In Search of Flow
I want to share with you my New Year's resolution: seek and experience "flow". What is flow, and what does it have to do with appellate practice? At the risk of oversimplification, flow is a psychological term used to describe a positive state of consciousness a person experiences when she is so engaged in a challenging activity that all sense of time is lost. Former University of Chicago psychology professor Mihaly Csikszentmihalyi coined the term after spending years studying how people achieve true states of happiness. I commend to you his book, "Flow: The Psychology of Optimal Experience." He describes optimal experience—flow—this way:
"We have all experienced times when, instead of being buffeted by anonymous forces, we do feel in control of our actions, masters of our own fate. On the rare occasions that it happens, we feel a sense of exhilaration, a deep sense of enjoyment that is long cherished and that becomes a landmark in memory for what life should be like. This is what we mean by optimal experience."
That's fine, you say, but what does it have to do with appellate practice? Although I have no evidence to back this up, I strongly suspect that appellate practitioners have a high flow "quotient." When I focus intensely on drafting an appellate brief, often for hours at a time, I experience flow. By contrast, I rarely, if ever, experience flow when I am fighting over discovery requests, assembling a document production, drafting client letters, or doing a myriad other things one must do to get a case ready for trial. (Actually trying a case, particularly to a jury, is a different story.) I doubt I am alone among appellate practitioners in experiencing this mental state.
I also suspect that one of the reasons appellate practitioners probably have a high flow quotient is because the process of drafting an appellate brief often occurs over a period of several uninterrupted hours. This is atypical for a "billable hours" profession like ours. Having to keep track of one's professional life in six-minute increments is perhaps the worst part of being a lawyer in private practice. The burden of keeping track of time in such increments, however, is greatly reduced when one can spend a morning or, better yet, an entire day devoted to a single project. Again, although I have no evidence, I suspect this fact contributes greatly to the high flow quotient among appellate practitioners.
The converse is true of trial-level litigation. The pervasive unhappiness of so many lawyers is, in my view, an indication of their inability to achieve flow in their professional lives. The billable hours nature of legal practice contributes enormously to that unfortunate situation. Professor M. Cathleen Kaveny, of Notre Dame Law School, has written about the adverse effect that our billable hours culture has on our lives. In a profession that requires individuals to track their time so meticulously, it is not difficult to understand why flow—which manifests itself in a loss of the sense of time—is so hard to achieve.
Professor Kaveny is not optimistic about what she calls "supplanting the hegemony of the billable hour". But if she had read Professor Csikszentmihalyi's book, she might have had a more positive outlook. He teaches that flow is not something that just happens. Rather, it is something each of us can prepare for, cultivate, and defend. There must be ways to structure our daily lives so that our billable hours culture does not stand as an insurmountable obstacle to achieving flow. My goal this year is to search for those ways in my non-appellate practice. I urge you to read Professor Csikszentmihalyi's book and join me in that quest.