How we lawyers think (or not)
Posted on February 1, 2012
The beginning of the 21st century brings new understanding of our brains, decision-making, and behavior. We are endowed by evolution with certain mental shortcuts or “heuristics” that we draw on every day for hundreds of decisions. Life demands these mental devices; they save time; they help us. But they can also trap and mislead us. Such automatic habits of mind can lead to all sorts of poor decisions, behaviors and beliefs.
How does this happen? Simply put, cognitive science has revealed that our brains are secret belief makers. Our brains create many, if not most, beliefs largely outside our conscious awareness. We then rationalize after-the-fact to convince ourselves that logic, reason-based evidence, and deliberation formed those beliefs. Not so. The brain is a team of rivals where hidden, competing cognitive and neural operations influence us without our knowledge. Our brains often make up our minds before we’re aware of it. Only after our brains have generated beliefs do we use reason to justify or explain those beliefs.
Legal thinking largely ignores this emerging reality. The law enshrines reason. To “think like a lawyer” is to presuppose a rational model of mind and meaning that is at odds with much of what cognitive science teaches us about human nature. Lawyers routinely model their decisions on reason, claiming that rational methods of analysis, explanation and justification determine their beliefs and positions – and, for that matter, the basis for law.
This is perfectly fine, as far as it goes. It just may not go as far as us lawyers have grown accustomed to believing. To cut reason back down to size, we need to integrate robust findings in cognitive science with the ways we “think” in law. This integration comes first by understanding how our brains work and then by applying that newfound understanding to both the institutional structures and the practical dynamics of legal practice. This blog focuses on both but emphasizes the latter, the practical and real world consequences of applying cognitive research and neuroscience to the ways we live our lives as lawyers, not to mention the ways we live in general.
I try here to reveal the many cognitive biases that operate beneath the level of conscious attention. Such mental short cuts lead us to legal decisions, beliefs and behaviors that are often counter-productive and even destructive to our aims as lawyers. Many of these same underlying or “incognito” brain processes also lead to unhappiness and lack of fulfillment when not fully understood and integrated into more holistic, better functioning legal thought. Among other things, this might include a better appreciation of the emotional content of our decisions, the efficacy of storytelling to comprehend law, and the power of self-awareness when it comes to our own thinking. In these and other ways, I hope this blog contributes to our understanding and wellbeing as lawyers.