idealawg

Blog Glob: "Hawaii civil jury trials becoming a vanishing breed"

Excerpt:

The “vanishing trial” is resulting in less courtroom experience for Hawaii’s litigators as parties on both sides of legal disputes seek faster and cheaper ways to resolve their differences.

...

Even as the recession caused a spike in the number of civil lawsuits filed in Hawaii’s circuit courts last year, jury trials continued to become increasingly rare.

In their place is alternative dispute resolution, in which businesses and individuals take their white-collar legal fights to a mediator or an arbitrator rather than trial.

As a result, the battle-weary litigators of years past are being forced to evolve or make way for a new crop of attorneys skilled in the art of negotiation.

...

Not all lawyers are pleased with the trend.

“This idea that trial is somehow an evil that must be avoided is a flawed vision of the process,” said Jim Bickerton, a partner with the Honolulu law firm Bickerton Lee Dang & Sullivan, who specializes in commercial and real estate litigation. “If you don’t periodically measure the value of cases through trial, how are the mediators and settlement conference judges able to tell you what your risks are for going to trial?”

Click to read the rest of "Hawaii civil jury trials becoming a vanishing breed" (subscription required - Pacific Business News).

More mindfulness events for lawyers and law students, including an ethics course incorporating mindfulness

Mindfulness continues to enter the legal profession through many doors. Earlier this school year, I told you about the U of Miami School of Law's eight-week program on contemplative practices. The Florida Bar News just published an article about that program. From "Mindfulness program aims to help law students live in the moment":

To be an effective law student or lawyer, it is important to be able to focus on the task at hand. Obsessing about the past or worrying about the future can diminish that focus and dilute effectiveness.

That’s one reason the University of Miami has decided to introduce law students to contemplative practices that provide tools for enhancing students’ effectiveness at school, their well-being, and — hopefully — their success and fulfillment in the practice of law, according to Scott Rogers, a University of Florida trained lawyer who also holds a master’s degree in social psychology.

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Rogers said UM is not alone in integrating contemplative practices into their curriculums. Charles Halpern at Boalt Hall at Berkeley and Professor Leonard Riskin at UF are also part of the growing, national trend of teaching mindfulness at law schools. Major corporations like Google have also instituted mindfulness programs for their employees.

Next semester, University of Miami Law will be offering a course entitled "Professional Responsibility & Mindfulness in the Digital Age" taught by Rogers and Jan Jacobowitz. The course description (found here):

The Impact of New Media on Lawyer Conduct: Mindfulness and Professional Responsibility in the Digital Age

A Judge's decision upsets a lawyer and he vents his frustration by blogging and characterizing the Judge as "an evil witch" on a Halloween posting. A young attorney excited about her practice

Lawyers behaving badly: Do new lawyers need mentoring in civility?

In "Stop behaving badly, boorish lawyers told" (Toronto Star), several possible reasons are put forth to explain why the number of complaints made to the Law Society of Upper Canada about rude and abusive behavior has increased. These reasons include:

"Our society isn't as polite as it was," [Derry] Millar said in an interview. "People on their BlackBerrys and their phones have no idea of who is around them. They are not engaged. You phone somebody and you get an automated attendant. We've lost social interaction and people are overstressed, overworked and rushed.

And . . .

Remaining on one's best behaviour, though, can be challenging in an adversarial justice system that pits lawyers against one another and fosters a "radical kind of individualism," [Eugene] Meehan notes.

This one is probably a factor . . .

[Derry] Millar said the law society is also looking at strengthening mentoring programs. Some believe incivility is on the rise because many new lawyers start out on their own these days instead of working alongside experienced members of the bar, who could show them how to behave.

I have not thought much recently about how one learns the culture of the profession. This morning I spent some time recalling what I learned from my mentors. The highest degree of civility, courtesy, and respect for all lawyers and clients was certainly a part of it what they taught me. Their teaching was almost all by example; I watched them maintain that demeanor and behavior even when the other side was acting with a low degree of civility.

What do you think? Is civility something one can learn from another? How do new lawyers learn the way to navigate in a civil manner, even when confronted with boorish behavior? Are law schools teaching civility? Should they?

Living in the zone: Another article about physicians learning mindfulness

Pressures have increased in the medical profession. From "How Mindfulness Can Make for Better Doctors" (New York Times):

All of us [physicians] had had the experience of “disappearing” into the meditative world of a procedure [in the OR] and re-emerging not exhausted, but refreshed. The ritual ablutions by the scrub sink washed away the bacteria clinging to our skin and the endless paperwork threatening to choke our enthusiasm. A single rhythmic cardiac monitor replaced the relentless calls of our beepers; and nothing would matter during the long operations except the patient under our knife.

We had entered “the zone.” We were focused on nothing else but our patients and that moment.

But my more recent conversations with surgical colleagues and physicians from other specialties have had a distinctly different timbre. While we continue to deal with many of the same pressures that my mentor dealt with — decreasing autonomy, increasing administrative requirements, less control over our practice environment — the demands on our attention have gone, well, viral.

Extreme multitasking has invaded the patient-doctor relationship.

After describing the problems associated with these demands on attention, the writer then goes on to talk about a mindfulness program for physicians (which I have blogged about here at idealawg).

It turns out that working and living in the zone, not just getting into it on occasion, may be one solution.

Last month, The Journal of the American Medical Association published the results of a study examining the effects of a year-long course for primary care physicians on mindfulness, that 

Video of Scott Rogers talking about mindfulness-based methods for lawyers

The video of Scott is posted on the Cutting Edge Law site. It is divided into five parts with these descriptions at the site:

Part 1: Scott introduces Jurisight which teaches mindfulness practices to lawyers and law students so that they can become more present, effective, more connected and experience a general sense of well-being. He talks about how he became interested in meditation in law school and the support he got from Marty Peters at the University of Florida and his journey through law.

Part 2: In this segment, Scott amusingly but impactfully illustrates some of his Jurisight terms, including pain and suffering, hearsay and attractive nuisance. [Where does your mind wander into attractive nuisances?] He also talks about the research that supports the benefits of mindfulness practices.

In Part 3, Scott continues to talk about the research on meditation and mindfulness and the scientific support for the benefits.

Part 4: The research shows mindfulness practices lead to eight different traits which Scott ties to effective lawyering.

Part 5: From the mind of the worrier to the warrior. Remembering to be mindful.

Video of Charlie Halpern speaking on "Empathy, Meditation, and the Practice of Law"

Watch Charlie Halpern presenting at Baldy Center for Law & Social Policy, University at Buffalo Law School by clicking here. From the Web site:

During the past decade a number of lawyers, judges and law professors have begun to explore the relevance of meditation and other contemplative practices to legal education and the work of lawyers. Courses have been offered in law schools around the country, and lawyers and judges have participated in retreats and workshops. The benefits range from managing stress at a difficult time in a high stress profession to sharpening lawyers? skills, such as negotiation, client interviewing and trial advocacy. Meditation can heighten emotional literacy and increase the capacity to make empathetic connections. A growing body of scientific evidence is establishing the demonstrable impact on brain function and structure from regular meditation practice. Many law students are finding that the meditative perspective makes them more effective students and improves academic performance. Wisdom has historically been a quality prized by lawyers. Meditative practice can help bring wisdom into law practice and legal institutions.

More about Halpern in "Move From Being a Mindless Lawyer To a Mindful Lawyer" (The Complete Lawyer).

Image credit: The Complete Lawyer.

Blog Glob - Scalia: ‘We Are Devoting Too Many of Our Best Minds to’ Lawyering

Excerpt:

...I used to be disappointed that so many of the best minds in the country were being devoted to this enterprise.

I mean there’d be a, you know, a defense or public defender from Podunk, you know, and this woman is really brilliant, you know. Why isn’t she out inventing the automobile or, you know, doing something productive for this society?

I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.

Click to read the rest of Scalia: ‘We Are Devoting Too Many of Our Best Minds to’ Lawyering (Wall Street Journal blog)

New report on part-time partners in law firms

Cynthia Calvert, co-director of Project for Attorney Retention (PAR), sent me this new report [pdf] and an announcement about it. The announcement:

Part-Time Law Partners Succeed for Clients, Firms
New Study Shows Reduced Schedules No Bar to Financial Success

 

SAN FRANCISCO, September 23, 2009:  Throw away those preconceived ideas about part-time partners in law firms.  The Project for Attorney Retention (PAR), a leading voice on work-life balance and women’s advancement in the law, releases a ground-breaking study showing that part-time partners are remarkably successful: they are highly responsive to their clients, generate significant revenue, and are active leaders and role models within their firms.  “A decade ago, firms typically took part-time lawyers off partnership track,” said PAR Co-Director Joan C. Williams.  “Now, thanks to the efforts PAR and others to create non-stigmatized part-time programs, these lawyers became partners and this study shows the results: a win-win scenario for partners and their firms.”

“The conventional wisdom is that attorneys who cut back their hours cut back their careers.” said Cynthia Calvert, PAR’s co-director and one of the study’s authors.  “We

Does mindful awareness enhance the effectiveness of a negotiator?

First, let's look at negotiation. I am sure many if not most of us are aware of the study done by Professor Gerald Williams on styles of negotiation. He found two styles of negotiation were predominately used by the lawyers he studied, cooperative and competitive, and he looked at the effectiveness of each style. Professor Andrea Kupfer Schneider believed that the Williams study conducted in 1976 needed to be updated for reasons she details in "Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style" (Harvard Negotiation Law Review). [Download the article here.]

She conducted her updated study in 1999. Read the article I have linked to above for the details; how and why she updated the survey is very, very interesting. Below I am pulling quotes from another article she wrote in which she described the study, "Cooperating or Caving In" (Marquette Law Review) [pdf], because the format of "Shattering Negotiation Myths" does not allow copying of the text.

The survey asked lawyers to assess in several ways opposing counsel with whom they had negotiated, including by applying descriptive adjectives and rating effectiveness. Schneider divided her results into four styles: true problem-solving, cautious problem-solving, ethical adversarial, and unethical adversarial. From "Cooperating or Caving In":

The four-cluster analysis is interesting because there are striking differences even when comparing similar groups. For example, the cautious problem-solvers were engaged in completely positive behavior. All of the adjectives describing them are favorable, and they have good behavioral characteristics such as ethical, experienced, rational, confident, agreeable, and dignified. Yet, the effectiveness rating of the cautious problem-solvers versus the true problem-solvers was dramatic—23.5% versus 71.8%. What was the difference? Those lawyers in the cautious group were cautious—cautious about truly engaging in problem-solving behavior. The true problem-solvers had far more skills in their repertoire and were effective in a triangle of skills—assertiveness, empathy, and flexibility.

The lawyers with these two approaches share ethical behavior and a pleasant personality, but the true problem-solver goes further in these three skills. The true problem-solver is better at asserting the case (rated highly in preparation, astuteness about the law, and being realistic) and better at talking about the case as well (rated highly in being poised, forthright, communicative, reasonable, and sincere). The true problem-solver is better at understanding that negotiation can

Interested in neurolaw, the relationship between the mind and the brain, self-responsibility, or criminal law? Then I have a paper for you

If you are interested in any of those topics, I urge you to click over to this post at my other blog: Not guilty! I'm only a neuro-person and my brain made me do it. Law prof Steven K. Erickson has written an excellent paper which I describe there.

He includes a section on "The Birth of Neurolaw."