps to fully understand that ADHD is a medical condition that presents on a spectrum. While there is rarely a “one size fits all” approach, there are absolutely approaches that are supported by empirical evidence. Information about ADHD has never been more readily accessible. But so has misinformation. In the era of ChatGPT and social media influencers, we need to be ever diligent in vetting our sources of information. For those of us who are diagnosed, or think they may meet the criteria, we need to ensure we are learning about the condition from credible, and reliable, sources. After all, you wouldn’t accept a Threshold opinion from a Chiropractor.

ADHD is not a monolith. The severity of ADHD symptoms varies and falls along a spectrum. Some people have serious impairments early on in life that require significant support and medication use. Others may have mild symptoms that might not result in noticeable impairments until the complexity of balancing life, work, and everything else overwhelms their ability to cope. Most will fall in between.

Some individuals may feel ADHD is their “superpower” because when you are “on” you are really “on” and with their diagnosis came the knowledge and resources to manage their symptoms to be beneficial to their practice. Others rightly see their ADHD as a “curse” that has derailed their lives at multiple points. Keeping symptoms at bay will be a constant struggle. Again, most will fall in between.

Anecdotal stories and advice are often helpful in making us feel seen or recognizing that we are not alone in our struggles. But the work does not stop there.

The Wrap Up – Taking My Own Advice

It has been five and a half years since I was diagnosed with ADHD. Learning about a diagnosis later in life hasn’t really changed me but it has changed how I live my life and practice law.

I took my own advice. At LAWPRO I am doing more of what I’m good at. I often describe my current role as asking, “Have we thought about it from this angle?” No doubt to the frustration of my colleagues and our external counsel alike. My role as a research lawyer allows me to work on files where nearly everything across my desk is novel, urgent, or challenging.

I now do less of what I am bad at. I left behind the dockets, administrative work, and repetitive elements of my private practice role. I figured out that what I needed to succeed and manage risk was a practice where I had the autonomy approach files from my unique perspective, while operating in a supporting role.

Most importantly, I am happy in my new role, even though it meant leaving behind my old colleagues in private practice. I still get to feel like I am “in the trenches” by helping on active litigation files. Yet I have the flexibility to take on “non-billable” work like speaking at conferences, or writing articles, that would have been “appreciated” but not necessarily “valued” in the same way as billable work.

Finally, by relying on credible and reliable sources, I can feel confident in being open about my diagnosis and my experiences. While I can’t say I’ve found the silver bullet for always staying on top of my ADHD, I can at least share what works for me and is supported by the literature. And I can hope that being open helps combat the stigma that undoubtedly still exists in the practice of law.

So while I am not an expert, maybe this anecdotal piece and the advice it contains will help someone practicing in insurance defence to make decisions and changes they need to succeed. Or at the very least, remember to send that e-mail to that one client with a 60 day update.

The opinions expressed in this article are those of the author(s) and should not be taken as legal advice. Any errors, omissions or inaccuracies are the responsibility of the author(s). Content in Hearsay is edited for spelling, grammar and basic punctuation only.