2015.63: Functional Mindfulness for Trial Lawyers I

 Posted on July 09, 2015 in Uncategorized

This is totally adorable:

Jim, a litigator with a busy practice, spends 20 minutes each morning practicing something called mindfulness meditation.

Meditation is great, but meditation is to mindfulness as "litigators" are to trial lawyers.

I've written about mindfulness before; the topic is getting some attention now. Scott Greenfield sees two threads of discussion: a) stress release for lawyers (which should be uncontroversial; and b) "put[ting] personal happiness ahead of... responsibilities,... claim[ing] under the guise of mindfulness that stress is an excuse to fail to do your job, to fail to fulfill your responsibility to your client." Scott picks this quote as an exemplar:

Practice cognitive restructuring. Recognize that your thoughts are not facts. Let's imagine you're at a hearing and the judge says, "Well, what about the decision in Smith vs. Jones? Why shouldn't that apply in this case?" Assuming you have no idea what the judge is talking about, your mind might think, "I didn't prepare enough. I'm a bad lawyer." You can use cognitive restructuring and challenge your thoughts by saying, "I spent all the time I possibly could to prepare for this hearing. I did the best I can. And I am a good lawyer."

While you probably guessed, "Stuart Smalley," it‘s by Jeena Cho, who "offers training programs on using mindfulness and meditation to reduce stress while increasing focus and productivity." But it isn't couched as mindfulness advice, so it might not be the best example for Scott to choose.

(If it is intended as mindfulness advice, it's shitty mindfulness advice. The mindful lawyer in that situation isn't going to be thinking about whether she's a bad lawyer or a good lawyer. She's going to be lawyering, and saving judgment for the postmortem, when she will, if she is worth her salt, accept that she screwed up and resolve not to do so again, even though the path to that acceptance and resolve is through regret and self-doubt. Our mistakes that hurt our clients should hurt us too.)

There is nothing mystical or magical about mindfulness. It's just an altered mental state, "altered" not because it's unnatural, but because mostly we spend our lives outside it, judging ourselves or thinking about what happened before or what happens next. Before we called in mindfulness we called it "the zone," or "the moment," or "the flow," as in, "I was in...." It's a focus on the job at hand, and only that.

Meditation is easy. When you meditate, there is no job at hand, except to breathe. You get into the zone, focusing only on your breathing and then-since your breathing will, left alone, take care of itself-on nothing. Meditation can teach you what mindfulness feels like.

The trick is getting into that focused state, and staying there, when there is a difficult, stressful, and frightening job to be done. Being mindful while you are sitting on a cushion in your living room focusing on your breathing is a whole nother thing than being mindful when your client is facing life in a cage, a cop is making shit up on the stand, the judge is threatening you with contempt, and your second chair just passed you a note saying that your key witness decided not to honor her subpoena.

Complete focus on the job at hand in that situation is functional mindfulness. It's a third way, which Scott doesn't acknowledge, probably because the hucksters of mindfulness for lawyers are not selling it.

Easy solutions sell. Stress relief sells. Affirmation sells. Functional mindfulness doesn't sell, and I'm going to show you why.