By Dr. Ken Broda-Bahm:
As the new year begins, it is the time for resolutions. If you’re like many lawyers –- constantly under the pull of future plans and deadlines –- a good resolution might be to "live in the present moment," or as the Zen masters say, to "be here, now." That goal can be elusive, at least for me. Even as I’m finishing one task (like this blog post, for example), I generally am thinking about the next one. But the goal of giving more focus to the present moment is not a bad one. And the benefits are more practical than one might think. In a recent study (Hafenbrack et al., 2013), for example, researchers found that encouraging just 15 minutes of mindful, present attention dramatically reduces the impacts of a persistent psychological bias.
The research is part of a broader focus on what is known as “debiasing,” or mitigating the effects of known cognitive or psychological mistakes. Litigators are likely to be the beneficiaries of a relatively new research focus on what it takes to get listeners to eliminate or reduce their biases. Trial lawyers, of course, want to spot and strike those jurors with unfavorable biases, but knowing that detection is imperfect and strikes are finite, it is also a good idea to think of ways of helping jurors get past the remaining bias. This post will focus on research on one such method: mindfulness. According to Jon Kabat-Zinn of the University of Massachusetts Medical School, mindfulness means “paying attention in a particular way: on purpose, non-judgmentally, in the present moment.” That kind of attention has the potential to help not only jurors but lawyers as well.
Three researchers from the INSEAD business school and the Wharton School at the University of Pennsylvania conducted three studies with the goal of reducing bias by encouraging mindfulness. The studies, covered by Psyblog, focused on the economic problem of sunk costs, or the tendency to try to justify past decisions by “throwing good money after bad.” It is a powerful psychological bias that I have written about recently. In the first study, the researchers noted that mindfulness as a trait is correlated with a strong resistance to the sunk cost bias. In the second and third studies, however, they looked at the effects of inducing mindfulness. They asked one group to participate in a 15-minute meditation exercise to encourage mindfulness, while a control group took part in no such preparation. Then both groups were given a business scenario designed to assess their susceptibility to sunk cost bias.
While 40 percent of the control group participants were able to avoid the sunk cost bias, fully double that amount – 80 percent – of the experimental group members were able to look past it. The third study identified two factors that accounted for this benefit: temporal focus on the present moment, and an avoidance of negative affect. In other words, if participants could spend just a little time thinking about the now and getting past the emotion of regret, then they will make better decisions when it comes to sunk costs.
When applying this to a litigation situation, you might be thinking that the meditation part of it is a bit of a stretch. After all, we don't imagine tinkling bells or chants of “om” fitting in naturally in a courtroom. But that is just the way the researchers chose to induce mindfulness, and it is the end result that is important.
So, the question is how to encourage mindfulness in a legal context. While we probably will need more research focused on the specific context of legal persuasion, it is possible to consider some ways that mindfulness can play a part in legal persuasion.
The Mindful Juror
One post last year in Jack Kornfield’s blog focused on some of the presentations at the Mindful Lawyering conferences that have been held in recent years at the UC Berkeley Law School. He relates the story of one judge who had practiced meditation for many years prior to being appointed to the bench, and who wanted to bring a bit of that experience into his own courtroom. He included the judge's sample instruction:
“I want you to listen to what will be presented in this courtroom with total attention. You may find it helpful to sit in a posture that embodies dignity and presence, and to stay in touch with the feeling of your breath moving in and out of your body as you listen to the evidence. Be aware of the tendency for your mind to jump to conclusions before all the evidence has been presented and final arguments made. As best you can, continually try to suspend judgment and simply witness with your full being everything that is being presented in the courtroom moment by moment by moment. If you find your mind wandering a lot, you can always bring it back to your breathing and to what you are hearing, over and over again if necessary. When the presentation of evidence is complete, then it will be your turn to deliberate together as a jury and come to a decision. But not before.”
If instructions like this are unlikely to come from most judges, attorneys still can find more conventional ways to make jurors more mindful. For example, on a case with extensive pretrial publicity, an attorney at the onset of voir dire might invite jurors as follows:
We all know that this case has been in the news. So I would like you to take a moment to think about what you know, or what you think you know, about this case. Where did the information come from? How do you know whether it is true or it is false? How important is it to you? Take a moment and bring that information to mind before I ask you a few questions.
Giving just those few moments could really help jurors to be more mindful and more open during voir dire.
The Mindful Lawyer
Jurors are not the only ones susceptible to bias, and the most available mind that attorneys have access to during persuasion is their own. For that reason, the idea of mindfulness might apply foremost to attorneys themselves. This need to be mindful can mean a few things. First, it means that lawyers ought to be focused on listening. As Mark Bennett noted in this blog, “Any good lawyer will tell you that the single most important trial skill is listening. The lawyer who is attentive to what is happening at any moment in the trial is going to do a better job in that moment than the lawyer who is thinking ahead or thinking about the past."
Second, it suggests that attorneys need to be open. Instead of sticking with the lockstep execution of a strategy that was developed in advance, attorneys need to react to what is happening on a day-to-day basis in the courtroom. The best-laid plans may fall flat, and the greatest inspirations may arise at a moment’s notice.
Third, it suggests that attorneys should temper their passion. Yes, counsel should be zealous advocates for their clients, but they should, when the time calls for it, be able to acknowledge and set aside their emotions just as the study participants were able to do. You might, for example, have a visceral reaction to the fact that judge and jurors seem to be buying the opposing expert’s questionable testimony, but giving free reign to that emotional reaction will not help. Instead, you need to keep your head and react to what is happening in court as it happens.
Ultimately, mindful lawyering and mindful legal persuasion can mean much more than this. In addition to the conferences mentioned above, there are also course syllabi, as well as whole websites for lawyers and law students. Within this focus, there is naturally a spectrum running from the spiritual to the practical, but the central takeaway for me is this: A deliberate focus on the here and now can make for better delivery and better reception of legal persuasion.
Other Posts on Mindset:
- Cultivate Compassion
- Avoid Condescension and Other Sins of Legal Argument: Know Your 'Second Persona'
- Remember Why You Went to Law School
Hafenbrack, A. C., Kinias, Z., & Barsade, S. G. (2013). Debiasing the Mind Through Meditation Mindfulness and the Sunk-Cost Bias. Psychological science, 0956797613503853.
Image Credit: RambergMediaImages, Flickr Creative Commons