Human Decision-Making is Inherently Flawed
“Thinking, Fast and Slow” is a book containing the results of decades of research by psychologists Daniel Kahneman and Amos Tversky. Their research had a profound impact on many professions because it disrupted common misconceptions about how humans make decisions. Most people believe that they are rational, logical beings who are in control of their decision making process. “Thinking, Fast and Slow,” demonstrates that human brains are inherently lazy and take little shortcuts. Another way of characterizing this is to think of the human brain as a regulator for your body — a regulator with a budget. The brain knows that its human body has a limited amount of energy, so the brain has to constantly assess how much energy is necessary for any given task, and it will only allocate that amount of energy for the task. For example, have you ever driven to work and don’t remember the drive? Our brains can go on autopilot and get us through routines while using minimal energy. The brain’s amazing efficiency also means it will take mental shortcuts when necessary, and it takes shortcuts in decision making when it can. Sometimes we make decisions in an “efficient” way, but those decisions come at the cost of thorough analysis which would have taken much more time, focus and energy.
Many people resist this and think, “I can just focus when necessary and it always works out.” The studies in “Thinking, Fast and Slow,” demonstrate over and over again that every human is subject to making snap decisions that involve taking shortcuts.
One of the most shocking studies involved parole judges. Most parole applications get denied. For a parole application to be granted, the application must be carefully reviewed and analyzed. Careful review and analysis takes time and energy. Over and over again, the study showed judges were significantly more likely to grant a parole after having a meal or a snack than after they had been working without food for some time. The human brain runs on glucose, so after a food break the judges had more mental energy available to deliberate and perform the thorough analysis necessary to evaluate complicated applications. As the judges tired, they resorted to their default “easy” decision: deny the application. This study shocked the legal profession so much that when it first came out they insisted there was an error in the study — it can’t be the case that a person’s future depends on whether the judge recently ate! — so they did the study again. The results were the same.
Intense focus is extremely tiring for our brain, and even when we don’t want to take shortcuts, when our brain gets tired it will do the least amount of work that it can get away with.
First Impressions are Powerful
One way our brains process information is based on when we receive information. The primacy effect means that when we are given a list or a set of information, we automatically:
- believe that the first things in the list are more important than the things in the middle or at the end of the list
- remember the first things in the list later on much better than things that were in the middle or at the end of the list
The old saying, “You never get a second chance to make a first impression,” is true. Studies have shown that the first impression bias is extremely difficult to correct, even if the first impression was “logically” wrong. Our brain cannot help but remember the things it learned first about a person or situation.
How to Leverage First Impressions in Your Situation
Put Your Audience First
In a legal dispute, the ultimate decision will involve someone other than you: if your situation is resolved by agreement, this means that the other side participated in the shaping the outcome. In many cases, agreements are reached with the assistance of a mediator. If your case involves an expert, the expert will need to analyze and assess information to reach an expert opinion. If your case goes to trial, then a judge or a jury will make the ultimate decision.
This means you need to think about your situation and circumstances from someone else’s perspective. How will they view your case based on the evidence that you have? Sometimes there are things that have happened that are important to you but ultimately may mean very little to someone else who is making decisions that affect you. Due to the way the human brain budgets energy, you must simplify your case as much as possible.
When an expert Is appointed In your case, contact the expert. Politely introduce yourself, give them your contact information, and schedule the first available appointment. This simple process tells the expert that you are prepared and helpful.
In most cases, the final trial is just one of several times that you have encountered the people involved with the trial. If you have an expert in your case, you will probably have already met the expert before trial. You may have already had several pretrial hearings before your judge. You must be aware of the first impression bias at all times, even before trial, because it is possible that by the time trial comes around, people have started forming opinions about you and your case based on what they have already seen and heard.
Organize Your Information
Every legal situation involves different types of information. By identifying your goals and your desired outcome, you can identify the information that will be most important to help a decisionmaker decide in your favor. This means putting your most significant information at the beginning of any email, information packet or exhibit list.
If you are involved in a situation involving child custody and you have compelling evidence concerning the other side: mental health records, written statements, or drug test results, then that evidence should likely be the first information presented to a decisionmaker.
If you are involved in a situation involving asset value and you have an appraisal or a recent purchase history, then that evidence should likely be the first information presented to a decisionmaker.
If it is possible to accurately summarize information on one page as opposed to hundreds of pages, use a summary. The goal is to make the decisionmaker’s job as easy as possible.
Maximize Your Time
Judges do not receive any special training for decision making or empathy. Judges are simply human beings with a legal background who are assigned the task of making decisions based on information presented under the Rules of Evidence.
Judge and juries have one thing in common: they have very limited attention spans. You have mere seconds to get their attention and make a good impression. If you are not successful, you will likely lose your case. This means that you must have a plan and be organized.
The following concept applies to judge and jury trials: they will assign value to a topic depending on how much time you spend on it. If you spend 70% of your time talking about the other side’s allegations and facts, you are merely highlighting their story, even if you are defending or resisting their story. To make a successful case, you must be organized and prepared to talk about your facts and your story. Without careful preparation, it is easy to be drawn in to spend your time addressing what your opponent claims, and if you spend too much time talking about their version of events, that may turn out to be the primary version of events that your audience hears about through the trial.
Use a Lawyer Who is Aware of the Importance of First Impressions
Nothing in this article is taught in law school. Some lawyers do not understand that simplifying a case and making the decision “easy” is better than telling the judge, “this is a really complex case,” or that the reason temporary order hearings and other pretrial hearings are so important is because of the long-term impact of the primacy effect bias. Lawyers who are not aware of the importance of first impressions do not send informative mediation statements to the mediator prior to your mediation session, and those lawyers will waive opportunities to make opening statements in hearings and trial. A lawyer who has training and education about first impressions can help you simplify issues and effectively deliver evidence in a compelling way.
Our Approach
We incorporate our knowledge about human biases and decision making into how we handle cases. This means considering the “optics” of a situation from the viewpoint of someone else: the mediator, the expert, the judge and the jury. It also means simplying and organizing information in the most efficient, understandable way possible. We work to prepare a brief, informative mediation packet for each case so the mediator understands the issues and where we are coming from before the mediation session even begins. We prepare an opening statement for every hearing and trial to give a preview of the evidence and to make a good first impression about why our client’s desired outcome makes the most sense. When possible, we use graphics: photographs, maps, and timelines, to make processing information easy and enjoyable for witnesses and decisionmakers.