Monday, February 11, 2013

Deciding Whether the Best Lawyers Have the Most Excellent "Slow Brains" Takes Something Other than a Slow Brain

Posted by Jeff Lipshaw

Bill and I have been having this friendly debate for a number of years now.   I believe the insights of Tversky and Kahneman are fully deserving of every accolade they receive, but they don't answer all the questions.  Personally, I think describing a lawyer as a having an excellent Kahnemanian "Slow Brain" is like describing a baseball pitcher as having a 102 mph fastball - it's a necessary but not sufficient ingredient of excellence (you need control as well as velocity).  

ImagesAs I've argued at length, it's because pure analytical ability (the "slow brain" quality) fails to capture the subjective and bottomless experience of judgment - in short, as Kahneman acknowledges, sometimes your fast brain answer is the right one, so if you use your slow brain to decide whether the fast brain or slow brain is giving you the correct judgment, are you making a mistake?

"Metacognition" - thinking about your own process of thinking - is all the pedagogical rage right now.  To the extent it encourages what I call "epistemic humility," I'm all for it.  But it's no silver bullet.   To quote myself:

I have a reasoned skepticism about our ability to navigate through life on a wholly reasoned and rational basis, concluding instead that sometimes being wise means understanding we just have to conclude, to decide, to act, to pay our money and take our chances. I recognize fully the abstraction of much of what I have said here. But I have wanted to counter the underlying rational, objective, and scientific underpinnings of much of the professional mindset: we can figure it all out and control it if we just think hard enough. More practically, as some have suggested, there is a real question whether any of this state of mind can be taught in school. I think we can rigorously and ethically help young lawyers develop one- handedness, but that must be the subject of another article.

For more where that came from, see Dissecting the Two-Handed Lawyer:  Thinking Versus Action in Business Lawyering, coming soon to a prestigious law review near you.  (The conversation I describe at pp. 49-50 of the SSRN draft was with Bill!)  The abstract follows the break.

Business clients sometimes refer derogatorily to their “two-handed” lawyers, implicitly distinguishing between the thinking that leads up to a decision and the decision itself. A “two-handed lawyer” is one who can analyze a problem on one hand and on the other hand, but tosses the actual decision back to the client. The observation invokes something fundamental about objective information, subjective judgment making, and the commitment to action. “Thinking like a lawyer” is a prototype of the rationally analytical mindset residing at one end of the mental continuum, and the entrepreneur’s impatience with allocating the risk of failure is a prototype of the commitment to action residing at the opposite end. If leaping is the metaphor for the business decision, then the systematic and dispassionate “two-handed” assimilation of data through rational analysis – the lawyer’s stock in trade – plays a crucial role. The leaper uses that analysis to assess distances and capabilities. But the decision to leap is something quite different. The leaper’s subjective experience of the “aha” moment of a business decision (or any decision, even when made by lawyers) defies scientific reduction. It is really only accessible through the subjective lived experience of the decision-maker. Deciding is more like action than thought.
In his iconic The Reflective Practitioner, the late Donald Schön criticized a mode of thinking he called Technical Rationality. Prototypical legal analysis is an exemplar of Schön’s Technical Rationality, applied methodically and systematically as a means of helping others to understand their circumstances and to optimize their positions in light of risk and uncertainty. Prototypical entrepreneurs and investors, however, are obliged to decide and to act. The mental process that leads to action is deeply subjective, personal, intuitive, and often ad hoc. Understanding that in difficult cases it is possible to offer as many reasons for as against the proposed action, the most effective business lawyers do not merely analyze and offer “two-handed” alternatives. Instead, they put themselves in the position of the decider and understand what it means to take the leap of a business decision.
This article is a reflection on the reasons for lawyerly “two-handedness” and some preliminary thoughts on overcoming it. The affective toolkit for getting beyond rational analysis to action includes attributes such as epistemic humility, epistemic courage, self-awareness, and the willingness to accept responsibility for the consequences of one’s decisions.

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It's funny that you write this. When I watch the video Bill posted earlier, I recalled the old days, when criminal defense lawyers were categorized as "law men" or "trial men," the former doing motions and briefs, while the latter handled trials, shooting from the hip on objections, arguments and examinations.

There is a place for both fast and slow brains, and for those capable of shifting between the two. The most brilliant slow-brain lawyer is worthless if he doesn't make a timely objection to a question at trial. There's no going back. Or argue for a mistrial, or a trial order of dismissal, or any number of others legal arguments that are necessarily made off the cuff in the fast-moving world of criminal trial practice. It's a use-it-or-lose-it situation.

Obviously, that's not the case when preparing a brief on appeal, where thoughtfulness and deliberation are far more important than the ability to pop out a viable response on a moment's notice.

Posted by: shg | Feb 11, 2013 9:13:35 AM

Scott, that's an interesting insight, and one that had not occurred to me since it's a long time since I had to jump up in court and make an objection. But you are absolutely right.

In fairness, Kahneman explains the process of learned intuition among professionals as being gained over long repetitions and experience. You know when to object or when to dive in on cross-examination (in contravention of the "don't ask a question you don't know the answer to" rule) because of repeated experiences that teach you what signals to obey. I don't have any basis for saying he's wrong about that.

My more general point is that ALL decisions have an aspect of "leaping" in which you stop thinking and start acting, and the process at the core of that is not System 2 thinking, whatever else it might be!

Posted by: Jeff Lipshaw | Feb 11, 2013 9:52:55 AM

To Scott and Jeff,

Yes, experts (and you both are that) develop instincts based on pattern recognition that is only possible through immersion. Where I might argue with Jeff a bit is that I think "reflective practice", which taps into the slow brain to review all that has gone before, can enable the lawyer to become better faster. The slow brain reviews what to do and when to do it. The result is an practitioner who "looks" like a nature. But in reality, it is thousand of hours of focused effort (what is called "deliberation practice") to get there.

BTW, I am sure that Scott Greenfield presents as a brilliant fast thinker. Scott, did you come out of the box that way, or was it years of work in the trenches to get there? I am a data guy, and I look for anecdotes, supporting for disconfirming. Looking to help out the next generation of lawyers.

Best regards, Bill H.

Posted by: William Henderson | Feb 11, 2013 10:28:50 AM

Heh. I came out of the box that way (though I wouldn't call it "brilliant" at all). Then I got smacked hard a few times, and learned better. And I just kept coming back out of the box for more.

What was learned, and needed to be learned with painful experience, was how to make my case smoothly, to persuade rather than be right. It's a hard lesson that successful representation has less to do with right and wrong than the finesse needed to persuade another person to see it your way, and my smart-ass youthful self was clueless about this, but very full of how smart I was.

I doubt that helps much, but back then it was never-ending stream of lessons learned. Still is.

Posted by: shg | Feb 11, 2013 2:58:31 PM

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