The Future of Law (Part Ten): Mindfulness Doesn’t Mean Wimpy Lawyers

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.

The Future of Law (Part 6): What’s Trending?

We’re looking at trends in the law, and wondering out loud where they might be going. Since we’ve been talking about the democratization of knowledge, we’ll let Wikipedia tell us about trend analysis:

“Trend Analysis is the practice of collecting information and attempting to spot a pattern, or trend, in the information. In some fields of study, the term “trend analysis” has more formally defined meanings.”

The anonymous article writers (they’re from the U.K., I’d guess, because they spell “behaviour” with a “u”) tell us that some kinds of trend spotting are all about the numbers:

“In project management trend analysis is a mathematical technique that uses historical results to predict future outcome. This is achieved by tracking variances in cost and schedule performance. In this context, it is a project management quality control tool.

“In statistics, trend analysis often refers to techniques for extracting an underlying pattern of behaviour in a time series which would otherwise be partly or nearly completely hidden by noise. A simple description of these techniques is trend estimation, which can be undertaken within a formal regression analysis.”

We learned regression analysis in the MBA program. I used it for years in my practice. It told me our revenues were somewhat seasonal. I might have figured that out some other way….

And then there’s Investopedia’s definition of trend analysis, which is a cousin to project management. Both try to predict the future by what happened in the past — driving forward by looking in the rearview mirror. Good luck with that.

Finally, Wikipedia sort of gives up and says

“Today, trend analysis often refers to the science of studying changes in social patterns, including fashion, technology and consumer behavior.”

That’s more like what we’re doing in this series, although I wouldn’t call it “science.” Art on a good day; guesswork any other.

Finally, here’s a trend analysis term I’d never heard until Wikipedia told me about it:  coolhunting. That sounds like those messages I get online:  See what’s trending on Facebook! See what’s trending on Twitter!  Usually it’s some celebrity’s off-camera or off-field drama. I always wonder if I’m supposed to care.

The point is, someone cares, about all of this. And if that someone cares enough to jump into a trend, and enough other people do the same, then we’ll all need to care, because the trend just moved from outliers to early adopters to mainstream. At that point, we’re all going along for the ride, like it or not.

Trends aren’t destinations, they’re movements of human energy. As soon as people start engaging with the trend, they affect where it’s going — shaping, redirecting, resisting, thwarting, or bulldozing it through. Trends are collective; we’re not the only ones steering the ship. If we jump onboard, there’s no assurance we’ll end up anywhere we think.

In the coming installments of this series, we’ll continue to look at changes in “social patterns, including fashion, technology and consumer behavior” (well, maybe not fashion) that are affecting the law, and make predictions about them.  Think of these not as possible outcomes, but as energies. Some will accelerate in size, speed, and impact — those we’ll need to reckon with. Others will fade away — like all that momentary coolness on Facebook and Twitter. Along the way, some of us might want to dive in and see if we can shape some of these trends the way we’d like.

Kind of like the rainstorm game I used to play as a kid, damming up water pouring along the gutter.