April 20, 2019

Archives for March 18, 2015

The Future of Law (Part Ten): Mindfulness Doesn’t Mean Wimpy Lawyers

rhodesMindfulness is another trend driving change in the law. Here’s DU Law professor Debra Austin’s definition from her Killing Them Softly law review article:

[M]indfulness is attention without labels, ideas, thoughts, or opinions. Mindfulness means “being fully aware of something” and paying attention to the moment, with acceptance and without judgment or resistance. It requires “emotion-introspection rather than cognitive self-reflection,” and specifically does not involve the analysis of thoughts or feelings. Mindfulness is a form of self-understanding involving self-awareness rather than thinking.

My CLE workshops don’t talk about or teach mindfulness, but they do require comparable reflection and self-awareness. Occasionally someone worries out loud that too much of this kind of thing will make you lose your edge, become less zealous as an advocate.

In other words, mindful lawyers are wimps.

I don’t know about you, but the most mindful people I know are rarely comfortable to be around. Penetrating, insightful, honest, no-nonsense, yes. Laid back and careless, no. The “mindfulness is for wimps” assessment no doubt comes from the Legal Borg, which has its own issues with fostering cognitively- or chemically-impaired lawyer brains, and never mind that there’s plenty of research and experience out there to support the notion that mindfulness provides a competitive advantage.

Judging from the strength of the mindfulness trend, this is another area in which the Legal Borg is losing its grip on the legal profession’s cultural ethos. An ABA Journal article last year announced that “Mindfulness in Law Practice is Going Mainstream.” As evidence of that, check out these resources:

Mindfulness in Law: Articles, books, websites, exercises, with categories for bar associations, law schools, the judiciary, and lawyer groups.

The Mindful Lawyer: More programs, resources, events, and articles, collected by lawyer and educator Scott Rogers, founder and director of the Institute for Mindfulness Studies, the University of Miami School of Law.

How will the mindfulness trend change the law?

  • We will see the emergence of new “best practices” that address and reverse areas of chronic dissatisfaction with the law among both lawyers and clients. For example, toxic stress and intentional destruction — both uncivil behavior toward other lawyers and self-destructive lawyer responses to stress — will simply no longer be tolerated in the legal profession or the legal marketplace.
  • In their place, mindfulness practice will foster a new kind of “thinking like a lawyer” that will create new laws and legal procedures characterized by the kinds of benefits mindfulness produces in the individuals who practice it — e.g., decisiveness, clear thinking, intolerance for “brain noise” (drama, distraction, histrionics), and an uncanny awareness of invisible factors driving behavior.
  • As the law takes on the characteristics of mindfulness practice, the result will be more self-appraising, self-guiding, and self-correcting pathways to legal end results. The result will be more efficient and satisfying legal options and outcomes.
  • A new equity system — maybe formal, certainly informal — will arise in which the process of getting to results through informed collaboration will be valued, encouraged, and enforced.

Next in our excursion into futurology, we’ll look at the increasing polarization of three divergent pathways in legal practice and the law: commoditizing, expertise, and mastery.

Kevin Rhodes’ Legal Connection blog posts for the past three years have been collected into an ebook which is currently available as a promotional free download from Smashwords, Barnes & Noble, iTunes, and Scribd, and for a nominal price from Amazon. For those who prefer to do their reading in hard copy, the collection will soon be available in that format (details to follow).

Appointment to Supreme Court Nominating Commission Announced

On Tuesday, March 17, 2015, Governor Hickenlooper announced the appointment of Tracee Marie Bentley of Severance to the Supreme Court Nominating Commission, to serve as a Republican and a non-attorney from the Fourth Congressional District. Bentley’s term will expire December 31, 2020.

The Supreme Court Nominating Commission reviews applicants and selects nominees for vacancies on the Colorado Supreme Court and Colorado Court of Appeals. The Supreme Court Nominating Commission comprises one attorney and one non-attorney from each of Colorado’s seven congressional districts, plus one additional non-attorney and the Chief Justice of the Colorado Supreme Court as committee chair and ex officio member.

Colorado Supreme Court: Defense Counsel Failed to Object to Erroneous Statement of Law and No Plain Error

The Colorado Supreme Court issued its opinion in Martinez v. People on Monday, March 16, 2015.

Objections—Plain Error—Sufficiency of the Evidence.

In this case, the Supreme Court considered the effect of an erroneous deliberation instruction in a first-degree murder trial where defense counsel’s trial objection failed to identify the ground that rendered the deliberation instruction erroneous. The Court held that the plain error standard applies because the defense objection provided the trial court with no meaningful chance to avoid the instructional error. The Court concluded that the instructional error did not merit reversal under the plain error standard because overwhelming evidence proved that defendant deliberated, and the jury instructions as a whole adequately explained the law. The Court also held that there was sufficient evidence for the jury to convict defendant of first-degree murder after deliberation. The judgement of the court of appeals was affirmed and the case was remanded with instructions.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Burden Shifted to Water Right Holder to Prove Excuse for Non-Diversion of Water Right

The Colorado Supreme Court issued its opinion in Wolfe, P.E. v. Jim Hutton Educational Foundation on Monday, March 16, 2015.

Presumption of Abandonment—Nonuse of Decreed Diversion Point—CRS § 37-92-402(11).

The Supreme Court held that when the State and Water Division Engineers prove that the water-right holder has not used the decreed point of diversion for ten years or more, the Engineers trigger the rebuttable presumption of abandonment under CRS § 37-92-402(11). Once triggered, the burden shifts to the water-right holder to demonstrate a lack of intent to abandon. Because the water court erroneously believed that proof of nonuse at the decreed point of diversion was insufficient to raise the presumption, it failed to require evidence excusing such nonuse to rebut the presumption. The Court therefore reversed the water court’s judgment and remanded the case for reconsideration of whether the Jim Hutton Educational Foundation met its burden of rebutting the presumption of abandonment.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 3/18/2015

On Wednesday, March 18, 2015, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

Nixon v. Pryor

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.