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These days you don't see events like this involving supreme court justices

From the ABA Journal, we learn of the colorful history of Supreme Court Justice Stephen Field. The events described in the article were hardly all that added color to his life story. For a more complete look at the man, read this review of Justice Stephen Field: Shaping Liberty from the Gold Rush to the Gilded Age, a biography. An excerpt:

And, indeed, when Field made an enemy, apparently it was for life. Thus, one of his "critics," William Turner, described Field's career in California as "series of little-minded meanliness, of braggadocio, pusillanimity, and contemptible vanity, which when known will sink him so low in public estimation that the hand of the resurrectionist will never reach him." Field returned the sentiments. Turner, who had served with Field as a California judge, was a man "of depraved tastes, of vulgar habits, of ungovernable temper, reckless of truth ... and grossly incompetent to discharge the duties of his office" (pp. 34-5).

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The remainder of Kens's chapters focus on Field's High Court career, from March 1863, when Lincoln appointed him as the tenth justice, to 1897 when--suffering from marked physical discomfort and mental confusion if not feebleness--he reluctantly resigned, effective December 1, 1897. Field served during the presidencies of Lincoln, Johnson, Grant, Hayes, Garfield, Arthur, Cleveland, Harrison and McKinley. In an era much less sensitive to appearances of judicial impropriety, Field remained on the bench in numerous cases where one of the participating lawyers was his brother David Dudley Field. Moreover, he welcomed his brother's management of an ill-conceived and unrealistic movement to push Stephen Field for selection by the democrats as a presidential candidate in 1880. Like his colleagues Samuel Miller and Joseph Bradley, Field believed that he was admirably suited to be chief justice, a position to which they all aspired, though in vain.

Interview of Norman Fischer: Some benefits of mindfulness and self-awareness for legal professionals

Today I am talking with Norman Fischer who is with the Everyday Zen Foundation. He is a poet and a Zen Buddhist priest. Click to read more about Norman.

Norman, thanks very much for agreeing to participate in my series of interviews of thinkers and practitioners who have ideas that are valuable for the legal profession. I am grateful that you are taking the time to answer my questions, and know many readers will appreciate your generosity and wisdom, too.

I have been very impressed with the program that you and Gary Friedman have designed for lawyers and other conflict professionals. In addition to specific contemplative practices, your program includes a general focus on self-awareness. How does self-awareness improve a lawyer’s level of client service?

Self awareness is a prerequisite for awareness of others. It eventually leads to it. The more you can see and feel what's going on in you, with some wisdom and equanimity, the more you can see and feel others with accuracy and sympathy. So self awareness makes you more sensitive to people, what they are feeling, needing, wanting. You become much more conscious of relationship, the nuances of human interaction. This is valuable simply for being human, but for lawyers, who work depends on being able to understand others and their motivations and needs, is it even more valuable. No matter what kind of law you do, a cornerstone of lawyering is the relationship with the client. To establish a trusting relationship with a client, one in which the lawyer really understands the clients needs and perameters, emotional intelligence (which means self awareness and awareness of others) really helps. And it helps too in determining how to deal with opponents, judges, negotiation, and more or less everything lawyers do.

Thanks very much for your response, Norman. I am often asked by lawyers if there is a way to achieve mindful self-awareness without meditating. What are your thoughts on that question?

Meditating is not the only way to be self aware of course. In our work with Gary Friedman we designate nine practices. Things like journaling, taking times for conscious reflection,  taking three breaths in midst of emotional situations. But meditation supports all these other practices and strengthens them. And, since mindfulness and deep self reflection depend on the capacity ultimately to be able to be "non-judgmental" that is, to step outside your usual story of how things are, meditation is essential, because only it can help to foster that. But there are many ways to meditate. In any case, self reflection practices, without meditation,are still enormously helpful. Especially when you are clearly aware of their limitations (ie, that your self reflection is always limited by your own limited point of view).

In a moment I want to ask about your Mindful Lawyering program being held next month at Garrison Institute, but first I would like you to say a bit more about being aware of our limitations and what you call “limited point of view.” Are we all limited in our awareness, both of

New Penn Law podcast series brings audiences “great minds on law and life”

News release from Penn Law:

The University of Pennsylvania Law School has launched a new podcast, Case in Point, a series that takes a dynamic new approach to podcasting in higher education and the law.

With over one billion subscriptions through iTunes alone, podcasts are quickly becoming one of the go-to sources of information and entertainment for a tech-savvy audience. A unique resource, Case in Point is produced by a one of the nation’s top law schools and convenes scholars from Penn Law with newsmakers, practitioners, and journalists from around the U.S. and the world. The series delivers smart, accessible conversations that bring experts’ knowledge to bear on major issues of law, policy, business, and culture.

“Through Case in Point, listeners will gain insights into topics where the law significantly intersects with their day-to-day lives, from their health insurance coverage, to finance, to the schools their children attend,” said Wendell Pritchett, Interim Dean of Penn Law and Presidential Professor. “This podcast is an opportunity for us to bring the engaged work of Penn Law and other leading experts directly into listeners’ earbuds, anywhere in the world.”

“Case in Point transforms the connection between the latest scholarship in the law and solutions to the key issues in our society,” said Paul G. Haaga, Jr. L’74, WG’74, a member of NPR’s board of directors who served as NPR’s interim CEO from 2013 to 2014. “Through its innovative format, the series has created a lively venue where audiences can access an array of experts addressing topics that impact all of us.”

While many academic podcasts repurpose lectures and other events for broadcast, each episode of Case in Point contains wholly original content developed expressly for the medium. The program is produced at Penn Law, with Penn scholars and a host appearing in-studio; outside experts participate in the program remotely via video link. Episodes are available in both video and audio-only formats in iTunes, SoundCloud, and via caseinpoint.org.

Read rest here.

"Study: People prefer mediation in civil cases"

From the article with the above title (Sacramento Business Journal):

People involved in civil lawsuits prefer mediation to nonbinding arbitration and like judge trials better than jury trials, a new study by a University of California Davis law professor concludes.

Overall, litigants like mediation, trials before judges and negotiations that include participants along with their attorneys more than all other forms of alternative dispute resolution, the study by Donna Shestowsky shows.

Click to read the rest of "Study: People prefer mediation in civil cases." The article includes this link: "The Psychology of Procedural Preference: How Litigants Evaluate Legal Procedures Ex Ante" (Iowa Law Review).

US District Court Judge John L. Kane on lawyer suicide and the billable hour

In response to the article "Why are lawyers killing themselves?" (cnn.com), Judge Kane wrote the following (posted with his permission):

As for lawyer suicides -- and I'm not trying to be flippant--- I think they are billing themselves to death.  The constant pressure to generate income by billing on an hourly basis is far more stressful for a trial lawyer than trials.  In fact, less than 1% of cases now go to trial.  The courts have become settlement bazaars.  The clients are always unhappy with the costs and the firms are unforgiving in their income generation expectations.  Transactional lawyers may get bonuses from their clients ---- after all it's a business deduction----- but most trials are paid with after tax dollars or by very parsimonious insurance companies.  And a return on the investment in terms of a successful result not delayed further by appeals is never guaranteed or even a sure thing.

The billable hour is one of the worst things about practicing law.  In addition to all its other evils, the billable hour is an open invitation to cheating at the cost of one's self-respect.  Also, remember in Hamlet's To Be Or Not To Be soliloquy, one of the reasons he posits for committing suicide is "the law's delay."  That delay is bad for the client, but it's the daily fare for the lawyer repeated with almost every case.  One of the rarest things to happen to a trial lawyer (only twice in my fifteen years) is to have a client say, "We lost, but I couldn't have asked for a better lawyer."

Of the many reasons why our system would be so much better with a barrister/solicitor bifurcation is that barristers are not allowed to set fees or engage in billing and collecting them.  Such is done by the "clark", the Clerk of Chambers who in England makes more of an  income than the barristers he shepherds.  They likewise cannot be sued for malpractice nor sue for a fee.  I hear that is changing in England and the barrister/solicitor separation is withering away.  Strangely, this is not because barristers want more, but because the very large solicitor firms want in and more control over the conduct of the case.  With that, of course, goes the high standards of ethics and prestige barristers have; they go down the drain.

The Q.C.rank of the best barristers is the source of appointment to the judgeships on the High Court.  S.C. (for state counsel) is the equivalent in Ireland and is alive and well, so far.  I think that is true of New Zealand, Australia and perhaps others islands of the declining empire, but it's gone in Canada and India.

I am very curious what correlation there might be between suicide rates for barristers compared with solicitors.

Interested in memory? Here's a good interview of Dr. Elizabeth Loftus

Click to watch a video of Carol Tavris interviewing her friend and memory expert Elizabeth Loftus. It includes some very interesting history of the repressed-memory wars, and some stories about well-known court cases. Loftus also talks about memory engineering.

Click to watch other interviews at the Association for Psychological Science Web site, including interviewees Daniel Kahneman, Jerome Bruner, and Michael Gazzaniga

Does the medical profession have a problem with respect? How about the legal profession?

Lack of respect for patients and coworkers may be a factor in mistakes made in healthcare settings. Is there a similar problem with respect lacking in the legal system? From "Why Patients Leave Hospitals With a Bad Taste In Their Mouths" (Pacific Standard online):

Disrespect, Lucian Leape believes, is the elephant in the hospital.

According to the adjunct professor of health policy at the Harvard School of Public Health, disrespect is the reason why so many patients leave the E.R. feeling belittled or ignored. It’s why medical workers feel so “demoralized.” And it’s why—despite attempts at change in the last decade—we still see medical errors that cause needless suffering and even cost lives.

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In a pair of papers published in July in the journal Academic Medicine, Leape and his co-authors outlined six categories of disrespect, ranging from the obvious to the subtle. On one end lies the overtly disruptive behavior: the angry outbursts, swearing, and bullying. More common is humiliating and demeaning treatment (by teachers to medical students, surgeons to nurses, physicians to patients). But there are also behaviors and

"Minding the Court: Enhancing the Decision-Making Process"

"Minding the Court: Enhancing the Decision-Making Process" is a white paper of the American Judges Association.

Extract from Executive Summary:

Scientists carefully study how our brain processes information, though judges rarely consider these studies. But this research has great potential significance to judges, who spend much of their time making decisions of great importance to others. Although the study of how the brain processes information is an evolving one, the information now available can help judges to make better decisions.

Much of the processing for simple tasks—called reflexive processing—occurs in the background, while most of us solve riddles or math problems through reflective processing, which is deliberate and conscious. The reflective system has a limited capacity, so we operate on a principle of least effort, tending to rely on the reflexive system when possible. To do so, we often use what scientists call schemas, in which characteristics of objects, people, or behaviors coalesce into an easily recognizable pattern (like our ability to tell that a red octagon in the distance is a stop sign).

Heuristics are schemas that are based on only part of the information available— letting us make decisions more quickly. But heuristics can be faulty in a variety of ways. And since heuristics (like all schemas) operate in the world of unconscious, reflexive processing, we can easily make errors without recognizing the source of a faulty decision. Anchoring is one of these heuristics: for example, a person is likely to give a higher or lower estimate of damages if a particularly high (or low) figure is introduced early in the process. That number—even if far off the mark—tends to act as an anchor around which later estimates are formed.

Implicit biases, another type of schema, also threaten fair processes and just outcomes. They are based on implicit attitudes or stereotypes that operate below the radar, and judges have been shown susceptible to them as well.

But most behaviors and decisions result from a combination of both reflexive and reflective processes, so there are ways to lessen the effects of faulty heuristics and implicit biases. One step

US District Court Judge John Kane discusses sin, liberty, and the law

Click to listen to a talk given for Judge Kane to Colorado radio station KVNF. The talk is titled "Sin, Liberty, and the Law." He's introduced by Sally Kane, his daughter and the executive director of KVNF.

Be sure to listen to the question-and-answer session, too. Judge Kane says much of interest, including that, in the last 30 years, our nation has lost its moral compass.

Complete text of law review edition devoted to Therapeutic Jurisprudence and Comprehensive Law

Phoenix Law Review dedicated its latest edition to the topic of therapeutic jurisprudence. Click to read it [pdf]. Table of Contents:

FOREWORD

AN UNSHACKLED LAW REVIEW AND ITS GROUND- BREAKING ANNUAL ISSUE ON THERAPEUTIC JURISPRUDENCE AND COMPREHENSIVE LAW . . . . . . . . . . David B. Wexler    671

ARTICLES FROM PRACTITIONERS
USING THERAPEUTIC JURISPRUDENCE TO FRAME THE ROLE OF EMOTION IN HEALTH POLICYMAKING . . . . . Amy T. Campbell 675

MULTISENSORY LAW AND THERAPEUTIC JURISPRUDENCE: HOW FAMILY MEDIATORS CAN BETTER COMMUNICATE WITH THEIR CLIENTS . . . Colette R. Brunschwig    705

BOOK REVIEW: KENNST DU DAS RECHT? EINSACHBUCHFU ̈RKINDERUNDJUGENDLICHE [DO YOU KNOW THE LAW? A SPECIALIZED BOOK FOR CHILDREN AND ADOLESCENTS] . . . . . . Colette R. Brunschwig    747

MAINSTREAMING THERAPEUTIC JURISPRUDENCE INTO THE TRADITIONAL COURTS: SUGGESTIONS FOR JUDGES AND PRACTITIONERS.............. Hon. Michael D. Jones    753

ELEVATING THERAPEUTIC JURISPRUDENCE: STRUCTURAL SUGGESTIONS FOR PROMOTING A THERAPEUTIC JURISPRUDENCE PERSPECTIVE IN THE APPELLATE COURTS ......................... David B. Wexler 777

THERAPEUTIC JURISPRUDENCE ACROSS THE LAW SCHOOL CURRICULUM: 2012............... David B. Wexler 791

OUTSTANDING STUDENT ARTICLE
HAWAIIAN BURIAL RIGHTS: THE REGRETTABLE BURIAL OF A RICH CULTURAL HISTORY BENEATH URBAN DEVELOPMENT . . . . . . . . . . Todd Dickenson 811