8.6: Weeks 9 and 10 Narrative

Weeks Nine and Ten Narrative

This period continues the students’ consideration of how they might use mindfulness as they develop lawyering skills and values. Further, they consider whether, as posed by some, mindfulness could be an impediment to a lawyer’s ability to be a zealous advocate.

These two weeks also see students return to the reading of multiple law review articles. Although I have tried to select articles that are on the shorter side, or assign only portions of articles, the law review readings are not spaced throughout the semester as evenly as might be desirable. This is, at least in part, the product of several considerations. For this course, I chose to front load student exposure to mindfulness pioneers who have developed and studied some of the science as well as to multiple mindfulness techniques and practices. Also embedded early in the course are a plethora of resources that will be helpful to students as they develop their mindfulness practice. Lastly, the first part of the semester also strives to be sure that students understand the extent of the distress within the legal community and the potential benefits of mindfulness to counteract that distress.

The second part of the semester is more heavily weighted to mindfulness as it intersects with the skills and ethics of lawyers. Naturally, therefore, the second part of the semester has more law review articles by law professor proponents of mindfulness in law practice.

Students start with considering whether mindfulness can help achieve a more open mind and, if so, whether that is a virtue for a lawyer. In the reading for this class, the students will ponder whether mindfulness and any resulting tendency to increased open mindedness, are important components to culturally competent lawyering.

Travelling from open mindedness, students go on to consider the interplay between mindfulness and negotiation and mindfulness and ethical lawyering. These two topics –negotiation and ethics—comprise the most extensive academic legal literature on mindfulness and law practice. Indeed, there are entire courses on exclusively mindfulness and ethics or mindfulness and negotiation. Thus, anyone teaching this class has multiple resources from which to pull material for students. In making some hard choices here, I defaulted to my commitment that, for this course, shorter is better. We know, intuitively, that longer, denser readings do not necessarily make for better student comprehension and learning.

Students are also asked to consider the critique that mindfulness will, should, perhaps must, guide the practitioner to interconnectedness with other beings. And that interconnectedness, the theory continues, will cause lawyers to be less zealous on their clients’ behalf out of concern of inflicting detriment upon the opposing side. Students read two articles debating this viewpoint and are asked to come to class prepared to articulate their position. It promises to be interesting. And perhaps more importantly, it requires students to consider a core criticism of mindfulness and lawyering: asking, to borrow the phraseology of a law review article that the students are reading, “can saints negotiate”?

Ending this module, students will take a step back and look at legal education through a slightly broader lens. They read an article by Rhonda Magee, a very early proponent of mindfulness and legal education, now prominent on national and international scale. Magee discusses some of the changes in legal education that move away from traditional Langdellian casebook/Socratic method modes of teaching into a more “contemplative” sphere. The path of the change that Magee hopefully forecasts is uncertain, but the article seems well poised to have students contemplate possible benefits of some newer and different ways to learn the law.