The Mindful LawyeR®

Institute for Mindfulness Studies

Mindfulness Memo

To:      You

From:  Institute for Mindfulness Studies

Date:   May 15, 2010

Re:      The Neuroscience of Defaults and Default Judgments

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Question Presented

What happens to the brain when it is at rest, and does it matter what one does during these times in terms of performance and well-being?

Answer

As it turns out, the brain is never actually at rest.  Even when the mind goes blank or one is bored, there is a great deal of neuronal activity taking place -- sometimes even more than when one is engaged in thought on an external event.  This state is known as the “default” mode, and, as is discussed in this month’s Mindfulness Memo, the parallels between the law and mindfulness are illuminating.  Even more, performance and well-being are influenced by the kind of awareness one brings to these moments.

Discussion

The Default Motion

In the law, a "default" occurs when a party against whom a complaint has been served fails to file a response within the prescribed time.  In today's economy, more defaults are taking place as parties either do not have the money to defend an action or lack a sufficient interest in the property at issue to fight for it.  As a result, attorneys are more likely to obtain a default paving the way for an uneventful resolution. In the adversarial world of the law, the whole thing can be sort of boring.

Whereas defaults are obtained in the circuit court system, a different kind of default is obtained in the neural circuit court system (that's neural, not neutral).  And just as in the legal system a default can be boring, it is precisely when things get boring that the default become relevant in the neural circuitry.

The Default Network

Neuroscientists have identified a network of neural activity that kicks in when your brain is "at rest," or more specifically, not attending to a particular external task or event. Examples include mental activity while driving on the highway, sitting in a waiting room, or being asked to not focus on anything in particular.  As we'll explore in this month's Mindfulness Memo, the quality of your awareness when the default network is engaged can make a profound difference in your work and life, and mindfulness practices can be very helpful in this regard.  

The Court Calling A Recess

Scientists used to believe that when people were not preoccupied with something in the external environment (for example, sitting at their desk taking a breather from crafting a motion for default), their brains would also take a breather, toning down neuronal activity and conserving precious glucose (fuel).  It was as if the neural circuit cortex called a recess. This would be the case, it was presumed, when driving, sitting around feeling bored, or being asked to focus on nothing. As it turns out, during these times, the brain is quite active, with an elaborate electrical conversation taking place between different parts of the brain. A neuroscientist will tell you that an area of the brain called the medial prefrontal cortex begins to fire in synchrony with distant regions such as the posterior cingulate and the precuneus, sites in the brain associated with daydreaming, envisioning the future, retrieving memories, and empathy. And so as the external world tones down, an internal one comes to life.

Wandering vs. Wondering

The default network generally gets a bum rap as it is regarded as a state of mind prone to wandering. Like the circumstances surrounding a blasé default, it is easy to get bored and when we get bored, the mind may wander in search of something more interesting.  As you may know from your own experience, the wandering mind can quickly move from distraction to distraction during which it runs into a host of challenging internal experiences like rumination, self-judgment, doubt, regret, and worry.  

At the same time, research also notes the connection between default mode and daydreaming, and the ways in which certain brain states become more integrated, leading to bursts of creative activity and even genius.  For example, science writer Jonah Lehrer tells the story of 3M engineer, Arthur Frye, who would often fumble with bits of paper he used to mark different hymns in his bible.  One day during a sermon his mind began to wander as he starting thinking about his bookmark problem.  As he was wondering about it, he experienced an a-ha moment that led to creation of the world's most popular business product, the "Post-It" note.

Since the mind wanders with great regularity, and such wandering appears to be the source of both perspiration and inspiration, you might think this leads to an impasse.  Today's mindfulness memo offers a method of discerning the mind's activity when the wandering begins so as to not get caught in the reactive thinking that leads to regret and worry, while at the same time finding joy in the wonder of it all and harnessing creativity and inspiration.  This method also enhances concentration and focus. It's called mindfulness.

The Fact Witness - What a Relief

There appears to be two different ways that people daydream. Some people are unaware that they are daydreaming - that is their minds begin to wander and they get so caught up in the content that they lose themselves in it. Others are aware that they are daydreaming. While their minds wander, they are able to follow the wandering. Guess which group exhibits greater creativity?  Jonathan Schooler, a psychologist at the University of California, Santa Barbara, finds that those who maintain awareness of their flights of fancy are more likely to be creative.

Rumination is a type of mental wandering that often takes place when a person is feeling down or depressed.  A person plays over and over in their mind a series of events or judgments that sustain and even deepen their low mood.  Research in Mindfulness Based Cognitive Therapy has found that people who learn to become more aware of their ruminative mental activity can begin to extricate themselves from its grasp.  So too, just as obsessive thoughts about an uncertain future event can lead to anxiety, the overlay of awareness can help reduce anxious feelings.  

In these situations, where awareness appears to play an important role, we are talking here about a certain type of awareness - one that acts like a witness of mental and physical experience.  It sees and, if called to testify in a neural circuit court, can testify about what it witnessed.  But it does not judge the experiences.  It simply notes what arises and doesn't get involved. This is mindful awareness.

Since those of us in the legal field have a lot to learn from the past and are required to anticipate the future, it is easy to lose focus and turn important moments for learning (past) and planning (future) into episodes of regret and worry.  As is discussed above, whether you can catch the mind as it loses focus, and what you do when it does, makes all the difference. Will you daydream in a way that allows for creative solutions, or will you get lost in fantasy?  Will you catch the mind as it moves into agitated states and quell the distress, or will you get stuck in the muck?

Mindful Awareness

In the law, after a default is entered, the party bringing the action seeks a default judgment.  If once again there is no response, this time a default judgment is entered and the case is over.  When the brain enters default mode, the same thing can happen.  If a person is ruminating or worried about something, the energy caught in that agitated state of mind can be so intense that there is no response.  It's all one-sided, a series of judgments that are accepted as true by the neural circuit court.  In Jurisight, this is called a "default judgment."

Research has found that people who practice mindfulness are better able to sustain focus, reclaim focus when it is lost, and quell the distress that often accompanies the regret and worry of a distracted mind.  In the language of Jurisight, this is called "Relief from Judgment."  Research also finds that mindfulness strengthens the ability to maintain awareness of what is taking place moment by moment.  In this regard, it makes sense that one who has developed mindfulness skills would be less likely to get lost in fantasy while daydreaming and instead witness the experience, and inspire the mind. And because mindfulness practice involves learning to focus attention on an object, and to sustain awareness with that object even when the mind begins to wander, mindfulness exercises have been found to enhance concentration and cognitive performance.  

There are many wonderful approaches to practicing mindfulness.  At its core is breath awareness, the practice of paying attention to one's breathing and sustaining attention on the breath.  The following links offer you information from a variety of sources - books, articles, and audio meditations -- on ways to cultivate mindfulness.  The next time you find yourself lost in distraction or caught in worry, bring awareness to your breathing, and take a fresh look around you -- both on the inside and out.

1. 1. Mindfulness Instruction.  Instruction on basic breath awareness exercise from The Six-Minute Solution: A Mindfulness Primer for Lawyers. Click here.
   

2. 2.Mindfulness Recording. Five Minute Breathing Meditation by Diana Winston of UCLA’s Mindful Awareness Research Center.  Click here.
   

3.  Mindfulness Book.   Wherever You Go, There You Are: Mindfulness Meditation in Everyday Life , by Jon Kabat-Zinn.   Click here.

You may find interesting the following articles which address some of the information contained in this month’s Mindfulness Memo.

1. 1. Daydream Achiever by Jonah Leher: Boston Globe, August 31, 2008.  Click here.
   

2. 2. The Neuroscience of Mindfulness by David Rock: Psychology Today, October 11, 2009. Click here.
   

3. 3.The Brain’s Default Network, by Randy Buckner, et. al., Annals of the New York Academy of Sciences.  April 3, 2008.  Click here.
   

Mindfulness Memo Archives

Click here to visit the Mindfulness Memo archive, or one of the below Mindfulness Memos.

Mindfulness Liberty and Fireworks

Mindfulness and Negotiation

Mindfulness Professionalism and the Lawyer’s Brain

Motion to Bifurcate Pain and Suffering

Motion for An Extension of Thyme