The Art of Being Mindful in the Legal World: A Challenge for Our Times
You may be asking why a senior U.S. district judge is writing about mindfulness practice. That is a fair question. I will answer it directly. For me, it started in early 2001 when my cardiologist told me I needed open-heart surgery for a mitral valve repair. This surgery was not going to be a walk in the park. I wondered how in the world did I get into this situation, and what could I do to minimize future medical problems? It was at that point that I started to learn about mindfulness practice and meditation in earnest. It occurred to me that “heart surgery” was a metaphor for changing my life.
After I came back to the bench, I experienced a heightened awareness of the relationship between stress and civility. I found that mindfulness practice helped me do my job better, and also helped the lawyers relax and perform more effectively. No, I am not telling you that mindfulness is a silver bullet. It is not a pill you take once and you are cured. It is about purposely changing your way of living every day. Some days are better than others, but that is okay. I came to better appreciate that my job, as a judge, was to assist lawyers and others to do their jobs without my adding unnecessarily to their stresses. I am not here to tell you that I always have been successful. What I am here to do is pass on some important lessons that I have learned in the hope that my experiences may be of some benefit to you and to our profession.
The Relationship Between Mindfulness, Health, and More Effective Lawyering and Judging
My topic is the relationship between our health and mindfulness; that is, the ability to live in and enjoy the present moment in a civil manner. Why should this topic concern lawyers and judges? We constantly hear, both as lawyers and judges, about the “lack of civility” in the practice of law. The Florida Bar membership surveys continue to reflect that, besides earning money, the most significant concerns that face us as lawyers and judges are balancing family and work, high stress, and lack of professionalism and ethics. In June 2013,the Florida Supreme Court recognized that “[s]urveys of both lawyers and judges continue to reflect that lack of professionalism is one of the most significant adverse problems that negatively impacts the practice of law in Florida today.”1
What have we done about it as a profession? First, the Florida Supreme Court amended the Oath of Admission “to recognize the necessity for civility in the inherently contentious setting of the adversary process.”2 Now, as part of our oath, we pledge to opposing parties and their counsel, fairness, integrity, and civility…not only in court, but also in all written and oral communications.
Second, on June 6, 2012, the Florida Supreme Court adopted the “Code for Resolving Professionalism Complaints.” The code creates a structure for “affirmatively addressing unacceptable professional conduct.” Violators can be sent to ethics school, professionalism workshops, stress management workshops, or, in serious cases, the Attorney Consumer Assistance and Intake Program may forward a complaint to The Florida Bar’s Lawyer Regulation Department for further consideration.
I do not take issue with what the Florida Supreme Court has adopted and implemented. I just do not think it goes far enough to address the root causes of lack of civility and professionalism. My premise is that the root cause of incivility and lack of professionalism is the extreme and cumulative stresses that we, as lawyers and judges, find ourselves coping with daily. This is especially true given our uncertain and challenging economic times, and the increased alienation we experience from each other because of our technology. I believe there is a more comprehensive way to deal with the problem, and, in this article, I offer three specific recommendations.
First, let me be clear. In offering my recommendations, I am not asking you, as lawyers or as judges, to do anything to diminish your effectiveness or to give up your edge. To the contrary, in addition to managing stress, improving health, and increasing civility, my recommendations are directed to enhancing your skills and effectiveness. Does this sound too good to be true? Not so. What I am suggesting to you is no more than how martial arts masters deal with moments of intense conflict; that is, from the center, flowing with the breath. We can apply these same martial arts skills to the practice of law and achieve an energized calm, and with it, a proactive and focused choice that adds to our power to tread through the turbulent storm.
Recommendation 1: Teach Lawyers and Judges About the Medical and Physiological Effects of Stress So We Can Become More Self-Aware
Problem? What problem? Let us acknowledge that we are adrenaline junkies. We are drawn to a profession that, at times, gives a rush by challenging us often in dramatic ways. Therefore, some degree of stress is inherent in what we do, and many of us can cope pretty well most of the time. But, what are the medical effects of extreme, cumulative stress? We all have seen them in action or experienced them. They include inappropriate anger, impatience, overreaction, anxiety, fear, irritability, and resentment (just to name a few). People under extreme and cumulative stress are overloaded with more than they can cope. They may be unable to concentrate or think clearly. They may be constantly active but accomplish little.
Yes, we, as judges, are susceptible, too. As noted by author Isaiah M. Zimmerman, “Judges work at the convergence of powerful demands…heavy dockets; restrictions on speech and behavior, intense media exposure; public ignorance of the role of the courts, and the relative isolation of the judicial position….”3 May I also add that, in Florida, our state colleagues face elections, bar polls, grievance procedures, never-ending pro se cases, and peer pressure to dispose of cases quickly. These challenges create unique stresses, personally and professionally. Lawyers are sometimes surprised that a judge’s life is not so easy as it appears.
Here is what the medical literature says about the effects of extreme stress. There has been a revolution in medicine concerning how we think about diseases of the body and mind. It begins with recognizing the interaction between the body and mind and the ways in which emotions and personality can have a tremendous impact on the functioning and health of virtually every cell in our body. It is about the role of excess stress in making us more vulnerable to disease, including psychological impairments, or making diseases that we are coping with that much worse. We have come to recognize the vastly complex intertwining of our biology and our emotions, the endless ways in which our personalities, feelings, and thoughts both reflect and influence the events in our bodies.
Put simply, excess stress can make us sick or sicker. Perhaps it is more correct to say that excess stress increases our risk of getting diseases that make us sick, or if we have such a disease, excess stress can increase the risk of our bodily defenses being overwhelmed by the disease. Medical research has shown that chronic stress is linked to six leading causes of death: heart disease, cancer, lung ailments, accidents, cirrhosis of the liver, and suicide. Besides fatalities, when we become exhausted, the visible effects are evidenced by bad behavior that we label as “incivility.”
A large body of evidence suggests that stress-related disease, both physical and emotional, emerges, predominantly, out of the fact that we so often activate a physiological system that has evolved for responding to acute physical emergencies, but we turn it on for months on end, worrying about our clients, our cases, our economics, our careers, and our families. We worry about how to be the “best” at all of our endeavors, and are confounded as to how to balance them.
What makes things worse is that the stress response may be mobilized not only in response to physical or psychological pressures or insults, but by the expectation of them. If we repeatedly turn on the stress response, or if we cannot turn it off at the end of a stressful event, our stress-related problems simply compound and grow worse.
Another feature of the stress response is that, with sustained stress, our perceptions of pain become blunted. We numb ourselves and are not even aware of what we are doing, how we are doing it, or why we are doing it. It becomes habitual. In fact, a well-known Johns Hopkins study has found that lawyers are more prone to depression than members of any other profession. Given all of the scientific explanation, is there any wonder that lawyers and judges often can be “uncivil” to each other and exhibit behaviors in court and in life that are unacceptable and unproductive?
Recommendation 2: Teach Lawyers and Judges How To Better Cope With Stress Before We Fall Over the Cliff
The key question: Are there available tools we can use before extreme stresses take over and affect our health and well-being? According to Time Magazine, “Scientists have been able to prove that meditation and rigorous mindfulness training can lower cortisol levels and blood pressure, increase immune response and possibly even affect gene expression.”4 In fact, “Scientific study is also showing that meditation can have an impact on the structure of the brain itself.”5 One answer to better health, then, lies with meditation and rigorous mindfulness techniques.
What then is “mindfulness” and how does it work? Simply put, mindfulness is mental training of the brain. It is the ability to pay attention in a particular way in the present moment and without self-judgment. It is about obtaining a mind of calmness and clarity, with a good self-attitude, regardless of the situation. It is an indispensable tool for coping — both emotionally and practically — with the daily onslaught. It is about silencing that nattering voice in your head and cutting off that internal dialogue that is negative and self-referential.
What is your reaction to this information? Does it all sound too “new age”? Is your gut reaction that if you learn mindfulness you will be seen as “weak” by your partners, your clients, or the courts? “Law practice,” you say, “is dog eat dog. I have to earn a living. That is my reality.”
Here is my response: Whether you realize it or not, mental training tied to meditation and mindfulness practice is happening in Fortune 500 companies, with Silicon Valley entrepreneurs, and even with Pentagon chiefs. It is a revolution in process. Would it surprise you to learn that in 2012, there were 477 scientific papers published on mindfulness and more each year that has followed? Would it surprise you that even a U.S. Congressman, Tim Ryan, has published a book, A Mindful Nation: How A Simple Practice Can Help Us Reduce Stress, Improve Performance, and Recapture the American Spirit ? New age sounding or not, mindfulness practice is becoming mainstream and is taking root even in the practice of law.
Here is what I am suggesting. I am not asking you to change your reality or to diminish your earning capacity. I am suggesting that you have the freedom to choose how you deal with your reality, and, in turn, increase your effectiveness, health, and earning capacity. First, take a good look at your present-day reality. This alone is no easy feat. It is like taking a step backward and honestly observing, with some detachment, what you are doing and how you are doing it. Then, make a choice about what kind of life you want to live.
What do you choose? Every time you act or react, some choice is made. Sometimes, these choices are conscious, and sometimes they are not. I am talking about choosing to increase your awareness that you have the power to choose another way to deal with your stresses.
Yes, admittedly, we carry within ourselves many factors that we believe limit our freedom to choose and which obscure our awareness. There are layers of emotions and physiological tendencies that we have formed over a lifetime. Yet, through a rigorous mindful practice, it is possible to take responsibility for all that we are. We can come to the transformative recognition that we are always the one doing the choosing, and that our choice can be to change into a greater self, and to do this right here and right now. Granted, this is not easy. It takes real courage and effort to break old habits. Even then, we can slip back into our old ways. No problem. We simply refocus and plow ahead. It is really a moment-to-moment commitment.
It Is as Simple as Breathing
There are many techniques to help us change. At the heart of many of these techniques, there is one constant: the awareness of the breath through meditation. We are breathing continuously from the moment of birth to the moment of death. Breath and life are synonymous. It is the bridge between your mind and your body, but breathing is not continuous. There are gaps. The breath goes out, then for a moment, breathing pauses. Then breath comes in. In that gap between breaths, anything is possible. Sincere observation and attention will help you feel the gap. If you feel the gap, you can choose to use that moment to calm the mind and your turbulent emotions and interrupt your “mind-streaming” — that constant source of mental junk mail. You just do not have to believe your own thoughts. How do you do this? Simply focus on your breath and observe its passage. The point is this. If you can train yourself to keep attention on something as neutral as your breath, then you can keep your attention on anything else.
You can achieve an amazing goal: observing your body, your thoughts, and emotions in any stressful situation before you react, you can respond more effectively and go from compulsion to choice. In sum: stop, breathe, notice, reflect, and then respond. This is the formula for the more effective and mindful practice of law, whether you are arguing in court, sitting on the bench, or dealing with difficult clients, partners, or other lawyers. This is empowerment. When you act boldly, there will be pushback in different forms, so to complete what you started, you need to relax, reaffirm your original intention, and hold your seat.
Here are five steps to mindfulness meditation to help you become more effective and healthier. First, sit with a good posture and close your eyes. Second, notice your breathing, but focus on the sensation of air moving in and out of your lungs. Third, as thoughts come into your mind and distract you from your breathing, acknowledge those thoughts and then return to focusing on your breathing each time. Fourth, do not judge yourself or try to ignore distractions. Your job is simply to notice that your mind has wandered and to bring your attention back to your breathing. Finally, start by doing this five minutes a day for a week. Then try 10 minutes, and so on.
I grant you that it is challenging to maintain a mindfulness practice particularly when you are faced with stressful circumstances. One of your first thoughts will be, “I cannot do this.” Staying with your breath and observing what is happening to you in the moment can seem impossible. It is not impossible. Do not be upset if thoughts come and go. Just observe them and how your body reacts. The more you meditate, the easier it will be to keep your attention where you want it.
You may say, “Thank you, Judge Gold, but I do not have time for all of this in my busy life. I do not want to take on yet another self-help project to feel guilty about.” You may say, “I am perfect the way I am. I am doing just fine. Just ask anybody.”
Maybe you are one of the lucky ones. If so, I offer my admiration. For the rest of us, I can understand your resistance. Old habits and patterns are hard to break. You may think you are just fine and see no need to change, but consider this: Everything in life is changing all the time, including you, whether you realize it or not. It is just that we look for ways to believe we are exempt from it. So, I suggest you breathe as though your life depended on it. It does. We are talking about a critically important priority for your health, your civility, and your well-being. You can do this. There are lots of ways to fit meditation into your busy life. With practice, it might just help you use your time better.
How do you reinforce your efforts to change? This question leads to my final recommendation.
Recommendation 3: Take Control of Our Lives with the Help of Allies and Reclaim the Nobility of the Profession
We cannot easily make real changes alone. It takes courage to move against the ingrained resistance of our profession. The legal profession inherently discourages changes that may help us individually, but may be perceived by some as “weaknesses” potentially threatening the economic bottom line or how we are viewed as judges. Like it or not, our profession is already changing rapidly and significantly. Clients are unhappy paying legal fees based on billable hours; associates are unhappy with unreasonable professional demands; partners are unhappy with their compensation or status and readily move their “book of business” across the street. Everyone complains about the lack of a balanced life and the effects of practice on their health and relationships. The level of anger and frustration is readily evident by incivility and lack of courtesy that we experience on a daily basis.
It is time to speak the truth about such things. What has been missing in our profession is an organized means to join with others with an interest in the subject matter at issue. In response, the Miami-Dade County Bar Association, in conjunction with the Miami-Dade Federal Bar Association, has created a Task Force on the Mindful Practice of Law. There are three components. First, an information component that offers a website and newsletters, identifying mindfulness-related resources. Second, the associations have held conferences and workshops on health and mindfulness practice. Third, regular meetings are offered to interested judges and lawyers to meditate together and to discuss how to live and practice mindfully. One area of discussion is how we can acknowledge that all of us are in this together, and that we need to cut each other a break in court and in life. These issues can never be addressed too soon; law schools are introducing mindfulness into their curriculum, with the University of Miami’s Mindfulness in Law Program serving as a model for schools across the country. Alongside courses offered to students as part of the curriculum, CLE programs are offered to members of the legal community.
Where will all this lead? Perhaps to redefining what it means to practice law. Perhaps to returning to those values that caused many of us to become lawyers in the first place. The invitation is hereby extended to other local bar associations, The Florida Bar, and to the various Florida judge’s conferences to join in these efforts and to create a statewide network of mindfulness practitioners and resources.
Will mindfulness really work in a law firm? One major Florida firm says “yes.” The Berger Singerman law firm has undergone a seven-week mindfulness training course similar to the one offered by Google to its employees. The firm leadership was so impressed with the results that it funded and sponsored its own conference for judges and lawyers that it called, “Raising the Consciousness of the Bench and Bar.” When asked at the conference about its purpose, the firm’s senior partner answered, “We want to share it; not keep it a secret. We yearn to do what we do in service of something larger than ourselves.”
Can, and should, the experience of Berger Singerman be replicated elsewhere? Can we meet the challenge of serving something larger than just ourselves? The publication of this Florida Bar Journal offers reasons to believe that the potential to accomplish meaningful change is upon us. What follows are anecdotal experiences of practitioners who explain how mindfulness practice has affected them. Meanwhile, it comes back to you. Are you ready for a change? It is like the famous saying from India: “Wisdom is not something you learn; it is something you become.” So, come along for the ride. Let us see where we go.
1 In re Code for Resolving Professionalism Complaints, 116 So. 3d 280 (Fla. 2013), available at https://www-media.floridabar.org/uploads/2019/03/306901_code20for20resolving20professionalism20complaints20sc13-68820updated.pdf?OpenElement.
2 In re Oath of Admission to The Florida Bar, 73 So. 3d 149 (Fla. 2011), citing In re Snyder, 472 U.S. 634, 647 (1985), available at https://casetext.com/case/in-re-oath-of-admission-to-the-florida-bar.
3 Isaiah M. Zimmerman, Helping Judges in Distress, 90 Judicature 1, 15 (July/August 2006), available at http://www.judicialfamilyinstitute.org/pdf/Zimmerman_901JudgesDistress.pdf.
4 Kate Pickert, The Mindful Revolution: The Science of Finding Focus in a Stressed-out, Multitasking Culture, Time (Feb. 3, 2014).
5 Id.
Judge Alan S. Gold is a senior U.S. district judge for the Southern District of Florida. Prior to his confirmation in July 1997, Judge Gold was a circuit judge in the family and criminal divisions of the Florida 11th Judicial Circuit Court and before that, he was a principal shareholder in the Greenberg Traurig law firm. He co-founded the DBCA/FBA Mindfulness in Law Task Force and is a frequent lecturer on mindfulness and the law for national, state, and local organizations.
