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Can mindfulness actually deliver results in the courtroom? Earlier this summer, after a fiercely contested federal trial, a jury entered a verdict in favor of my firm’s client. The opposing party had a sympathetic story and, in the days leading up to trial, her lawyer even guaranteed “100%” that they would win. Winning any trial is a thrill, and this one was not easy. It certainly helped that the facts were on my client’s side. Additionally, I was not alone; I had the critical support of an amazing trial team in the courtroom and a caring spouse at home.
However, it is also indisputable that a few simple mindfulness practices helped me perform at my highest level as a trial lawyer. Mindfulness has been defined as “the practice of maintaining a nonjudgmental state of heightened or complete awareness of one’s thoughts, emotions, or experiences on a moment-to-moment basis.”[i] Even though I slept less, I felt more rested. Even though I over-analyzed the case less, I was better prepared. Mindfulness helped me calmly communicate to the jury and deliver this great result for our client.
Every trial lawyer, indeed, every working professional, should strongly consider implementing some regular mindfulness practices. This article will first outline a few of the benefits I recently experienced as a trial lawyer and then provide tangible suggestions on routines to try.
No More Opening Statement Jitters
In the modern practice of law, jury trials are infrequent. “Although civil case filings in federal courts, where the data are most reliable, have increased fourfold since the early 1960s, the percentage of civil cases disposed of by jury trial decreased from approximately 5.5% in 1962 to 1.2% by 2002 and to 0.8% by 2013.”[ii] The reasons for the decline in the proportion of cases being resolved by trial over the last several decades are complex and subject to debate. However, it is indisputable that the courthouse closures caused by COVID-19 and the resulting backlog of cases have also contributed to many more cases being resolved through out-of-court settlements. It is clear that for today’s litigator, trials are less frequent.
This lack of time in trial can produce anxiety for lawyers when the time comes to have their client’s fate decided by a judge or jury. In years past, I would get nervous the moment the jury panel entered the courtroom. Thankfully, a few simple phrases adopted from various mindfulness books and podcasts vanquished any nervous energy at my most recent trial. I was able to confidently look jurors in the eye and share my client’s story. I sensed some nervous energy building as members of the media, courthouse staff, and my coworkers (often-times the toughest critics) entered the courtroom to watch opening statements. I repeated the phrase “I am here now” to myself. This short sentence, common in mindfulness training and meditations, reminded me to stay present in the moment and tuned out all distractions.[iii]
Later in the week, as I waited my turn to give my closing argument, I caught my mind wandering about what might happen when the jury began deliberations later that afternoon. I remembered a phrase used by some meditation teachers and professional athletes: “Be where your feet are.” Looking down at my own shoes in a federal courthouse felt silly, but it helped me avoid worrying about the future and reset my focus on giving the best argument possible.
Less Sleep and Less Tired?
Thanks to working long hours preparing for trial, I was not getting the ideal quality and quantity of sleep. However, I had more energy during the day after I spent ten minutes each morning focused on mindfulness. I first spent about five minutes doing some simple stretches, but nothing graceful or sophisticated enough to be considered yoga. I then spent another five to eight minutes doing a guided mediation using the free Guided Mind application on my smartphone. While I have always been too impatient and busy to meditate on a daily basis, it was easy to follow along with the instructors’ calm instructions to focus on breathing. Starting my day at peace boosted my energy to power through the day’s work.
More Confident with Adaption
Minutes before my recent trial, a relevant conversation between the litigants took place in the back of the courtroom. When my client shared what she was told by the plaintiff, I faced a crossroads. In years’ past without the benefit of mindfulness practice, I might dismiss it and be too stubborn or worried to incorporate it into my trial presentation at the last minute. Instead, I was confident enough to improvise. I took a deep breath and immediately adapted our trial plan for several witnesses to use this new information to our benefit. That pretrial conversation came out in testimony and was highlighted in my closing argument.
How to Get Started
Like establishing any new habit, the biggest challenge is getting started. As many others, I am guilty of procrastinating in implementing healthy habits. I have always been too easily distracted to get through a long meditation. As a father to a newborn baby, I even had a built-in excuse to push off mindfulness training until the planets aligned and my schedule magically cleared. One day, I finally appreciated that lamenting that “I don’t have time for mindfulness today” was just a lie that ignored the simple fact that we all have the same 24 hours in the day. Instead, I needed to be ruthless in prioritizing the things in my life that matter the most. In the weeks leading up to my trial, I committed to just ten minutes a day to incorporate the simple habits described above. There are countless options and I encourage you to try (and fail!) at them to find what works for you. If you are unable to sit quietly and focus on your breathing, use a guided mediation from one of the countless meditation applications. If you feel like you need more energy, perhaps the movement of a yoga class in person or on YouTube will pleasantly surprise you. If you would like to learn more about mindfulness, there are countless books and podcasts available that further describe the benefits and offer more tactical suggestions.[iv] I recommend starting small and try to avoid judging yourself for not being perfect in whatever new practice you try. If you commit to just 10 minutes a day for 10 days of a mindfulness practice, I am confident you will see benefits. It might even help you win your next trial or close your next deal.
Roger Feicht is a board certified litigator who focuses his practice defending and prosecuting employment related lawsuits. Roger represents employers and employees in litigation relating to allegations of discrimination and harassment, and disputes over non-competition or non-solicitation agreements. Roger regularly assists businesses with hiring and firing of employees, and drafting and enforcing employment agreements and policies.
Roger has received an AV Preeminent rating from Martindale-Hubbell, the highest rating awarded to lawyers by their peers for legal ability and professional ethical standards. Roger has also been recognized numerous times as a “Rising Star” by Florida Super Lawyers (2016-20).
Roger joined the Firm after serving as a judicial intern for The Hon. James Moody Jr. of the Middle District of Florida. He is deeply involved in the local community and currently serves on the Palm Beach County Bar Association’s Judicial Relations and Professionalism Committees.
[i] “Mindfulness.” Merriam-Webster.com Dictionary, Merriam-Webster [Last visited Aug. 17, 2022]. [ii] Reasons for the Disappearing Jury Trial: Perspectives from Attorneys and Judges, Shari Seidman Diamond and Jessica M. Salerno, 81 La. L. Rev. (2020). [iii] See You Are Here: Discovering the Magic of the Present Moment, Thich Nhat Hanh (2010). [iv] See The Six-Minute Solution: A Mindfulness Primer for Lawyers, Scott L. Rogers (2009).