Mindfulness is another trend driving change in the law. Here’s DU Law professor Debra Austin’s definition from her Killing Them Softly law review article:
“[M]indfulness is attention without labels, ideas, thoughts, or opinions. Mindfulness means “being fully aware of something” and paying attention to the moment, with acceptance and without judgment or resistance. It requires “emotion-introspection rather than cognitive self-reflection,” and specifically does not involve the analysis of thoughts or feelings. Mindfulness is a form of self-understanding involving self-awareness rather than thinking.”
My CLE workshops don’t talk about or teach mindfulness, but they do require comparable reflection and self-awareness. Occasionally someone worries out loud that too much of this kind of thing will make you lose your edge, become less zealous as an advocate.
In other words, mindful lawyers are wimps.
I don’t know about you, but the most mindful people I know are rarely comfortable to be around. Penetrating, insightful, honest, no-nonsense, yes. Laid back and careless, no. The “mindfulness is for wimps” assessment no doubt comes from the Legal Borg, which has its own issues with fostering cognitively- or chemically-impaired lawyer brains, and never mind that there’s plenty of research and experience out there to support the notion that mindfulness provides a competitive advantage.
Judging from the strength of the mindfulness trend, this is another area in which the Legal Borg is losing its grip on the legal profession’s cultural ethos. An ABA Journal article last year announced that Mindfulness in Law Practice is Going Mainstream. As evidence of that, check out these resources:
Mindfulness in Law: Articles, books, websites, exercises, with categories for bar associations, law schools, the judiciary, and lawyer groups.
The Mindful Lawyer: More programs, resources, events, and articles, collected by lawyer and educator Scott Rogers, founder and director of the Institute for Mindfulness Studies, the University of Miami School of Law.
How will the mindfulness trend change the law?
- We will see the emergence of new “best practices” that address and reverse areas of chronic dissatisfaction with the law among both lawyers and clients. For example, toxic stress and intentional destruction — both uncivil behavior toward other lawyers, and self-destructive lawyer responses to stress — will simply no longer be tolerated in the legal profession or the legal marketplace.
- In their place, mindfulness practice will foster a new kind of “thinking like a lawyer” that will create new laws and legal procedures characterized by the kinds of benefits mindfulness produces in the individuals who practice it — e.g., decisiveness, clear thinking, intolerance for “brain noise” (drama, distraction, histrionics), and an uncanny awareness of invisible factors driving behavior.
- As the law takes on the characteristics of mindfulness practice, the result will be more self-appraising, self-guiding, and self-correcting pathways to legal end results. The result will be more efficient and satisfying legal options and outcomes.
- A new equity system — maybe formal, certainly informal — will arise in which the process of getting to results through informed collaboration will be valued, encouraged, and enforced.
Next in our excursion into futurology, we’ll look at the increasing polarization of three divergent pathways in legal practice and the law: commoditizing, expertise, and mastery.