Mindfulness in Law and the Importance of Practice
This special issue of The Florida Bar Journal includes three articles that address important perspectives on the benefits of mindfulness to attorneys and judges and the meaningful role it can play across society. It also includes a collection of first-hand accounts, contributed by attorneys and judges who practice mindfulness, on the practical benefits of mindfulness, along with tips for bringing it into the busy work day. In this article, I aim to bridge the larger perspectives of mindfulness with first-hand accounts by offering you a roadmap for your own personal practice — a journey that many lawyers and judges find to be deeply fulfilling and of great value to their lives, personally and professionally.
To help illuminate this path, I proffer five stages experienced by many in the legal profession who have established a mindfulness practice. These five stages consist of ignorance, confusion, familiarity, embrace, and practice. Importantly, there is nothing I can offer that will advance your progress on the mindfulness path — for it is a path only you can take, and its benefits are realized through actual practice — the hard work of going nowhere, doing nothing, and allowing everything to be as it is; seemingly the antithesis of our life’s work in the legal profession. And yet, the practice of mindfulness may very well enrich and deepen your ability to “be” just as you are, without needing more to be happy and fulfilled, all without diminishing (and perhaps even enhancing) your aspirations and capacity to achieve, persevere, and make a difference. We lawyers are, after all, human beings, and what could matter more than being present, moment-by-moment, so as not to miss the beauty and awe of this one extraordinary life.
The First Stage: Ignorance
As the 21st century approached, most members of the legal profession had no idea what mindfulness was, having never heard the term and, at best, connected it to the colloquial “mindful.” Reminiscent of a parent or teacher’s admonition to be heedful, the phrase likely left many not only misinformed, but disinclined. Though mindfulness has been around for more than 2,500 years, its traction with the lay public was slow to develop. For the better part of the 20th century mindfulness was taught and practiced largely within retreat and meditation centers. Not surprisingly, mindfulness was far from the mainstream phenomenon it is today. While there are still those who have not heard of mindfulness, their numbers are diminishing, and many attorneys have benefitted from the widespread dissemination of mindfulness in countless books, magazines, articles, websites, seminars, workshops, and conferences,1 and find themselves somewhere in the second stage — confusion.
The Second Stage: Confusion
With the term mindfulness making its way into the public discourse, a common misconception that lingers to this day is that mindfulness is a type of meditation that involves chanting, sitting cross-legged, and is in the pursuit of relaxation and escape from life’s stressful moments. One reason for this confusion is that, indeed, meditation can involve chanting, sitting cross-legged, and be in the service of relaxation and escaping life’s more stressful moments. This, however, would be a narrow understanding that confuses mindfulness with a larger body of meditation practices while simultaneously underestimating one of its core aspects; namely that it does not require meditation, sitting cross-legged, or escaping from anything. Mindfulness is being practiced in the courtroom, boardroom, bedroom, living room, and without the need for a mushroom. Appreciating that mindfulness may not be the touchy-feely enterprise initially assumed, many lawyers and judges find themselves interested in learning more about mindfulness, and even excited at the prospect of learning a skill that may enhance their productivity and well-being. Still, at this stage in the journey a major misconception persists, one that is known to linger for a long time — that mindfulness is about relaxing or clearing the mind of thoughts.
The Third Stage: Familiarity
Today, lawyers are more inclined to check out mindfulness presentations and workshops offered at state and national bar conventions, at law schools and local bar events, and even in their own firms.2 They are also taking courses and visiting retreat centers. It doesn’t hurt that a growing number of state bars are authorizing CLE credit for mindfulness programs. Through these offerings, along with books, articles, and online programs, lawyers are becoming more familiar with mindfulness and better informed about what it is.
A popular definition is that “mindfulness means paying attention in a particular way; on purpose, in the present moment, and nonjudgmentally.”3 A basic mindfulness practice involves placing attention on the breath, and when one realizes that the mind has wandered, returning attention to the breath. This straightforward exercise yields a lot of insight — key among them for beginners is that the mind wanders a great deal and that if we are not aware that it has wandered off, we can think, say, and do some pretty reactive and unhelpful things.
While this exercise seems simple enough, many find it to be boring, unpleasant, or unproductive — even if at times it can be calming — and stop practicing early in the game. You may know this from your own experience. Practice can be likened to pushing a boulder up a hill, an effortful enterprise that leaves something to be desired, especially if one does so day in and day out. Interestingly enough, there is no boulder and one need not even leave one’s seat. Rather, it is the stories we tell ourselves about the experience that turn the breath…into a boulder. For those who practice with the spirit of adventure and an inquisitive mind, this is where things get interesting.
A great deal of modern-day interest in mindfulness is fueled by the fascinating body of science research associating mindfulness practice with compelling changes to our bodies and brains.4 For example, research has found mindfulness practice to be connected with decreased levels of the stress hormone cortisol,5 to lead to improved functioning of the immune system, and to alleviate the suffering of chronic pain, limit the “expression” of genes associated with inflammation,6 and slow the rate of cellular aging.7 In the neuroscience realm, researchers have found mindfulness to be associated with thicker regions of the brain associated with focus and concentration, less age-related thinning of the cortex, and greater amounts of gyrification (“folding” of the cortex, which may allow the brain to process information faster).8 In the mental health arena, along with being a useful tool for working with anxiety and depression, mindfulness has been found to be helpful in treating conditions such as obsessive compulsive disorder, difficulty sleeping, borderline personality disorder, and addiction.9 Importantly, these findings do not depend on people “feeling better” (though they often do), but on their practicing.
With so much mindfulness research focused on psychological health, and with so many members of the legal profession experiencing clinical levels of depression and anxiety, chemical dependency, and considering or acting on suicidal thoughts, it is understandable that mindfulness is looked to as a means for managing stress. Perhaps it is for this reason that familiarity with mindfulness tends to reinforce the view that the primary objective of mindfulness is the reduction of stress — of clearing the mind of thoughts, of feeling better. As noted below, it is not that mindfulness doesn’t serve these interests. Rather, it is that mindfulness is in the service of a much larger interest — of relating more effectively to challenging and stressful events, notwithstanding that the mind may be busy and the body agitated. A key insight is that as we develop the capacity to be less resistant to the unpleasant, unwanted, and unexpected, we tend to become less stressed, the activity of our busy minds settles, and we feel more at ease. But, if the cart comes before the horse — if the primary objectives are feeling better — practicing mindfulness may not make sense because those objectives may not, and need not, be achieved. That’s why we don’t make sense of mindfulness — we practice mindfulness to come to our senses.
The Fourth Stage: Embrace
As one learns more and more about mindfulness and hears the compelling stories of colleagues, successful judges and lawyers, and celebrities whose lives have meaningfully benefitted if not been transformed by practicing mindfulness, sooner or later one may give it a try. this time, the shift away from mindfulness as a method of stress-reduction and toward, as Sharon Salzberg teaches, a practice that “helps us get better at seeing the difference between what’s happening and the stories we tell ourselves about what’s happening,” may be better appreciated.10 We come to realize, as if a light bulb goes on, mindfulness helps us to draw upon our own natural skills, gifts, and inner resources, to cut through to the truth of a matter, and to see more clearly what truly matters.
The fourth stage is borne out of a recognition that life and the law are stressful, unnecessarily so in many instances due to the conduct of difficult people, personal challenges with time management, multi-tasking, and perfectionism, the persistence of painful judgments, self-doubt, and the uncertainty embedded in the fabric of the law — and life. Not surprisingly, many attorneys respond by embracing mindfulness as a tool to solve a problem and seek to perfect their understanding of how the tool works, rather than using it. In doing so, they turn to the more familiar and comfortable domain of the written word. And there is a lot written about mindfulness. These readings illuminate a key mindfulness concept that nothing needs to change in order to find inner clarity and ease amid the chaos of life and the stressful practice of law. One need read only a few pages into the thousands of books and articles that have been published in the past decade to appreciate this insight, well summed up by the proverb that “you can’t stop the waves but you can learn to surf.” But surfing is not so easy. Like most things in life, it takes practice.
The Fifth Stage: Practice
The fifth stage is practice. Practice is where the rubber meets the road — and often bounces one back to stage four. Practicing mindfulness can be challenging and frustrating, two qualities that point to the importance of practice in the first instance. Attorney Paul Singerman, when he speaks to lawyers and law students about practicing mindfulness, often remarks that if “you think you don’t have five minutes to spare to practice mindfulness, you need to practice for 10.”
Here is a litmus test of sorts. Are you able to sit quietly in a room by yourself for about 20 minutes, without needing to do anything to distract yourself or to feel at ease? The great mathematician and philosopher, Pascal, counseled that all of our problems are caused by our inability to sit quietly in a room by ourselves. The experience of many is that doing so is extremely difficult. Recent research suggests that we’d rather shock ourselves than spend a little time sitting quietly and doing nothing.11 I don’t believe that Pascal was suggesting that we need to sit quietly in a room; rather, he was commenting on our inability to do so. Consider the benefits that would flow, personally and professionally, were you able to sit still amid the swirling chaos that surrounds you so much of the time and find a steady state within. Rather than conflate action taken to “feel better” with action intended to meaningfully solve a problem, the action you took (or refrained from taking) would be in the service of what is truly responsive to the situation at hand.
Below is instruction for a basic mindfulness exercise. It is offered to start you on your way — or to restart you on your way.
Mindfulness Instruction: Awareness of Breath
1) Bring yourself into a posture that is upright and stable.
2) Lower or close your eyes.
3) Bring your attention to your breathing.
4) Rest your attention on the flow of the breath, noting the sensations of the body breathing.
5) When you notice your mind wandering, bring your attention back to the breath.12
My aim in writing this article is not to suggest that the beginning and end of a mindfulness practice is this five-step exercise. On the contrary, mindfulness consists of a rich body of practices and insights that offer a lifetime of meaningful engagement, intellectual and experiential. You can spend hours reading about why this exercise is helpful and of the neuroscience and medical findings supporting the efficacy of practice. Or you can practice for a fraction of that time and find out for yourself. all means read up on the subject, learn, and be inspired, but don’t confuse reading and talking about mindfulness with practice. Consider for a moment how skilled you’d be as an attorney or judge if you never actually got out and practiced. Consider for a moment some of the stages you may have experienced along the way: ignorance, confusion, familiarity, embrace…practice.
In the resource section of this issue, you will find books, articles, and online resources recommended by lawyers and judges that they have found helpful, and you may, too. A companion piece to this article is an online CLE video with an introduction to mindfulness and its practice. (Visit http://miamimindfulness.org/flabar2016/ to watch this program authorized for 1.0 Florida CLE.)
You will also find in this issue practical tips for bringing mindfulness into your busy day. Look closely and you will see a connection between the above exercise and these tips. Above all, be patient with yourself. The journey of 10 or 20 minutes begins with the first breath — perhaps this one, the one you are taking right now.
1 L. Riskin, Awareness and the Legal Profession: An Introduction to the Mindful Lawyer Symposium, 61 J. Legal Educ. 634 (2012).
2 S. Rogers, Mindfulness in Law, The Wiley-Blackwell Handbook of Mindfulness (Amanda Ie, Christelle Ngoumen & Ellen Langer eds., 2014).
3 J. Kabat-Zinn, Mindfulness for Beginners (Sounds True 2012).
4 A. Jha, Mindfulness Can Improve Your Attention and Health, Scientific American Mind (Mar. 2013).
5 T. Jabobs, et al. , Self-reported Mindfulness and Cortisol During a Shamatha Meditation Retreat, 10 Health Psychol. (Oct. 2013).
6 P. Kaliman, et al. , Rapid Changes in Histone Deacetylases and Inflammatory Gene Expression in Expert Meditators, 40 Psychoneuroendocrinology 96 (Feb. 2014).
7 E. Epel, Can Meditation Slow Rate of Cellular Aging? Cognitive Stress, Mindfulness, and Telomeres, Ann. NY Acad. Sci. 34 (Aug. 2009).
8 University of California, Los Angeles, Is Meditation the Push-up for the Brain? Study Shows Practice May Have Potential to Change Brain’s Physical Structure (July 14, 2011), http://www.sciencedaily.com/releases/2012/03/120314170647.htm.
9 Daniel Siegel, The Science of Mindfulness (Sept. 7, 2010), http://www.mindful.org/the-science-of-mindfulness/.
10 S. Salzberg, Real Happiness: The Power of Meditation (2010) (emphasis added).
11 K. Murphy, No Time to Think, The New York Times, July 25, 2014.
12 S. Rogers, What Do We Want: Mindfulness in Law, Louisiana State B. J. 268 (2015).
Scott Rogers, M.S., J.D., is a nationally recognized leader in the area of mindfulness in law and founded and directs the University of Miami School of Law’s Mindfulness in Law Program where he teaches mindful ethics, mindful leadership, and mindfulness in law. He is the creator of Jurisight, one of the first cle programs in the country to integrate mindfulness and neuroscience and conducts workshops and presentations on the role of mindfulness in legal education and across the legal profession.