University of St. Thomas Law Journal

Decisions, Decisions: How Mindfulness and Slow Lawyering Can Begin to Solve Our Most Exhausting Problems

Alena Stankaitis*

We are all familiar with the brain fog that sets in after lunch, sometimes earlier. This mental exhaustion seems unavoidable. What is it? How can we make it go away?

The effects of “decision fatigue” on medical professionals, such as surgeons and nurses, are especially well-studied.1 There is also a growing body of research concerning the impact that repeated decision-making has on judges and attorneys.2 This blog surveys the current literature documenting the impacts of decision fatigue in the legal field, and it proposes two solutions to this problem—mindfulness and slow lawyering.

I. What is Decision Fatigue?

Neuroscientists estimate that an able-bodied adult makes 35,000 decisions daily.3 Unlike physical fatigue, we are typically unaware of decision fatigue unless we know how to notice the signs.4 “[I]ndividuals experiencing decision fatigue demonstrate an impaired ability to make trade-offs, prefer a passive role in the decision-making process, and often make choices that seem impulsive or irrational.”5 Practically speaking, we start taking shortcuts instead of thinking through each decision.6 “Decision fatigue” is therefore defined as “a state of mental overload that can impede a person’s ability to continue making decisions due to an overload of possibilities and cognitive exhaustion.”7 As the day goes on, the quality of our decisions inevitably declines.

I encountered this concept in disability circles amid conversations about “spoon theory.” For those of us with chronic illnesses and/or disabilities,8 our daily capacity to complete executive functioning tasks is dictated by our available “spoons.” “[E]ach spoon represents a finite unit of energy. Healthy people may have an unlimited supply of spoons, but people with chronic illnesses have to ration them just to get through the day.”9 For example, on particularly busy days, I may only have one spoon left when I get home. I am forced to decide whether that spoon will be used to heat up leftovers for dinner or take a shower before crawling into bed. When folks with chronic illnesses and/or disabilities are faced with decision fatigue and dwindling spoons all at once, the mental energy it takes to make such a simple decision and initiate that task can feel insurmountable—sometimes using up one spoon itself.

  1. Lawyers & Decision Fatigue

Lawyers wear many hats, and “[d]ecision fatigue occurs when you are practicing a core function of lawyers—making choices as to what to say or do next—without sufficient breaks.”10 Lawyers are administrators; they manage dozens of clients, a calendar full of meetings and court deadlines, and the financial accounting of their law office.11 Lawyers are researchers and writers; they spend hours in front of a computer on Westlaw and Microsoft Word drafting pretrial motions, appellate briefs, and contracts. Lawyers are also counselors; they advise their clients, listening to their worries, anger, or joy.12 Decision fatigue “can undermine [a lawyer’s] informed decision-making because they may not have the mental resources to consider the options carefully. As a result, parties . . . may settle just to ‘get it over’ and later regret doing so.”13

  1. Judges & Decision Fatigue

Judges are decision makers and “the axle on which the wheels of justice turn.”14 For that reason, there is “[a] growing body of research support[ing] the conclusion that although judges are often excellent decision makers, they have vulnerabilities.”15 Starting in 2011, researchers from Ben Gurion University and Columbia Business School published one of the earliest studies on judicial decision fatigue.16 Their paper analyzed 1,112 parole rulings made by eight judges over ten months.17 The authors concluded that, “as judges advance through the sequence of cases[,] . . . they will be more likely to accept the default, status quo outcome: deny a prisoner’s request.”18 Generally, the more consecutive time spent in the courtroom, the more likely a judge “will be to render the least mentally taxing decision in a case.”19 Importantly, the effects of decision fatigue “remain unchanged immediately after a meal, despite judges having taken an extended break to eat and rest.”20

As lawyers juggle tasks and judges spend more consecutive time in the courtroom, decision fatigue sets in, and taking a break will not solve the problem. Further, the literature fails to mention the exacerbated impact on legal professionals with chronic illnesses and/or disabilities. This is where mindfulness and slow lawyering may begin to help.

II. Mindfulness

Building a mindfulness practice is the first step in combating the effects of decision fatigue on an individual level. Do not just take it from me—the American Bar Association’s National Task Force on Lawyer Well-Being recommends a mindfulness approach to effective lawyering.21

Mindfulness can best be summarized as “practicing non-judgmental, present-moment awareness.”22 This is a deceptively short phrase. For a mindfulness practice to be “non-judgmental,” it “means letting go of the automatic judgments that arise in your mind with every experience you have.”23 “Present-moment awareness” is “about being aware of your thoughts, feelings, and surroundings without getting lost in worries about the past or the future.”24 Take eating your favorite ice cream as an example:

You may be enjoying it, but are you truly aware of the experience? Are you fully present to all the different flavors and textures, or are you thinking about what happened earlier or what you need to do tomorrow? Being aware of the present moment means you’re fully tasting, experiencing, and enjoying that ice cream without your mind wandering to other things.25

But how can this exercise combat decision fatigue? You are paring down your sense-experiences to the present moment. In layman’s terms, you are not thinking about everything all at once. This slows down the process of the 35,000 daily decisions otherwise flying by unnoticed. Simply put, present-moment awareness reduces mental clutter.

The best effects can be achieved if you take time to meditate. The process starts with finding a quiet space to sit and breathe without distractions.26 The object of meditation is not focusing on having zero thoughts. Instead, try to passively observe your thoughts. Headspace, one resource I have found immensely helpful in my own practice, recommends the following exercise:

[T]hink of thoughts like traffic in the mind, always zipping by. Sometimes we see a flashy car and chase after it, kind of like when we get caught up in analyzing or judging a thought or when we get lost in a daydream. Other times, we see a roadblock ahead and try to resist it, like we do when we think or feel something uncomfortable. Meditation trains us to notice the traffic without chasing or fighting it – just to let the thought come. Then gently shift our focus away from it and back onto our breath – to let the thought go.27

This practice acknowledges that it is inevitable our minds are going to be racing. Did I hit “send” on the email I wrote to that senior partner? I need to remember to call and update my client before the end of the day. That associate shared a great idea I need to write in our brief. Meditation is about noticing these pressing issues, taking stock on how they may be impacting us mentally or causing tension somewhere in our bodies, and letting them pass. Neuroscientifically speaking, this practice is proven to improve attention and enhance emotional regulation—two functions that are eroded by decision fatigue.28

When there are times you cannot step away to a quiet space and meditate, mindfulness practices can be tailored to your current environment. During client meetings or court hearings, it may be beneficial to exercise mindful listening. “It begins with placing attention on what someone else is saying, including their non-verbal cues. At the same time, you remain aware of your own internal experience.”29 By focusing on what is immediately in front of you—who is speaking and your experience—overwhelming distractions will melt away. Generally speaking, less distracted decisions are better decisions, even if it is already that time of the day where decision fatigue hits and there is no time to recuperate.

III. Slow Lawyering

Even before tools like ChatGPT disrupted our daily lives, our brains were incapable of dealing with the abundance of information available at our fingertips.30 This ever-evolving, quickening reality is why slowness is so important. “The more law practitioners can avoid diverting precious energy to unnecessary but alluring endeavors . . . the more likely they are to devote it to the slow work of meaningfully engaging in practicing law.”31 But how do we slow down a legal field that has only been gaining speed?

The solutions suggested in this blog alone will not guarantee long-term success without fundamental reform within the legal field. Mindfulness is a Band-Aid slapped on top of a wound requiring stitches. Until we can increase the size of the judiciary,32 rework the billable hour,33 institutionalize working from home,34 or implement other solutions that will fundamentally slow the pace of legal work, mental overload is here to stay.

In the meantime, there are a few more individual acts of mindful rebellion we can work into our daily schedules. Susan Greene, Assistant Professor of Legal Writing at Brooklyn Law School, proposes four “slow lawyering” practices.35 First, we must resist the smartphone.36 Whenever possible, we need to make our smartphones and all of their enticing distractions less visible.37 Instead, she recommends transitioning back to tried-and-true organizational tools like wearing a watch and carrying a physical calendar.38 Second, reviewing legal documents should move from computer screens back to paper.39 Third, Greene encourages rituals:

[A] practitioner can check email once an hour and log onto social media once each morning. Or, perhaps each day can be divided into periods of information retrieval and information reintegration . . . . Whatever the ritual, the idea is the same: to set times that allow for the slow, deliberative work of lawyering and separate them from technology use.40

Fourth and finally, movement is key.41 Instead of spending the time we are confronted with writer’s block, anxiety, or any other variety of emotions, “[a] break engaged in physical activity, any physical activity, unburdens the mind while maintaining the slower pace that the law practitioner has set.”42 A break is also an optimal time to meditate—taking a moment to check in with the mind and body.

As a future member of the legal field, I believe we owe it to our colleagues to make the legal profession a fatigue-aware, slower experience for the sake of judges, lawyers, and all other professionals in the community. It takes deliberate effort to recognize and address each of our own mental needs, and it means holding space for others when they reach their limits.

* Alena Stankaitis, J.D. Candidate at the University of St. Thomas School of Law, Class of 2025. Publications Editor on the University of St. Thomas Law Journal. A huge thank you to m boulette—Partner and Chair of Taft Stettinius & Hollister LLP’s Domestic Relations practice group, 2024–25 President of the Minnesota State Bar Association, Adjunct Professor, and overall superhuman—for teaching Mindfulness in Legal Practice this past fall.

  1. See, e.g., Emil Persson, Kinga Barrafrem, Andreas Meunier & Gustav Tinghög, The Effect of Decision Fatigue on Surgeons’ Clinical Decision Making, 28 Wiley Health Econ. 1194 (2019); Julia L. Allan et al., Clinical Decisions and Time Since Rest Break: An Analysis of Decision Fatigue in Nurses, 38 Health Psych. 318 (2019). ↩︎
  2. See discussion infra Section I. An extended version of this blog would ideally explore how this topic impacts a wide variety of legal professionals, such as student certified attorneys, paralegals, administrative and judicial assistants, court reporters, and the numerous additional professionals that keep the legal field moving. Instead, this research performs a limited survey of judges and practicing attorneys. ↩︎
  3. Grant A. Pignatiello, Richard J. Martin & Ronald L. Hickman Jr., Decision Fatigue: A Conceptual Analysis, 25 J. Health Psych. 123, 123 (2018). ↩︎
  4. John Tierney, Do You Suffer From Decision Fatigue?, N.Y. Times (Aug. 17, 2011), https://www.nytimes.com/2011/08/21/magazine/do-you-suffer-from-decision-fatigue.html. ↩︎
  5. Pignatiello et al., supra note 3, at 123. ↩︎
  6. This paper would be remiss if it failed to acknowledge the opposition to decision fatigue. Opponents instead cite the concept of “ego depletion.” See, e.g., Nir Eyal, Have We Been Thinking About Willpower the Wrong Way for 30 Years?, Harvard Bus. Rev. (Nov. 23, 2016), https://hbr.org/2016/11/have-we-been-thinking-about-willpower-the-wrong-way-for-30-years; Daniel Engber, Everything Is Crumbling, Slate (Mar. 6, 2016, 8:02 PM), https://www.slate.com/
    articles/health_and_science/cover_story/2016/03/ego_depletion_an_influential_theory_in_psychology_may_have_just_been_debunked.html; M. S. Hagger et al., A Multilab Preregistered Replication of the Ego-Depletion Effect, 11 Pers. on Psych. Sci. 546 (2016). Researchers define “ego depletion” as the “state of reduced self-control capacity” after “engaging in tasks requiring self-control [that] would lead to depletion of the resource and reduced performance on subsequent self-control tasks.” Id. at 546. For the limited purposes of this blog, I defer to using the term “decision fatigue” to emphasize the similarities between the two theories rather than legitimize one over the other. ↩︎
  7. Jessica Maria Echterhoff, Aditya Melkote, Sujen Kancherla & Julian McAuley, Avoiding Decision Fatigue Potential with AI-Assisted Decision-Making, 2024 UMAP 1, 1 (emphasis added). ↩︎
  8. In an attempt to employ the most inclusive language possible, I use the phrase “persons with chronic illnesses and/or disabilities” to encompass anyone that resonates with one or both of those conditions. “Putting the person first, as in ‘people with disability,’ is called people-first language. It is commonly used to reduce the dehumanization of disability.” Labib Rahman, Disability Language Guide, Stan. Disability Initiative Bd., https://disability.stanford.edu/sites/g/files/sbiybj26391/files/media/file/disability-language-guide-stanford_1.pdf (last visited Dec. 12, 2024). When in doubt, however, “if someone is willing to disclose their disability, it is best to ask them how they want you to refer to (or not refer to) their disability.” Id. ↩︎
  9. Fortesa Latifi, Spoon Theory: What it is and How I Use it to Manage Chronic Illness, Wash. Post (Jan. 14, 2023, 6:00 AM EST), https://www.washingtonpost.com/wellness/2023/01/1
    4/spoon-theory-chronic-illness-spoonie/; see also Elena Gonzalez-Polledo & Jen Tarr, The Thing About Pain: The Remaking of Illness Narratives in Chronic Pain Expressions on Social Media, 18 New Media & Soc. 1455 (2016). ↩︎
  10. Robert Angelo Creo, Making Decisions: Decision Fatigue, Pa. Law., May–June 2023, at 52. There is also an unfortunately well-documented crisis in lawyer well-being. See, e.g., David Jaffe, Katherine M. Bender & Jerome M. Organ, “It Is Okay to Not Be Okay”: The 2021 Survey of Law Student Well-Being, 60 U. Louisville L. Rev. 441, 484 (2022) (“What is clear is that our law students need help. Perhaps starker than any other data point: nearly 70% of respondents reported needing help in the prior twelve months for emotional or mental health problems.”); Bree Buchanan & James C. Coyle, Introduction to The Path to Lawyer Well-Being: Practical Recommendations for Positive Change 1 (2017) (“To be a good lawyer, one has to be a healthy lawyer. Sadly, our profession is falling short when it comes to well-being.”). ↩︎
  11. There is also the immense pressure of the billable hour:
    Attorneys are required to bill anywhere from 1,700 to 2,300 hours per year . . . with a growing majority billing a minimum of 1,950 annual hours. . . . [N]ot every hour spent in the office is billable, this often translates into a standard 50–90 hour work week. . . . Moreover, this minimum requirement does not include other work-related time that is expended, including commuting to and from work, standard socializing with coworkers, or taking time out of the office for family emergencies.
    Ilona Salmons, Best Practices for Managing Burnout in Attorneys 52 (July 2017) (Ph.D. dissertation, Pepperdine University) (internal citations omitted). ↩︎
  12. Lawyers are also operating within the adversarial system when representing their clients. This system, “coupled with the additional occupational variable of the common expectation that lawyers should work long hours and the individual personality variable of perfectionism, can exacerbate the chronic stress that a lawyer is already experiencing.” Id. at 55. This environment, characterized by “high-demand and low-control[,] . . . is one that significantly increases the chances of burnout among employees.” Id. ↩︎
  13. John Lande, How Can Practitioners Help Clients Assess Their Interests and Risks in Litigation?, Indisputably (Oct. 25, 2018), http://indisputably.org/2018/10/how-can-practitioners-help-clients-assess-their-interests-and-risks-in-litigation/. ↩︎
  14. Jeffrey J. Rachlinski & Andrew J. Wistrich, Judging the Judiciary by the Numbers: Empirical Research on Judges, 13 Ann. Rev. L. & Soc. Sci. 203, 204 (2017). ↩︎
  15. Id. ↩︎
  16. Shai Danziger, Jonathan Levav & Liora Avnaim-Pesso, Extraneous Factors in Judicial Decisions, 108 PNAS 6889 (2011). ↩︎
  17. Id. at 6889. ↩︎
  18. Id. ↩︎
  19. Rahul Hemrajani & Tony Hobert, Jr., The Effects of Decision Fatigue on Judicial Behavior: A Study of Arkansas Traffic Court Outcomes, 2024 J. L. & Cts. 1, 2, 5. ↩︎
  20. Ravi Shroff & Konstantinos Vamvourellis, Pretrial Release Judgements and Decision Fatigue, 17 Judgment & Decision Making 1176, 1179 (2022). ↩︎
  21. The ABA writes:
    Mindfulness meditation is a practice that can enhance cognitive reframing (and thus resilience) by aiding our ability to monitor our thoughts and avoid becoming emotionally overwhelmed. . . . Research has found that mindfulness can reduce rumination, stress, depression, and anxiety. It also can enhance a host of competencies related to lawyer effectiveness, including increased focus and concentration, working memory, critical cognitive skills, reduced burnout, and ethical and rational decision-making.
    Nat’l Task Force on Law. Well-Being, The Path to Lawyer Well-Being: Practical Recommendations for Positive Change 52–53 (2017). ↩︎
  22. Christina Congleton, Britta K. Hölzel & Sara W. Lazar, Mindfulness Can Literally Change Your Brain, Harvard Bus. Rev. (Jan. 8, 2015), https://hbr.org/2015/01/mindfulness-can
    -literally-change-your-brain. ↩︎
  23. Patrick Buggy, Non-Judgment: What is it? And Why Does it Matter? (4 Benefits), Mindful Ambition, https://mindfulambition.net/non-judgment/ (last visited Nov. 7, 2024). ↩︎
  24. How to Develop Present Moment Awareness with Mindfulness, Calm Blog, https://www.calm.com/blog/present-moment-awareness (last visited Nov. 7, 2024). ↩︎
  25. Id. ↩︎
  26. This practice, however, may be uncomfortable for individuals with trauma. In that case, I would recommend a physical practice, such as walking meditation. See, e.g., Walking Meditation, Headspace (Apr. 14, 2022), https://www.headspace.com/meditation/walking-meditation.  ↩︎
  27. Meditation for Beginners, Headspace (Jan. 20, 2023), https://www.headspace.com/meditation/meditation-for-beginners. ↩︎
  28. Yi-Yuan Tang, Britta K. Hölzel & Michael I. Posner, The Neuroscience of Mindfulness Meditation, 16 Nature Revs. Neuroscience 213, 216–19 (2015). ↩︎
  29. Scott L. Rogers, The Mindful Law Student: A Mindfulness in Law Practice Guide 156 (2022). ↩︎
  30. Adam Gazzaley & Larry D. Rosen, The Distracted Mind: Ancient Brains in a High-Tech World 8–10 (2016). ↩︎
  31. Susan Greene, Slow Lawyering: How Law Practitioners Can Slow Down in a High-Speed World and Why It Matters, 43 L. & Psych. Rev. 1, 18 (2018). ↩︎
  32. See, e.g., The Need for Additional Judgeships: Litigants Suffer When Cases Linger, U.S. Cts. (Nov. 18, 2024), https://www.uscourts.gov/data-news/judiciary-news/2024/11/18/need-additional-judgeships-litigants-suffer-when-cases-linger (discussing why there is a greater need for federal judges); Amanda Hernández, Shortage of Prosecutors, Judges Leads to Widespread Court Backlogs, Stateline (Jan. 25, 2024, 5:00 AM) https://stateline.org/2024/01/25/shortage-of-prosecutors-judges-leads-to-widespread-court-backlogs/ (highlighting the imminent need for more judges at the state level). ↩︎
  33. See Salmons, supra note 11, at 52. ↩︎
  34. See generally Lynne N. Kennette & Phoebe S. Lin,  Healthier at Home, Ass’n for Psych. Sci. (June 28, 2021), https://www.psychologicalscience.org/observer/remote-benefits. ↩︎
  35. Greene, supra note 31 at 1, 18. ↩︎
  36. Greene, supra note 31 at 18–19. ↩︎
  37. Greene, supra note 31 at 18–19.  ↩︎
  38. Greene, supra note 31 at 19. ↩︎
  39. Greene, supra note 31 at 19–20. ↩︎
  40. Greene, supra note 31 at 20–21. ↩︎
  41. Greene, supra note 31 at 21–22. ↩︎
  42. Greene, supra note 31 at 22. ↩︎

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