Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm: 

55561488_sIn the law, the ability to mentally focus is prized. We expect it of our partners and advocates, look for it in selecting our teams, and encourage our jurors to practice it. Following the story, understanding the details, comprehending the legal standards, all of that can require mental concentration. At the same time, part of law and legal persuasion requires a creative spark. Slogging through a deposition or sifting through the case law might be just a matter of putting in the time, but ginning up a good trial theme, creating a good metaphor, or trying to craft an answer to a strategic problem that has been eluding you up to now, that is creative work. And one thing we know about creative work is that sometimes you cannot just will yourself to an answer. Authors call it “writers block,” and anyone else who works with words for a living — humble bloggers for example — can tell you that you can’t just force an answer in a set amount of time. 

And that points out where a lack of focus might be just what you need. Recent research is contributing to the view that unfocused states — sometimes called “day dreaming” or “mind wandering,” isn’t wasted time. Instead, it is a precious opportunity for your brain to break out of the systems, patterns, and routines that it applies when it is working more conventionally. That loss of focus, or perhaps softer focus, can give rise to the kind of unexpected ideas that just might be a breakthrough. But not all mind wandering is of equal value. Instead, the act of intentionally wandering, though it might sound like a contradiction, tends to be more creative. Recent research (Golchert et al., 2017) suggests that something different is going on in the cranium of those who decide that they’re just going to let their brains ruminate in an unstructured way on an idea. Specifically, people who intentionally engage in mind wandering have a thicker cortex in a prefrontal area of the brain, but for those who report spontaneous or uncontrolled mind wandering, that same area is thinner. “Mind wandering is not always a failure of self-control that is inevitably linked to mistakes. “The key is whether the mind wandering is intentional or not,” the study’s first author, Johannes Golchert, notes, “Mind wandering should not just be considered as something disturbing. If you’re able to control it to some extent, that is to say, suppress it when necessary and to let it run free when possible, then you can make the most of it.” In this post, I will share a bit of my experience, as someone who works on the creative end of legal persuasion, on some of the ways to make the most of mind wandering. 

Give Yourself Pure Thinking Time

It has occurred to me lately that for much of my waking life, I’m a little too occupied. By that I mean that I’m either having conversations with colleagues or family, or I’m reading something. The phones, iPads, and computers are ever-present, even at breakfast, I’m likely to be eating my toast while reading the news, instead of just eating my toast. Living on the billable-hour clock tempts you into thinking that time is literally money, but when it comes to giving your mind the relaxation that promotes more creative thinking, there is something to be said for that old turn of phrase, “Don’t just do something, stand there.” 

Take Advantage of Moments When You’re Not Quite Fully Focused

For me, there is a golden span of time between the moment I wake up and the moment I decide to get out of bed. In that time, and it may be only a few minutes or so, my brain is engaged but not focused or organized. I’ve found that if I give myself a soft suggestion to think about this or that creative problem — a trial theme or the focus of a blog post, for example — then I’ll often have that eureka moment then and there. As long as I remember to write it down once I am focused, then I’ve gotten the hardest part of the job done without a lot of conscious effort. I’ve tried the same thing before a bicycle ride and that also works. 

Try Free Writing or Sketching

Here is one other technique I have tried. Often the task of trying to come up with a good theme for trial can be particularly vexing, and I’ll go for days without coming up with a good idea. In those situations, what I’ll often do is pull out a blank piece of paper and just start writing random words or phrases that come to mind. Sometimes I’ll start linking ideas with boxes and arrows. Sometimes I’ll divide the page into two columns and put all the “bad” words on one side and the “good” words on the other. And sometimes I’ll go through several such pieces of paper. But with luck, an idea will start to take shape and a sentence will pop out that ends up being the right theme for the trial. 

There is an excellent old quotation that comes from J.R.R. Tolkien’s The Lord of the Rings, and it applies to brains as well as to people: “Not all those who wander are lost.” 


Other Posts on Creativity: 


Golchert, J., Smallwood, J., Jefferies, E., Seli, P., Huntenburg, J. M., Liem, F., … & Margulies, D. S. (2017). Individual variation in intentionality in the mind-wandering state is reflected in the integration of the default-mode, fronto-parietal, and limbic networks. NeuroImage, 146, 226-235.

Image credit: (Ekaterina Gerasimova) used under license

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