By Dr. Ken Broda Bahm:
A couple of weeks ago I was working with a trial team and was present when one lawyer was profusely apologizing to another for wanting to go home. She knew there was still work to be done, she said, but she wanted to see her son before he returned to college. It was 9:45 at night. That dynamic can be pretty familiar for trial veterans. The stakes, the volume and difficulty of work, and the team structure can all create a psychology that discourages and penalizes that most basic of human needs: rest. I once worked for an attorney who saw it as a sign of weakness if any members of his team wanted to eat lunch. He ate very late at night, he explained, only when he was too exhausted to do anything else. That might feel productive, but it isn’t. Any short-term advantage in making a little more progress in the moment is going to be outstripped by the long-term harm. And it is not just that exhaustion leads to mistakes. It is that, without a chance to pause, there is also no time to reflect and to relax into the kind of quality thinking and assimilation that a complex litigation situation demands.
Research confirms that rest and reflection improves processing and learning. A recent study reported in Psyblog (Schlichting & Preston, 2014) provides fresh confirmation of the cognitive benefits of relaxation. Study participants who were able to take a break to reflect on what they had learned were able to perform better on subsequent memory tasks. Dr. Alison Preston of the University of Texas at Austin explains the reasoning behind the results: “We think replaying memories during rest makes those earlier memories stronger, not just impacting the original content, but impacting the memories to come.” That experimental finding is buttressed by my own practical experience as part of many trial teams. A “No Rest for the Wicked” attitude is sometimes necessary for short sprints during emergencies, but over the marathon of a long trial it ends up holding parties and witnesses back from optimal performance
Experienced trial teams know that some rest and reflection helps. There are kinds of background processing and creative idea-generation that are able to kick in only when we are able to relax and free ourselves from routines and deadlines. But an understanding of the benefits of that kind of retreat is always at risk of being set aside as soon as things get busy. For litigators and the consultants who work with them, here are three ways that we can take an appreciation for the benefits of rest and reflection more seriously.
Rest and Reflection for the Trial Team
Different teams have different methods for seizing some rest where they can. Some lawyers just need some time away — and I say, take that time without guilt — while other lawyers can get the same level of rest just by taking social breaks to share the day’s war stories and jokes in a more relaxed setting. In both cases, the rest from the “real work” is still serving a very real function, and the team as a whole — especially its leaders — should respect the downtime.
Rest and Reflection in the Mock Trial Design
A mock trial generally packs much into the design: There is a lot to test and only a little time. Mock jurors, however, need at least a little time to rest and reflect on what you’re giving them. It is easy to say and harder to do, but don’t skimp on the breaks you are giving to participants. In a one day mock trial, it often occurs that deliberations follow the lunch break, and that is a good thing: Mock jurors will probably be more focused and productive once they’ve had a chance to let the information sink in and settle a bit. The same goes for mock trials that extend into two or more days. The time off between days will help mock jurors process information, just as it does for the actual jurors in trial.
Rest and Reflection for the Actual Jury
I’ve noticed that lawyers on both sides, whether winning or losing, tend to be suspicious or even superstitious about gaps. They worry about the long holiday weekend that follows openings, or the delay in trial that comes before closing. There is a tendency to worry that, if time passes between the delivery of a message and time that fact finders are going to act based on that message, then the attorney will have lost influence. What the research tells us is that a period of reflection isn’t a bad thing and is key to the self-persuasion that is really going on. Of course which side the reflection will favor is a matter of speculation, and it is going to depend on the case facts. But if, for example, your case depends on jurors getting past an easy or “obvious” answer in order to work their way to the harder answer, then you would want that time for rest and reflection. That gap may well increase the chances for a result that comes from greater cognitive effort.
As for you, if you’re planning a vacation two weeks before trial, or if you need to cut out of your team’s prep session in order to take in your kid’s ball game, go ahead and take off. Tell them, “I’m not slacking…I’m reflecting.”
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Other Posts on Balance:
- Smile (For Credibility and Affect)
- Mix Creativity With Dogged Persistence When Preparing for Trial
- Don’t Forget About Happiness
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Schlichting, M.L. & Preston, A.R. (2014). Memory reactivation during rest supports upcoming learning of related content PNAS 2014 ; published ahead of print October 20, 2014, doi:10.1073/pnas.1404396111
Image Credit: Rameez Sadikot, Flickr Creative Commons (Edited)
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