Monday, October 27, 2014
In the second part of her book, Marybeth Herald discusses the decision-making process and the brain’s flaws that affect that process, based on recent discoveries by cognitive scientists. She points out that "[h]uman beings . . . are not always rational decision-makers." Because part of a lawyer’s job is to persuade judges, juries, and others, law students need to learn about the brain’s built in biases, including their own. She writes, "The ability to understand the intricacies of human decision-making is an essential, but largely unexamined, skill required of the successful lawyer."
Because the brain generally works fast, it can miss important details and the nuances of an idea. In other words, the brain filters. This is very important to lawyers since cases are won or lost on the details. Herald advises,"To avoid missing the details, you have to be willing to take the time to read carefully, examine assumptions, and contrast any dissenting opinions."
Another problem with our brains is that humans rely too much on gut reactions. Herald notes, "Gut reactions may be based on stereotypes, cognitive biases (as described below), or incomplete information that can lead you too the wrong conclusion in law school and legal practice." She continues, "Although most students have gut reactions to cases involving the death penalty, abortion, and flag burning, when forced to articulate the reasoning behind the stance, simple inconsistencies or gapping holes in reasoning may be exposed because many relevant factors have not been considered." Herald thinks that "a more skeptical attitude can help you uncover hidden and perhaps incorrect assumptions across a variety of issues."
Herald then discusses cognitive biases that can lead one’s thinking astray, including 1) the framing bias, 2) the egocentric bias, 3) the confirmation bias, selective perception, and rationalization, and 4) the availability bias. Herald asserts that "[u]nderstanding our thought processes is critical to success in both law school and practice in order to avoid falling prey to erroneous assumptions that could lead you and your clients astray within the legal system."
How a problem is framed affects our perception of that problem. Herald defines frames as "mental models that provide a starting point for our brains to assess an abstract problem." She adds, "Framing is important for law students to understand because lawyers are in the business of shaping preferences of clients, opposing counsel, legislatures, juries, and judges." Understanding the framing bias helps one overcome its effects. Moreover, understanding framing helps a lawyer be persuasive in his or her own arguments. Herald writes, "Both sides may work with the same basic facts and law, but will use different angles of reference to shape preferences. When seeking to persuade, you know what answer you want, and now you need to work backward to the necessary question."
With the egocentric bias, an individual believes that he or she is "less likely to be biased than others are." Herald suggests that "[t]o avoid being blindsided by the bias, successful attorneys must be aware of not only their own bias, but everyone else’s egocentric bias." It is especially important to manage one’s clients’ biases.
A confirmation bias is "the tendency to seek out evidence that confirms our pre-existing beliefs." While the confirmation bias keeps us happy, an attorney must search for contrary evidence in order to make accurate decisions. As Herald points out, "[t]he inability to see the other side (or sides) of the story could be a big problem in both law school . . . and law practice. . ."
Finally, the availability bias occurs when individuals make decisions based on information that is the most psychologically available to recall. It "leads us to estimate the frequency or probability of an event based on how easy or difficult it is to imagine the event occurring." Herald warns, "With knowledge of the availability bias, we should be cautious of making decisions that draw on anecdotal experience versus reliable and valid studies lacking these stories." Of course, judges and jurors also frequently suffer from the availability bias. "Awareness of the availability bias allows a lawyer to more effectively tailor arguments on the behalf of clients."
Like the first part of the book, the second part on decision-making clearly presents difficult subject matter for law students. While a great deal has been published on this subject, Herald’s book is the first to comprehensibly address this material to law students and show how these insights of brain science apply to learning and practicing the law. Considering that lawyers must deal with decision-making every day, law students need to learn how the mind makes decisions and the flaws in that process.
Herald best summarizes why her book is important:
"[I]t is critical to get your brain on board for the project. If you do not have a grasp of your brain’s operating systems, you lose control of the journey. Be the pilot, not the passenger as you navigate law school."