Attorneys are hired for a multitude of reasons, but if network TV has taught us anything, it’s that great lawyers have great instincts. Of course, TV also taught us that cases always go to trial (really quickly) and always end very dramatically. Lawyers sell their knowledge and their ability to access and produce more knowledge. Thus, the field of law is very susceptible to knowledge-related cognitive glitches. To compound this vulnerability, some attorneys (not naming names) have SLIGHT difficulty considering alternative perspectives. We are what we remember. In the year Y2K (that’s the year 2000 for younger millennials), Malcolm Gladwell published a groundbreaking book called The Tipping Point which explored how ideas can spread like epidemics. Its popularity was massive and two brothers (Chip and Dan Heath) picked up the ball and explored one aspect of Gladwell’s work: the concept of stickiness. In 2006, they published an amazing book called Made to Stick that tried to pin down exactly what makes ideas sticky. In that book, the Heath brothers put a twist on a cognitive bias called the Curse of Knowledge. This is a concept that dates back to economic research in the 1970’s. Specifically, the Heaths wrote: “The Curse of Knowledge says that when we are given knowledge, IT IS IMPOSSIBLE to imagine what it’s like to LACK that knowledge.” I think of it like this: We forget things all the time. However, we can’t decide to un-know something. We are what we unconsciously choose to remember. Our brains are unbelievably complex computers, but they are not perfect. They tend to overvalue memories that have emotional significance (and then assume these are predictive examples). This is great for experiments like putting your hand on a hot stove, but not so good for looser correlations like using a particular legal strategy that worked on a big case one time. (Remember, that's a sample size of one!) Further, the Availability Heuristic suggests that what comes to mind quickly is deemed more significant to us. Thus, our analysis of things is often dominated by our recent experiences (especially the really good and really bad ones). This is not a very methodical (or effective) way to make predictive choices. Worse still, various smart people will have very different recent life experiences and often come to very dissimilar assessments of the same situation. When analysis is driven by the Curse of Knowledge, it’s tough to find consistency. A guide on how to protect WWII bomber planes. Abraham Wald was a brilliant mathematician from the early 20th century. At the age of 36, he found himself in unfortunate circumstances: 1) Hungarian; 2) Jewish; and 3) Living in 1938 Austria. Not surprisingly, Mr. Wald fled to the U.S. and began working for the “Manhattan Project for Mathematicians” called the US Statistical Research Group or SRG. The SRG famously utilized Mathematics to try and solve military issues… like how to protect U.S. bomber planes. The problem was that extra armor on these giant planes would burn more fuel, reduce speed and hurt maneuverability. So, the US Navy had to be judicious in adding thick protection. In a scientific effort to help, they catalogued the bullet holes on planes and used this as a guide for where to reinforce the aircraft. It was obvious, add armor where the planes are being shot. Easy peazy. Fortunately, Abraham Wald completely disagreed with the military’s armor strategy. He analyzed the patterns and said they should PUT THE ARMOR WHERE THE BULLET HOLES AREN’T. Huh? Mr. Wald realized that these catalogued planes were aircraft that survived. This suggested that taking fire in any of these spots would NOT bring a plane down. However, he noticed that no plane had returned with bullet holes in the engines. Clearly, this is where the armor would be most valuable. Embrace Challenges to your Brain. Mr. Wald approached the problem with a completely different Curse of Knowledge from his engineer and pilot counterparts. They had a very “plug the leak” form of processing. He was more data-driven towards cause and effect. Both were valuable insights, but Wald's solution was better. Too often, we immediately reject alternative perspectives because "they don't know as much as we do." In reality, that lack of your knowledge may be their greatest strength. We need only be willing to quiet our instincts and listen. Who is the Author? Convince,LLC and www.LitPredict.com founder Matt McCusker, MA is a nationally-known Litigation and former President of the American Society of Trial Consultants (ASTC). He has utilized his background in I/O Psychology to provide innovative solutions for legal teams and Fortune 500 corporations around the world.
Matt has served as a source for many media outlets (the Wall Street Journal, CNN, “This American Life with Ira Glass”, the Chicago Tribune, and more). He is available to teach/present about the crossroads of psychology and litigation at law schools, professional organizations and conferences.
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We have nothing to fear, but everything. Sure, we’ve all heard of the magic win-win unicorn settlement that was uncovered through collaborative mediation (often capped with a joint-rendition of We Are the World). However, even the rosiest of Neutrals will tell you that parties typically settle because they are afraid of what NOT settling might look like. It’s no surprise to us in the land of headshrinkers. Two cognitive psychologists (Kahneman and Tversky) won a Nobel Prize in Economics for their theory of risk analysis called Prospect Theory. In a laymen’s nutshell, these gents showed that human beings value LOSS about TWICE AS MUCH as they value GAIN when measuring risk in a decision. (Our future robot overlords will likely take great advantage of this glitch in our decision-making.) The evolution of our aversion to loss. This loss aversion is likely an evolutionary holdover. For ancient Homo sapiens, being cautious was a much better choice than going for the gusto. Remember, these were times when a bad case of pink eye could leave you at death’s door.
Winning is all about frame of reference. Research has demonstrated that the two most satisfied athletes on an Olympic podium are the Gold medalist (Duh.) and the Bronze medalist (Huh?). The Bronze winner is thinking about how close he/she came to NOT standing on the podium, while the Silver medalist is thinking about how close he/she came to winning the Gold. WINNING a case at trial or arbitration is a natural high filled with gratitude and adulation. Sadly, the intoxication of winning is generally a temporary condition. LOSING a case at trial or arbitration is painful. Moreover, it comes with long-term discomfort, like:
SETTLEMENT kills your chance of getting that winner's high, but it also removes some of the most emotionally painful outcomes off the list. Thus, settlement kinda feels like a win (in a kissing-your-sister sort of way):
Should we all just gird up our loins for battle? The lesson from this is NOT to silence your evolutionary instincts and fight every fight. In fact, settlement is frequently the right call after a regimented and careful risk analysis. However, we must also realize that we are all human beings walking around with human brains (most of us, anyway). Thus, lawyers and clients are highly-vulnerable to amplifying their fears of loss (just like soldiers, waitresses, IT managers, and everyone else on the planet). Loss will always feel much bigger than gain. You can’t flip a switch and change that in your mind. The only way to mitigate this predisposition is to:
By taking these steps, you are much more likely to settle a case because it’s the best course of legal action… NOT to simply scratch an evolutionary itch. Who is the Author? Convince,LLC and www.LitPredict.com founder Matt McCusker, MA is a nationally-known Litigation and former President of the American Society of Trial Consultants (ASTC). He has utilized his background in I/O Psychology to provide innovative solutions for legal teams and Fortune 500 corporations around the world.
Matt has served as a source for many media outlets (the Wall Street Journal, CNN, “This American Life with Ira Glass”, the Chicago Tribune, and more). He is available to teach/present about the crossroads of psychology and litigation at law schools, professional organizations and conferences. |
Matt McCusker
Musings on the state of the legal world by the Convince,LLC founder. Archives
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