Mindfulness, errors and omissions of attention
In this month’s column we take a look at legal errors and the ways that the practice of mindfulness can reduce their likelihood. We don’t need to look far to appreciate the frequency and real-world consequences of errors made by another group of highly trained professionals. It is estimated that medical errors are so commonplace and consequential that they are the third leading cause of death in the United States.
Fortunately, errors in the legal profession tend not to be as consequential to life and limb (with some exceptions, to be sure). Nonetheless their consequences can be severe. Most of us can recall times when mistakes were made — very often amid the best of intentions — and while we managed to get through many of them, somewhat unscathed, there are those that take a toll on our clients, our colleagues, our reputation, and, if nothing else, our well-being.
Even when things turn out okay, the angst, guilt, regret, worry, and self-doubt that arise along the way, alone, make the case for wanting to minimize them. And even when we breathe a sigh of relief, the half-life of these psychological consequences often survives the situation itself.
Past columns have addressed how the practice of mindfulness can help us navigate the unpleasant emotional landscape we inevitably experience and there is a growing body of evidence on the efficacy of practicing mindfulness to work with emotions like anxiety and depression (see this JAMA publication or this ABA column that reviewed the publication on mindfulness practices and anxiety).
Today we look at the cognitive predicate (as opposed to the emotional outcome) of many errors and how the practice of mindfulness can be helpful for minimizing and, in some cases, even eliminating them. To zero in on this, we look at one of the most important cognitive tools we have at our disposal: attention.
Attention
Dr. Amishi Jha, a cognitive neuroscientist and attention (and mindfulness) researcher, often remarks that attention is necessary for thinking and feeling. Drawing on the metaphor of a flashlight, she explains how the ability to direct our attention where we choose, and to notice when it wanders, is what allows us to gather data, process it, and make informed decisions. Moreover, attention influences what we are feeling based on where it is pointing (e.g., to a worrisome future event). Not surprisingly, there is a link between rumination, or fixating on a thought and depression and anxiety.
To be clear, this is not a discussion on attention disorders. While there are individual differences in the quality of attention, most of us have a sufficient dose of it to do our job well and to thrive. That said, as Jha points out in her book “Peak Mind,” as powerful as it is, attention is also vulnerable and one of the major threats to a steady attention is . . . stress.
Consequences of Attentional Lapses
It likely is no surprise that attentional lapses can be problematic. Here are some of its consequences: mistakes, errors, bias, fatigue, impulses, overconfidence, miscommunication, diminished comprehension, poor retention, reduced empathy, forgetfulness, and overlooked data.
How might one or more of these concerns impact the quality and integrity of your work product? To make this more concrete, consider the following:
Pat is reviewing documents while preparing a brief to be filed with the court. The paralegal has done a great job assembling all that is needed for Pat to document the facts that make a convincing argument. Pat understands the law, is a superb writer, and cares about the client.
After reviewing the materials for several hours, Pat becomes hungry and attention momentarily wanders off to consider what to do for dinner. Pat is unaware of this mental meandering as her eyes never stopped skimming the document — on autopilot. Attention cannot be in two places at the same time, and for those handful of seconds, whatever passed across the eyes was dimly received, if at all.
Of course, it need not have been a pang of hunger. Pat’s attention could have turned to a fleeting recollection of a comment the judge made in court earlier in the day. Or, it may have nothing to do with hunger or a worrisome thought. Perhaps Pat became tired, a state in which attention can dull out or wander more frequently. In all these cases, not only might information right in front of Pat be overlooked (without awareness that anything was overlooked), but the ability to retain and process the incomplete information, or the assumptions made about what was retained, is an accident (or error) waiting to happen.
It’s not unlike the familiar experience of meeting someone and forgetting their name only seconds after they tell it to you — a classic failure of attention
A Wandering Attention Is Par for the Course
Research finds that attention wanders about 47% of the time. In his Florida Bar Journal article, “My Return on Investment from the Study and Practice of Mindfulness,” Paul S. Singerman invites readers to consider the implications of a judge reading only 53% of documents filed in a matter or a physician being 53% present for a surgery. Putting aside extreme instances, there will of course be times when nothing too consequential is at stake; we’re just lost in thought. That is unless you care about your well-being, for the research reporting 47% mind wandering noted that when the mind is wandering, our mood tends to drop.
Notwithstanding the above cautionary note, when we are well-rested, engaged, and equipped to meet the demands put before us, our focus can be steady, even heightened. Thanks to our attention, we get the job done well, often.
But a great paradox about attention is that we are often unaware of when it is wandering, and so we can’t know what we are missing. We simply are not aware that we are no longer paying attention to the task at hand. This is where mindfulness practice comes in.
The Return on Investment of Mindfulness
In his article, Singerman offers this insight, born out of his own experience practicing mindfulness:
Perhaps one of the most valuable benefits from the study and practice of mindfulness that I have enjoyed is developing a greater awareness of when I am off task. I have found it immensely useful — and sometimes absolutely frightening — to be aware of when I am regretting the past or worrying about the future. Only with the enhanced awareness of when I am not in the present can I make an effort to return to the present — the only place I can make a difference and the place that contains all the data — free for the observation of it — that allows me to be more knowledgeable and powerful in advancing my mission.
The Focused Attention Practice
One of the most popular and well-researched mindfulness practices is known as “Focused Attention.” While it is loosely referred to as a mindfulness practice, it is more accurately an exercise in training attention. Research finds that, in addition to matters of mental health and well-being, the more one practices, the fewer one’s attention lapses, and the greater the detection of an attentional lapse when its arises. It is an easy-to-learn exercise, asking but a handful of minutes of our time, that develops what Singerman refers to as “the enhanced awareness of when I am not in the present.”
Below is a brief instruction should you wish to practice for a few minutes, followed by links to more information and a series of guided practice of various lengths. Begin by setting a timer for however long you wish to practice, e.g., 6, 9, or 12 minutes.
- Bring yourself into a comfortable posture, lower or close your eyes.
- Direct attention to the sensations of breathing (or another object of your choosing — like a sound, a visual object, or a part of the body).
- Observe the sensations of breathing (or other object) with the intention to remain attentive to the object.
- When you detect mind wandering, return attention to the object.
When the timer sounds, lift your gaze/open your eyes.
For many (not all), this type of practice can bring about a welcome dose of relaxation and/or clarity. William James, the great psychologist and philosopher, remarked that “the faculty of voluntarily bringing back a wandering attention, over and over again, is the very root of judgment, character, and will.”
You can click here to read more about the Focused Attention practice, or here to listen to 6, 12, and 18-minute guided practices — 12 minutes being the length of time Jha’s research finds to be a sweet spot for the benefits the practice offers.
Wishing you a happy and healthy July 4th.
Scott Rogers
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, mindfulness and negotiation, 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. He is author of the recently released, “The Mindful Law Student: A Mindfulness in Law Practice Guide,” written for all audiences.
