Mindfulness and Judging

Judge Jeremy D. Fogel

Director, Federal Judicial Center

Federal Judicial Center

2016

This Federal Judicial Center publication was undertaken in furtherance of the 

Center’s statutory mission to develop educational materials for the judicial 

branch. While the Center regards the content as responsible and valuable, this 

publication does not reflect policy or recommendations of the Board of the Federal Judicial Center.
first printing
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Mindfulness and Judging

J

udges, as our title implies, make judgments. Sometimes 

the process of making a judgment is straightforward, as 

when a clearly written statute plainly applies to undisputed facts. But more often, the meaning or applicability of 

a statute requires interpretation, or factual disputes can be 

resolved only by determining the believability of human witnesses or by weighing conflicting circumstantial evidence. 

If applying the law to the facts also involves the exercise 

of discretion, whether in resolving issues in a civil action or 

imposing sentence in a criminal case, the process of making a 

judgment may become complex and multidimensional. Most 

cases involve real people with important, often very personal interests at stake. A judge’s decisions frequently are made 

in and affect an atmosphere infused with passions that can 

confound the detached rationality with which decisions—at 

least in theory—are supposed to be made.

As professional decision makers, judges typically become 

skilled at thinking reflectively and articulating reasons for 

their decisions. Most judges try to recognize and account 

for their reactions to the cases they hear and to avoid ruling 

impulsively. Judges also strive to treat people fairly. Yet despite these efforts, almost every experienced judge can think 

of cases in which a judgment missed the mark, in which the 

emotional impact of the situation made thoughtful reflection difficult or impossible, or in which there was lingering 

doubt about whether justice truly was done.

Judicial educators have recognized this reality for many 

years. Many have developed courses intended to help judges 

hone their decision-making skills and manage occupational 

stress. Some also have designed courses that explore unconscious psychological and cultural factors that can influence 

fact finding and decision making. More recently, there has 

been interest in understanding the extent to which empa-
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thy—one’s ability to understand a situation from another’s 

perspective—affects how judges judge and how litigants experience the legal process.

Understanding Mindfulness

Another construct that is only beginning to be explored in 

connection with judging is mindfulness. Although it has 

been most deeply understood and articulated in practices 

such as meditation and yoga, mindfulness actually is a remarkably simple and universal concept. Its value has attracted increasing attention in business, education, medicine, 

and, in the legal context, mediation. In essence, it involves 

slowing down one’s mental processes enough to allow one 

to notice as much as possible about a given moment or situation, and then to act thoughtfully based on what one has 

noticed. It sometimes is described as approaching each moment with a “beginner’s mind” or “thinking about thinking 

while thinking.” While much of the discussion of mindfulness in relation to judges so far has focused on health and 

wellness, mindfulness also has obvious implications for the 

actual work that judges do. The following examples may be 

helpful. 

A Thoughtful Approach to Repetitive Tasks

Many trial-level judges preside over busy criminal calendars 

in the course of which they take multiple guilty pleas. Because appellate courts have provided detailed guidance with 

respect to the contents of a plea colloquy, and because many 

criminal cases have similar fact patterns, it is easy for the process of taking a plea to become routine, especially over time. 

While few judges knowingly “mail the process in,” it is not 
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Mindfulness and Judging

uncommon for such repetitive tasks to receive less-focused 

attention than other judicial work, particularly when a judge 

is operating in a chronically stressful environment. 

Mindfully taking a plea involves approaching each plea 

as a new and unique situation. The judge notices consciously 

things that otherwise might tend to be noticed only in passing, if at all: the defendant’s tone of voice and body language, 

the way the defendant and counsel appear to be communicating (or not communicating) with each other, the defendant’s 

physical appearance, whether friends or family members of 

the defendant (or victims) appear to be in the courtroom, 

and so on. None of these things necessarily changes the outcome of the process, yet taken as a whole they can help the 

judge learn more about the defendant and assess more fully whether the defendant is entering a knowing and voluntary plea. And perhaps just as importantly, the attentiveness 

shown by the judge is communicated to the defendant and 

everyone else who is present.

A Way of Limiting Unconscious Assumptions

A core competency of trial court judges is assessing credibility. Judges decide regularly whom to believe and how much 

to believe them, not only in evaluating witnesses who are 

testifying under oath but also in dealing with lawyers and 

parties in the course of managing cases. Both consciously 

and unconsciously, judges draw upon their professional and 

personal life experience and respond to cues that they believe 

have been reliable in the past. And again, particularly under 

stressful circumstances, the process of doing this can become 

somewhat automatic.

As our society has become increasingly diverse, there are 

more cases in which a person’s behavior may have a differ-
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Mindfulness and Judging

ent valence when viewed in cultural context. For instance, 

a judge reflexively may view a witness’s lack of eye contact 

when testifying as an indication that the witness is not telling 

the truth. Yet in some cultures, making direct eye contact in 

certain settings is seen as disrespectful. Creating additional 

capacity for reflection can allow the judge to notice his or her 

reflexive response and to consider what significance, if any, to 

attach to the witness’s manner of testifying. The same is true 

with respect to a judge’s perception of any number of other 

behavioral differences.

Mindfulness and Judicial Demeanor

At least from the perspective of those with whom he or she 

interacts, perhaps the most important attributes of a judge 

are demeanor and temperament. While lawyers and parties 

undoubtedly hope that a judge will rule in their favor, often what matters most to them is the way they are treated: 

whether they feel listened to, heard, understood, and respected. While judges have a wide range of personalities and dispositions, all judges at one time or another experience states 

of mind, such as anger, frustration, distraction, or fatigue, 

that make it difficult or impossible for them to live up to 

these aspirations.

Noticing as fully as possible what is occurring in the moment makes a judge more aware of his or her own physical 

and mental state. A judge with such awareness is more conscious of his or her emotional reactions to a lawyer, litigant 

or situation, and is able to choose an appropriate response 

rather than ignoring the reactions or losing control. Often 

the optimal response will be to set one’s feelings aside, but 

sometimes an intentional, considered expression of emotion 

may be exactly what is needed to show that a judge is engaged and respectful. In either case, it is more likely that the 
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judge’s demeanor will reflect the seriousness and thoughtfulness that our society hopes for in its judiciary.

The Value of Reflective Thinking

In his best-selling book, Thinking, Fast and Slow, the Nobel 

laureate Daniel Kahneman makes a useful distinction between intuition, in which one reacts to stimuli immediately 

and instinctively, and reflection, in which one thinks consciously about what one is experiencing. Kahneman observes 

that intuitive (“system 1”) thinking is particularly active when 

one is doing routine tasks or when reflection is inhibited by 

stress. While intuitive thinking can be an efficient and even 

a necessary response to a given situation, its accuracy can be 

limited by one’s life experience and unchecked assumptions. 

Kahneman suggests that reflective (“system 2”) thinking allows for a more careful assessment of the circumstances, including the ability to notice and when appropriate question 

one’s intuitive responses. One is able to be more intentional 

in the moment as well as after the fact.

Although “system 2” would appear to be normative for 

judges in our professional role, the demands of our job can 

cause “system 1” to operate more frequently than we might 

want. One way of understanding mindfulness is as a means 

of strengthening our ability to be in “system 2” by heightening our self-awareness and building our capacity to be reflective. Mindfulness can improve judicial functioning not only 

by mitigating the unbidden intrusion of “system 1” thinking 

but also by increasing the richness of “system 2” thinking. 

While slowing down one’s thought processes may result in a 

given task taking somewhat longer to complete, Kahneman 

and others point out that the additional time involved typically is relatively minimal. And because reflective thinking 

can be expected to reduce the “unforced errors” that often 
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are present in “system 1,” mindfulness actually can improve 

one’s net efficiency.

The Personal Benefits of Mindfulness

As the current interest in mindfulness in the context of health 

and wellness suggests, the benefits of mindfulness are not 

limited to more nuanced decision making and better emotional regulation. One of the consequences of chronic stress 

is that its symptoms can become one’s “new normal.” One’s 

mind and body literally can forget how it feels to relax, to 

breathe deeply, and to appreciate being in the present, which 

in turn can have significant negative consequences for one’s 

health. Mindfulness is a powerful way of counteracting these 

effects. It allows one to notice what is happening and think 

about and take remedial measures. 

Fortunately, cultivating and practicing mindfulness is a 

natural and accessible process. Perhaps because of its popular 

association with meditation, yoga, and other traditional ways 

of developing and sustaining it, some may think of mindfulness as an element of a particular cultural style or worldview. But looking at mindfulness in this way misapprehends 

its nature. Its purpose is not to tell one what to think or do 

but rather to help one think and act as one chooses with the 

benefit of deeper reflection and more fully conscious intent. 

For judges, whose judgments can have profound effects on 

others, it can be both an enormously effective tool and a key 

to a more satisfying professional life.

 
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Judicial Resources on Mindfulness

If you would like to learn more about mindfulness, here are 

some additional resources. These materials describe simple 

steps for developing mindfulness in daily life and provide additional examples of ways in which mindfulness can improve 

both one’s health and one’s professional effectiveness.

Getting Started

Jon Kabat-Zinn, Mindfulness—An Introduction (YouTube)

Jon Kabat-Zinn, The 9 Attitudes of Mindfulness (YouTube)

J. Patton Hyman, The Mindful Lawyer: Mindfulness Meditation and 

Law Practice, Vt. B.J., Summer 2007, at 40

Scott Rogers, Stop, Look, and Listen: Regain your Focus Through 

Mindfulness, Young Lawyer, vol. 15, no. 4, at 3 (2011)

Timothy Tosta, Editorial, The Mindful Lawyer: Not Your Usual Law 

Conference, L.A. Daily J., Dec. 3, 2010, at 7

Ellen Waldman, Mindfulness, Emotions, and Ethics: The Right 

Stuff?, Nev. L.J., vol. 10, issue 2, art. 10 (2010)

Robert Zeglovitch, The Mindful Lawyer, 70 Tex. B.J. 234 (2007)

J. Kabat-Zinn, Mindfulness for Beginners (2012)

Books and Articles

Pamela Casey, Minding the Court: Enhancing the Decision-Making Process: A White Paper of the American Judges Association 

Making Better Judges (State Justice Inst. and Nat’l Center for State 

Cts. 2012)

Pamela Casey, Kevin Burke & Steve Leben, Minding the Court: Enhancing the Decision-Making Process, Int’l J. for Ct. Admin., Feb. 

2013
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Mindfulness and Judging

Alan S. Gold, Mindfulness—A Challenge for Our Times (Fed. Bar 

Assoc. 2012)

J. Kabat-Zinn, Wherever You Go, There You Are: Mindfulness in 

Everyday Life (1994)

Terry A. Maroney, Emotional Regulation and Judicial Behavior, 99 

Cal. L. Rev. 1485 (2010)

Susan R. Miles, What is Mindfulness Based Stress Reduction and 

Why Should I Care? (Minn. Bar Assoc., Aug. 2015)

Tess M.S. Neal & Eve M. Brank, Could Mindfulness Improve Judicial 

Decision Making? (abstract), Monitor on Psychology, 2014, vol. 45, 

no. 3

Gregory C. O’Brien, Jr., Confessions of an Angry Judge, Judicature, 

vol. 87, no. 5, March–Apr. 2004

Evan R. Seamone, Judicial Mindfulness, 70 U. Cin. L. Rev. 1023 

(2002)

Video

Terry A. Maroney, Are Angry Judges Bad Judges? (YouTube)

Websites

Headspace (online app), https://www.headspace.com

The Mindful Judge: Non-Judgmental Awareness in Action, The 

Institute for Mindfulness Studies (website presents programs and 

resources by judges for judges), http://www.themindfuljudge.com

Mindfulness: Legal Education and Practice, Jon Cavicchi, University of New Hampshire Law Library, http://law.unh.libguides.

com/content.php?pid=632009