Cite as: July 2011 85(7) LIJ, p.40
By Joel Orenstein
Practitioners are increasingly using meditation to enhance their lives, including their practice of the law. Since it also combats stress and depression, it is worth considering.
Meditation is a practice most often associated with religious or spiritual traditions. Yet over the past 30 years it has moved from its religious context and steadily cemented itself in the secular mainstream.
Meditation is used in the treatment of chronic pain, stress and depression and is an effective counter to negative mind-states and poor impulse control. Beyond its more health-related applications, it has been used for other purposes, including in professional settings, to improve concentration, decision-making skills, empathy, communication, focus and self-confidence.
I first started meditating about the time I began law school as a means of dealing with the various stressors and challenges I was finding at university and in my personal life. I found it greatly assisted me and started practising regularly.
Although I had found meditation independently, in the past decade there has been a movement by the legal profession to embrace it. This has occurred principally in response to the increasingly hostile and antagonistic work environment and the worryingly high rates of substance abuse, mental illness and depression in the legal profession.
In the US in 2002, Harvard University hosted a symposium on the topic. From the debate that this sparked, a wealth of academic literature emerged, drawing from the experience of individuals, legal practice groups, and the scientific research on the effects of meditation on the brain and general wellbeing.
Building from the genesis of the 2002 symposium, the University of California Berkeley hosted the first national conference on meditation and the legal profession in October 2010, which I was lucky enough to attend. The conference brought together 185 lawyers, judges, legal academics, students and neuroscientists from across the US, Canada and Australia for three days to discuss the science of meditation and how it can be harnessed to improve legal education and the practice of law. The outcome of this has been a sharing of resources between the jurisdictions to integrate mindfulness training into CPD/CLE activities and a coordinated approach offering mindfulness training to law students as part of their education.
Mindfulness meditation has its origins in the teachings of Buddhism, where it is practised to cultivate awareness, insight, wisdom and compassion. It is a form of meditation, of which there are many, that has proved to easily translate to a secular setting as it is essentially a non-religious, or religion-neutral discipline. It is also supported by a large body of scientific research, principally through empirically supported comparative studies, on the effect of mindfulness practice and training on a variety of problems, particularly stress and chronic pain.1 This has been mainly thanks to the efforts of Jon Kabat-Zinn and others who over the past 30 years have merged mindfulness meditation with the modalities of Western psychology and neuroscience.
In mindfulness meditation practice, you train the mind to look inward, focusing deliberately on itself through moment by moment awareness. Grounding yourself in the present, you consciously and intentionally observe your breath, bodily sensations, emotions and thoughts in an open, accepting and discerning way, deliberately not chasing after thoughts or pushing others away. Through this process of inquiry you become familiar with and observe how the cognitive process of the mind works.
Initially through the experience of meditation, you often notice the distractability of the mind, its refusal to stay focused, always seeking to judge, create and/or avoid experience. At other times you notice how quickly the mind becomes dull and spaced out. Soon you realise that this experience of mind is not limited to when you are meditating – but rather is occurring throughout most of your waking experience. You are, however, mostly unaware of this.
When you persevere with the practice, repeatedly and consciously focusing the mind with effort, you are able to create space to step back from thoughts. Soon you become attuned to observing how thoughts rise and fall and through a process of letting go, enabling yourself to stop reacting and continually identifying with these thoughts. In so doing, it is possible to observe with a sense of calm, clarity and equanimity the same thoughts and mental patterns that so often cause us distraction, anxiety or distress. With practice, you can begin to act from this space of clarity and calm instead of being continually tossed about by your habitual and mostly unconscious reactions. The result is a reduction in stress, clearer decision-making, increased awareness of your mental process and greater empathy towards others.
What has this got to do with being a lawyer?
In essence, what we deal with as lawyers, and often what we think of as legal practice, is a focus on the outer: issues in a legal problem, how parties to a dispute may relate, strategy in a proceeding, what the law says about certain sets of facts, what the likely outcome to a problem will be. Yet this is only ever half the story. As human beings we are also dealing with a whole other layer of inner thoughts and emotions – our client’s worries and reactions, our fears, anger, boredom, excitement, judgments and criticisms.
It is these inner thoughts and emotions that we are so often unaware of and under-emphasise. Yet we know that unless we can successfully navigate them – the pressure of a deadline, our nerves at appearing before a hostile tribunal, how we are going to make the mortgage repayments, our fear of failure or looking the fool – our practice of law can never be successful, satisfying or sustainable. Rather, if left unattended or dealt with unskilfully, these thoughts and emotions cause us stress, unhappiness, anxiety, sleeplessness and all the flow-on negative effects to our health.
What meditation provides is a means to become aware of this inner space and in so doing find a balance. We do not deny the outer – meditation is not escapism – but, rather, we learn to become aware of things as they really are. We are aware of our thoughts and emotions, and instead of being thrown by them, we can create the space to let go.
After completing my articles, I accepted a job in criminal law with a community legal centre in East Gippsland. I was a first-year lawyer working on my own with little support and a large caseload. I wanted to be the saviour of my clients and felt enormous enmity towards the police, whom I labelled collectively as the cause and source of all my clients’ problems. As the workload increased and various crises unfolded, I began to dread what the day might hold for me. I stopped communicating with my family and sleeping, as I was constantly consumed by the stress of my work.
During this period I began to recognise in myself what I had seen in others in our profession – the common emotions of anger, sadness, fear and anxiety that lead to burnout, cynicism, substance abuse, constant rage or despair. Although practising meditation through this period, I had been using it as an escape to give me a break from the onslaught of my thoughts. This had a remedial effect – I was able to function – but I was still teetering on the edge.
After the birth of our first child I no longer had the formal time to meditate. I was forced to bring my mindfulness practice into my everyday activities – to shine the torch on my insecurities and aversion to conflict as they were occurring throughout the day. My work and family life improved immensely. My attitudes to others softened. My relationships with colleagues and the police improved as I stopped labelling others as the enemy. I became more attentive and present in my interactions and began to experience joy in the simplicity of being present with whatever was occurring. My confidence also improved, as did my legal skills and effectiveness as a lawyer, which in turn led to better outcomes for my clients.
Stress, distress and legal practice
Study after study has identified that lawyers tend to be unhappy in their work, suffer high rates of depression, anxiety, divorce and substance abuse and have difficulty balancing work and family life.
An Australian study in 2007 found that, as a whole, “professionals” (those working in financial, legal, architectural and similar industries) suffered higher levels of depression than the general population, with lawyers the most likely to be depressed and to use alcohol and drugs to try to manage the problem.2 These findings were confirmed by a further comprehensive study in 2009 by the Brain and Mind Institute at the University of Sydney.3
Although the precise cause of the high rates of depression and psychological distress among the profession is not known, at least one influential study posits that the distress is directly traceable to legal study and practice.4
Responses to dealing with psychological distress and depression have varied. Many lawyers have dropped out, preferring to remove themselves from the stresses of legal practice than continue in the profession.5 Others seek professional help, although many more are sceptical about the effectiveness of mental health professionals, and hold negative views about depressed people in general.6
Various legal institutions have also responded by trying to raise awareness of the issues and remove the stigma associated with poor mental health.
Programs on stress, time management and professionalism, along with counselling services, have been promoted. Legal journals, including this one, are full of articles that promote balance. More and more firms throughout the country are offering greater flexibility in working arrangements and programs promoting health in response to the cost of high staff turnover and loss in productivity through stress leave and related insurance claims.
Training lawyers in mindfulness has been part of this response, both by individual firms and as part of the activities of the professional bodies throughout the country. The LIV now offers workshops and sessions in mindfulness meditation as part of the continuing professional development (CPD) training calendar. Recently the Federation of Community Legal Centres offered a session on mindfulness as part of its annual CPD training day.
Mindfulness practice is an effective combat against stress because it provides the individual with the resources to stop identifying with the content of thoughts and patterns that cause the stress. By training the mind to let go without commentary or judgement on whatever arises, you are able to rest in the state of awareness itself. In contrast to the jumble of our thoughts and emotions, this state of awareness is consistent, reliable and a storehouse of peace.
Beyond the remedial
Mindfulness meditation practice has generally been presented to lawyers as a means to combat stress, and it is because of its remedial application that most have been attracted to it.
Perhaps unexpectedly, however, those of us who have tried meditation have found that mindfulness practice has relevance beyond stress reduction to affect much of our personal and professional activities.
By being aware of our thinking and mental patterns we are able to observe with greater clarity, cutting through the distortions and reactions that habitually form the basis of our thinking. Mindfulness helps us to be fully present, to be aware of our own thoughts and reactions and more in tune with those of others. Consequently, we are able to listen with more presence, space out less and remain focused for greater periods.
Furthermore, as we observe and let go the prejudices, storylines and judgments of ourselves and others, which form the inner dialogue of our conscious experience, we are able to reside naturally in the space of awareness that remains. In so doing we can lessen our reactivity and act from a well-spring of calm.
This naturally improves the clarity of our decision-making, allowing our intelligence and wisdom to function fully, which has an enormous practical benefit on our skill base as lawyers.
In negotiation, for example, one must understand the strengths and weaknesses of one’s position and those of the other parties. Informed by the outer circumstances of the dispute, the mindful negotiator is more attuned to when to hold out for a certain outcome or settle for something less. Mindfulness therefore allows one to switch between different modes of representation, avoiding the danger of either holding fast to a certain position when one should compromise, or comprising when one should hold fast.
When we take on the role of mediator, if we can remain in and act from meditative awareness we are best able to actively engage the parties to a dispute. Not only do we communicate better, we also notice that our calm seems infectious, and can positively affect the state of mind of others in a way that humanises a dispute, transforming seemingly unmoveable positions.
In formal advocacy, standing to make an argument can cause us nervousness, anxiety and fear. When we are challenged while on our feet, these emotions can be extreme and we can be barraged by all kinds of thoughts.
Mindfulness provides us with a way to manage these reactions, allowing us to recognise fear before it becomes all-consuming and at the same time allows us to absorb and process information with clarity and awareness.
Furthermore, the more we are mindful, the more external circumstances stop affecting us in the way they once did. In this way the unpredictability of life does not dictate our functioning nor cause us the same distress. Consequently, whether we win or lose, how well we slept, whether we receive praise or criticism no longer determine of our level of satisfaction or success.
Simultaneously we begin to see and react to others differently. We recognise in others what we ourselves are also dealing with – stress, fear, anxiety, excitement, anger, distractedness – and realise that on this basic level we are all alike. Consequently we have increased patience with others and our empathy naturally grows. This inevitably positively affects our relationship with our clients, opposing lawyers, co-workers, court staff and the judiciary, as well as family and friends.
Learning to practise mindfulness
The practice of mindfulness is essentially a personal discipline based on our own process of inquiry and experience of the results of this inquiry. Consequently, no amount of reading or research can teach us what it is about – we need to find out for ourselves through the practice itself and, based on our own subjective experience, determine whether it is effective.
That said, it is enormously beneficial to learn from someone who has a thorough background in the practice and is experienced in talking about it with others.
Mindfulness is usually taught to groups as the energy of the group generally helps one to motivate the practice. Furthermore, we can often relate the experience of others to our own experience to gain greater insight. We must, however, learn to engage in the practice on our own, which usually involves setting aside a time each day to formally sit and watch the mind and at the same time recognising the opportunity, whenever it presents throughout the day, to practise.
How we manage our inner thoughts and emotions will often be the measure of success, not only in terms of legal outcomes for our clients, but also our own general level of satisfaction and contentment. Yet our problem as lawyers is that we so often neglect to attend to these thoughts and emotions. In the process we are missing opportunities for more effective lawyering and at the same time our mental health is suffering.
Importantly, mindfulness meditation is not a panacea for the stresses of legal practice and does not suit all. No doubt some lawyers find the practice of law nothing but a joy and are completely satisfied with their work. Others are able to find outlets for stress through physical exercise or other pursuits. And some seem to be blessed with an innate equilibrium – an ability not to take themselves, their work or the world too seriously. But for the rest of us, who are often struggling to find a balance, mindfulness meditation can help.
Just as regular physical exercise will help the body stay healthy, regularly attending to our mental health through mindfulness meditation will keep the mind healthy and build resistance.
However, taking time to care for our mental health and wellbeing through mindfulness meditation not only lessens our stress – we can also realise our potential to become better lawyers. The result is a legal practice that is not only sustainable and successful, but often a source of great satisfaction, joy and wisdom.
JOEL ORENSTEIN is a sole practitioner, trainer and consultant based in Bairnsdale, East Gippsland. He practises in Indigenous rights, summary crime and child protection. He has been meditating for over 10 years and consciously integrates mindfulness practices into his legal practice.
1. Baer, Ruth A, “Mindfulness training as a clinical intervention: A conceptual and empirical review” (2003) 10(2) Clinical Psychology: Science and Practice 139-140.
2. See “Survey reveals depth of depression problem”, June 2007 LIJ, pp22-25; Beaton Consulting, Annual Professions Study 2007, Melbourne, 2007.
3. Kelk, N, Luscombe, G, Medlow, S and Hickie, I, Courting the Blues: Attitudes towards depression in Australian law students and lawyers, Brain & Mind Research Institute Monograph 2009-1, p42.
4. Beck C, Sales B and Benjamin G, “Lawyer distress: alcohol-related problems and other psychological concerns among a sample of practising lawyers” (1995) 10(1) Journal of Law and Health 1-60; see also Riskin, L, “The contemplative lawyer: on the potential contributions of mindfulness meditation to law students, lawyers and their clients” (2002) 7 Harvard Negotiation Law Review 10-13.
5. A 1999 study of exit interviews of lawyers who had left the profession found that the majority had suffered from physical and mental illnesses including exhaustion, ulcers, broken sleep, crying, loss of confidence and self-worth, irritability and depression. See note 3 above, p1.
6. Note 3 above, p42.