2015.64: Functional Mindfulness II

In medieval Europe litigants would arm themselves and beat the hell out of each other to resolve what might now be considered legal issues. The loser was obviously in the wrong. Some litigants could select champions to do their fighting for them. I doubt that this happened often1 but it would have been in both the litigant’s and his champion’s interest for the champion to be as good at his job as possible: shattered bones aren’t healed by “I spent all the time I possibly could to prepare for this. I did the best I can. And I am a good champion.

Anyway, “trial lawyer as swordsman” is not a huge metaphorical stretch.

In Keith Johnstone’s Impro for Storytellers 2 he relates:

A Japanese swordsman wrote that if you fight someone who has no plan, you’ll be thinking, I’ll do such and such! as your severed head bounces down the temple steps!3

Johnstone is, I suspect, paraphrasing this Munenori quote:

Once the fight has started, if you get involved in thinking about what to do, you will be cut down by your opponent with the very next sword blow.

Doing without thinking is functional mindfulness (or being “in the moment” on stage, “in the zone” on the sports field, or “in the flow” in the studio). When you’re mindful, you do everything that needs to be done at the right time but nothing that doesn’t need doing, all without thinking about it, and it all goes by effortlessly. You start trial, you notice everything, you respond appropriately, and suddenly it’s time to go home for the night and you’re not ready to stop telling your client’s story yet.

Does that sound like something you might like? Being the guy with no plan, aware of everything going on around you and dealing with it unhesitatingly, instead of the guy whose head is bouncing down the steps? Flowing through trial, and winning?

Would you like to learn the One Cool Trick for doing without thinking in trial? If someone who taught mindfulness for lawyers could teach you that, how much would it be worth to you?

Well, you’re out of luck. Life is pain, princess. Anyone who tells you otherwise is selling something.

Functional mindfulness is not a means but an end. The swordsman is not deadly because he is mindful; it is his deadliness that makes him mindful. He can do without thinking because he has practiced every parry and cut a thousand times learning and ten thousand more times polishing. The swordsman doesn’t think about what he is going to do because he doesn’t have to. In battle his training and experience will take over. Like his breathing, his technique will take care of itself. In the honing of his craft, he has found mindfulness.

Have you done your ten thousand reps? If not, get to it.

If the stresses of life interfere with your doing your job—helping your clients—you might try meditation to help you deal with those. An abstract mindfulness practice is good for making everything else less stressful so that you can focus on the thing of paramount importance. Defending people will be stressful. Defending people should be stressful. Your client’s future is at stake, and you will make mistakes. “I did the best I can. I am a good lawyer.” is not an appropriate response to the mistakes that you made that might have harmed your client.

If you want to be a better lawyer, do your ten thousand reps, and beat yourself up about every loss or almost-loss. Once you’ve done your ten thousand reps and have technique to burn, you’ve probably found functional mindfulness on your own.


  1. Most lawyers are exceedingly trial-averse; how much more trial-averse would litigants and their representatives be if losing meant disfigurement or death? 

  2. Swordsmanship, trial, improv: it’s all the same thing. 

  3. Then Johnstone adds, “Well, he didn’t put it exactly like that.”  

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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4 Responses to 2015.64: Functional Mindfulness II

  1. Alex Bunin says:

    Regarding footnote 1, um, in Texas death is a possible outcome for some folks in capital cases. Luckily, none yet this year. We do seem safe from disfigurement as a possible result, although I have badly stubbed my toe after things went awry at trial.

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