Balance the Swing of Your Legal Thinking
Posted on November 18, 2012
Simplifying the vast, burgeoning literature of cognitive science risks violating the very lessons this promising field inspires: be skeptical of your rationality; be wary of your gut instincts; be mindful of your mind’s certainties, blinds spots, and biases.
Thinking is complicated, laborious mental work for most of us. Respecting that complexity without reducing it, cognitive science can offer a few emerging lessons to help our mental labors:
- Don’t just “blink.” Your gut instinct is not often your best guide to seemingly simple problems. Seemingly simple problems still require reasoning through. We’re just not that good at thinking, truth be told, even for what we assume are the smaller problems. In fact, more than 4-9 distinct variables of information can quickly overwhelm our brain’s built-in reasoning constraints. And even when dealing with smaller chunks of information, we should still rationally evaluate and “fact check” our gut instincts.
- Novel problems need reasoning too. But first ask how your past experience might help you solve the new problem. Let experience and analogy guide you, at least to the extent these can offer practical, rational solutions. If the problem is truly unprecedented, then intuition or emotion probably can’t get you to the correct solution. The only way to solve a unique problem may be a unique solution. As Einstein wisely remarked, you can’t often solve a problem from within that problem’s frame of reference.
- Embrace uncertainty—humility first, certainty last. Always entertain competing hypotheses. Always remind yourself of what you don’t know. Be especially wary of what you don’t know you don’t know, what Secretary of Defense Rumsfeld once called “unknown unknowns.”
- You know more than you know. Your brain is acquiring wisdom through experience, trial and error. Once you’ve become an expert (only after 7-10 years of practice) you can trust your intuitions in your domain of expertise.
- Above all, think about your thinking. There is no secret recipe for decision making. There should only be humble vigilance, our commitment to avoiding those avoidable errors in life.
These guides to better thinking come from the concluding pages of Jonah Lehrer’s “How We Decide,” one of the first popular non-fiction books to parse the cognitive and social science experiments from the last half of the twentieth century. Critics argue that Lehrer and similar journalists have over-simplified the science and, in some cases, misinterpreted the results. Those journalists are, say critics, guilty of the same cognitive crimes they attempt to elucidate.
Lehrer himself has come under fire recently for recycling his own writings and misquoting sources, among other journalistic breaches. We won’t adjudicate those charges here. But we can at least spot in the literature a growing consensus among the scientists themselves that the above advice demonstrably improves our thinking.
And the advice applies equally to us lawyers. We risk both complacency and hubris in our legal thinking. On the one hand, we often seek to solve legal problems based on what instantly “feels” right, and then we fit that feeling to the most convenient rules and procedures in the case. This is usually our intuitive or “blink” reaction to many, if not, most legal problems. In relying too heavily on our intuitive legal judgment, we often succumb to motivated reasoning that privileges our emotional, as opposed to our logical, minds. This, in turn, renders us more susceptible to many of the cognitive biases we’ve highlighted in this blog, e.g. self-serving, sunk-cost, and hindsight biases. Our snap judgments can lead us to error.
On the other hand, we also take great pains to construct rational, bullet-proof arguments, even those we build from disparate facts and ambiguous laws. In other words, the solutions we most often build in the legal system. Our inspired logic chopping, however, can isolate and abstract our self-selected evidence to the exclusion of other relevant information. We pick and choose. We are highly selective. Partisan. And when we select one thing, we necessarily leave something else out. This selectivity carries risks similar to those we encounter with gut reactions above – we select from unrecognized biases and implicit value judgments.
We thus swing between our cock-sure rationality and our snap intuition, with both ends of the spectrum governed in many cases by hidden, subconscious predispositions. To center this swinging pendulum of our legal thought and temper the influence of cognitive biases, we can regularly “think about our legal thinking,” reminding ourselves to carefully, slowly contemplate even the most obvious legal problems while simultaneously trusting our hard-won intuitions and expertise in certain legal matters. It is a question of balance.
Achieving balanced thought is perhaps our greatest challenge as lawyers. Balanced legal judgment is one of our defining virtues. This virtue is well served by regularly “thinking about our legal thinking.” Rationality and emotion might then swing less wildly in us lawyers. Of course, the mind’s pendulum will still swing. But at least we can swing mindfully along with it.