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November 01, 2016

You Can't Stop the Waves, But You Can Learn to Surf -- A New Tool for the Lawyer's Tool Belt: Mindfulness

Debi Galler

Mindfulness is not simply a new wave, touchy feely program. CEOs, senior executives, and lawyers are using mindfulness as a tool to help promote retention, talent advancement, and innovation. As noted in a recent article, research on mindfulness indicates that mindfulness meditation hones skills like attention, memory, and emotional intelligence. Emma Seppala, How Meditation Benefits CEOs, Harv. Bus. Rev., Dec. 14, 2015, Imagine the power and enhanced effectiveness you could harness with greater attention, memory, and emotional intelligence, both at work and at home.

Paying attention is at the top of the list of the many skills we lawyers need to succeed in our day-to-day work, and quite frankly in our day-to-day lives. Studies have shown, however, that our minds wander as much as 50% of the time. I’m sure it has happened to you at some point; you are speaking with a client, a colleague, or a friend, and you simply did not hear what they were saying. At that moment your mind decided to go on holiday, or there was something else your mind preferred to pay attention to. With practice, mindfulness can increase your ability to stay focused, and when your mind wanders, you are able to realize that it has wandered sooner and bring it back more quickly.

Another very important skill for a lawyer is memory, the ability to recall data and information. No matter what area of law you practice, whether you are a civil attorney or a criminal attorney, litigator or deal maker, memory is very important. Although in today’s digital age information is available literally at our fingertips, there are times when you cannot or should not go to your digital source to recover the forgotten information, such as closing argument at trial, oral argument before an appellate court, meeting with your client, and the list goes on. Even with information digitally or otherwise available, productivity will slow if you have to stop and look up every fact, every case, and every clause because you are simply unable to recall even what you had for breakfast.

With the aid of modern technology, scientists have been able to measure changes in the brain, and have observed that meditation increases the thickness of the prefrontal cortex, which is the area of the brain associated with attention and memory. So with practice, and over time, meditation can help you increase your ability to retain and recall information. Imagine what a powerful tool increased memory and attention would be.

Brain-imaging research has shown that mindfulness meditation may increase the volume of the hippocampus and areas within the orbito-frontal cortex, an area that is associated with regulating your emotions. The ability to understand one’s own emotions as well as the emotions of others, and to use this information as a guide to one’s thinking and behavior is referred to as “emotional intelligence.” Some may refer to this as patience or empathy. No matter what label you use, this is another critical tool in a lawyer’s tool belt.

A high Emotional Quotient (or EQ) is essential to having successful relationships with clients. Truly understanding a client’s needs and fears, being able to help the client navigate his or her own emotions in what is often very trying times, truly connecting with and hearing the client will help you solve for the client’s current issues, diffuse the fear, anger, or other emotions that your client is dealing with, and make for a much stronger attorney-client relationship.

EQ is also essential to help you maintain your IQ (or Intelligence Quotient). In times of stress, the small part of our brains called the amygdala is conditioned to take over. When this emotional part of our brain takes over it shuts down the area of the brain that controls IQ. Studies have shown that during emotionally tumultuous times, when we are angry, upset, or stressed, our IQ can operate 10 to 15 points lower than at our optimum times. This decrease can mean the difference between winning and losing when faced with a cunning opponent.

One of our other job descriptions as lawyers is to embrace and successfully navigate adversity. Adversity is all around us. It is the nature of the beast for a lawyer. Problems of all shapes and sizes come up all the time in both our professional and personal lives, and they range from the trivial, to the profound, to the overwhelming. We place many labels (all negative) on adversity: failure, tragedy, difficulty, obstacles, setback, crisis, and suffering. Adversity can come from many sources: looming deadlines; adverse decisions; difficult clients, colleagues, or opposing counsel; and internal firm or corporate changes and challenges. The challenge is to meet adversity with inquiry, in the spirit of mindfulness, and refocus our attention and thoughts from the negative to the positive, or if not to the positive, at least to the possible.

With EQ, inquiry, and mindfulness, you may see the lesson in the adversity, the wisdom, and perhaps even an opportunity in the problem that could transform the situation from one that is a negative to one that is productive and valuable. Inquiry does not mean necessarily looking for answers, and certainly not looking for a quick answer or quick fix, or even thinking about an answer. Rather it is a process of ever questioning: What is this? What is going on? What is the root of the problem? What are the connections?  What is the evidence? With EQ, inquiry, and mindfulness, you may see the adversity as an opportunity. With an increased EQ, you will also find that you are more adept at rising above the challenge with grace and dignity―as a consummate professional, something that we all should strive to achieve.

Times may be tough now and challenges can either defeat you or inspire you. They can either tear you down or build you up. As Alexander Graham Bell once wrote, “When one door closes, another opens; but we often look so regretfully upon the closed door that we do not see the one that has opened for us.” Through mindfulness, we can take a breath that allows us to look away from the closed door and move toward the door that has newly opened.

Executives (and lawyers) who have incorporated mindfulness programs into the workplace also have found (as have numerous research studies) that meditation can decrease anxiety and thereby boost resilience and performance under stress. This allows executives, employees, and lawyers to maintain their composure in high stress situations and propose solutions rather than simply adding to the chaos.

Sadly, a recent study reveals that 28% of lawyers responding experienced depression, 19% experienced anxiety, 23% experienced stress, and 20.6% of lawyers (and judges) reported problematic alcohol use. James Podgers, Younger Lawyers Are Most at Risk for Substance Abuse and Mental Health Problems, A New Study Reports, A.B.A.J., Feb. 7, 2015, The study supports earlier findings that alcohol use disorders and mental health problems are occurring in the legal profession at higher rates than other professions and the general population. What is surprising is that younger lawyers are being afflicted with substance abuse and mental health problems at a greater level than older lawyers. Historically, it has been older lawyers who suffered with these afflictions in greater numbers. Whether you are a younger lawyer or a more seasoned one, mindfulness can help us shift from constantly being in “doing” mode to “being” mode through the application of attention and awareness. When we divorce our “doing” from our “being” we are less integrated, less effective, and more burned out, which can lead to the tragic statistics noted above.

When we shift from “doing” mode to “being “ mode, we are more apt to tune in to our body’s own early warning system for anger and fear (for example) by learning the feelings and sensations within our own body that are invoked when anger or fear arises. This in turn will allow us the opportunity to choose how we should respond rather than reacting on impulse, which is often not productive and often can be damaging. Through mindfulness we can be more connected, more present, and as a result, we can become even better, smarter, more efficient lawyers.

For those of us in search of that “eureka” moment, when creativity and innovation are of paramount importance, studies suggest that we have our biggest breakthroughs and insights and are most creative when we are in a more relaxed, meditative frame of mind. If you are overly stressed, the creativite juices usually cannot flow.

Stress in some form or other is an inevitable part of our lives. Meditation will not make the stress go away. Just like the water on the surface of a lake or an ocean, there will always be waves, sometimes big, sometimes very small, depending on the wind that is blowing over the surface. We cannot make the wind stop blowing across the surface of the water any more that we can suppress the waves of the mind, and in fact attempting to do so will only create more tension, more waves. But through meditation we may find some shelter from the wind and learn to ride the waves.

So let’s try this exercise taken from Jon Kabat-Zinn’s book, Wherever You Go There You Are:

Try watching your reactions in situations that annoy you or make you angry. Notice how even speaking of something “making” you angry surrenders your power to others. Such occasions are good opportunities to experiment with mindfulness as a pot into which you can put all your feelings and just be with them, letting them slowly cook, reminding yourself that you don’t have to do anything with them right away, that they will become more cooked, more easily digested and understood by holding them in the pot of mindfulness.

Observe the ways in which your feelings are creations of your mind’s view of things, and that maybe that view is not complete. Can you allow this state of affairs to be okay and neither make yourself right or wrong? Can you be patient enough and courageous enough to explore putting stronger and stronger emotions into the pot and just holding them and letting them cook, rather than projecting them outward and forcing the world to be as you want it to be now? Can you see how this practice might lead to knowing yourself in a new way, and freeing yourself from an old, worn-out, limiting view?

Give it a try and see if you can shift from simply doing to being and become more fully connected in the here and now and see if you might just learn to surf!

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Debi Galler

Debi Galler is Of Counsel with Berger Singerman LLP, and has an extensive background in real estate, as well as transactional and corporate bankruptcy matters. Debi is Chair of Berger Singerman’s pro bono legal services and writes and teaches on mindfulness.