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Archive for June, 2013

On soft skills

Our recent guest blogger, Desiree Moore just posted on Attorney at Work about the importance of interpersonal skills for new lawyers.  Desiree is always worth a read.  And it’s worth spending a few minutes getting familiar with the Attorney at Work site as it has a wide range of interesting material on legal practice management, marketing of legal services, business and professional development and other practice relevant topics.

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Contracts in the real worldIf you want a great law or law-related book to read over the summer, I strongly recommend Contracts in the Real World by Professor Lawrence Cunningham.

The book has many virtues.  In it, Cunningham, a former co-editor of Corbin on Contracts, vividly demonstrates how the principles deriving from classic cases in the Anglo-American canon – cases such as Carlill v Carbolic Smoke Ball Co, Sherwood v Walker, and Peevyhouse v Garland Coal – continue to be directly relevant to the resolution of modern day disputes.   His story is about the enduring stability, adaptability and relevance of the common law.  To take but one example, it is a story of how nineteenth century cases about the shipping of cotton (Raffles v Wichelhaus) affect the resolution of disputes about whether users who download software are bound by license terms (Specht v Netscape Communications).  The book is highly engaging because many of the contemporary disputes that Cunningham discusses involve celebrities (such as Donald Trump, Lady Gaga, Eminem, Paris Hilton and Sandra Bullock) or are related to major events (such as the financial crisis or the Madoff scandal).

For Cunningham, contract law doctrine serves practical ends and strikes a middle path between private autonomy and government intervention in the market.  Refreshingly, he rejects grand theories of contract law, writing in the introduction that, “[i]f pressed, the best way to account for the vast run of contract law doctrine is pragmatism –  a search for what is useful to facilitate exchange transactions people should be free to pursue.”

I look forward to using Cunningham’s book to enhance my teaching of the subject.

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In a moment of distraction, I stumbled across an article by R. Lisle Baker and Daniel P. Brown entitled, “On Engagement: Learning to Pay Attention”.  Here’s the abstract:

“In an age of electronic and mental distraction, the ability to pay attention is a fundamental legal skill increasingly important for law students and the lawyers and judges they will become, not only for professional effectiveness, but also to avoid error resulting from distraction. Far from being immutable, engaged attention can be learned. More specifically, with an understanding of how the attention system of the brain works, carefully designed mental practice can over time enhance an individual’s capacity for focused attention, not only psychologically but also over time apparently altering the physical structure within the brain itself. The result can be improved ability for law students to focus attention, to stay calmly on what is intended, without being distracted by irrelevant thought or sense experience, avoiding wasting scarce time and energy otherwise lost to internal or external distraction. Ironically, learning this attentional skill requires temporarily quieting the active process of elaborated thought that law students, lawyers and judges pride themselves on having developed as part of their legal education. In the process, however, a collateral benefit of this practice is also an enhanced ability to be self-aware, hopefully providing law students, lawyers and judges an increased capacity to respond, rather than just react, to legal problems and the human thoughts and emotions that come with them when they arise.”

The thesis of the article goes something like this.  Paying attention matters.  Paying attention is as important a lawyering “meta skill” as preparation.  Paying attention is about concentration and about human engagement.  Paying attention is a skill that can be learned and (implicitly) is something law schools should be teaching.  The article contains useful insights into the psychological benefits of several specified types of meditative and mindfulness practice that seem to enhance human capacity for task focus and people (therefore client) focus.

I think there is much in the article that is worth exploring further and it adds to a growing body of interesting work on “mindful lawyering” to which others, such as Leonard Riskin, have made significant contributions.  Evidence from studies in psychology and neurobiology suggests that we should not simply dismiss the claims of the “mindfulness” movement as just another load of old repackaged hippie nonsense.  As regular readers will know, I’m strongly in favour of any approach that may enhance the ability of law students to learn and humanize the practice of law into the bargain.

One caveat.  There seems to be an assumption that the present generation of students is somehow more distracted than we who reached adulthood before the onset of the digital age.  I understand why the assumption is made.   There’s more stuff that whirs, bleeps, and pings these days.  But I’m not sure that I was any less prone to distracted mind wandering back in the day than my current students are today.  As Michael Fleming suggests in his thoughtful comment on a previous post, some “digital natives” combine the ability to focus intensely with an enhanced capacity for multi-tasking.  Paying attention is one way to manage distraction and screen out irrelevancy.  But, let’s face it, most of the time lawyers have to juggle and prioritize many tasks that are all relevant.  And multi-taskers are accomplished jugglers.

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