Daniel Kahneman’s bestseller, Thinking Fast and Slow, is not only a fascinating read, but also, it contains insights that can be an immense help to clients in making decisions about their cases, choosing lawyers, negotiating settlements, and evaluating the advice of their lawyers. Here is what clients (and trial lawyers) can learn from the book:
Lesson One: Intuitions are not as Reliable as We Think
With objective evidence and data, Mr. Kahneman proves the point that many people are overconfident and place too much faith in their intuitions. I know from experience that lawyers are just as susceptible to this way of analysis as any other group. On many occasions, I have heard misguided advice from lawyers that was the result of their relying on some kind of intuitive impulse rather than spending time and effort evaluating a case from many angles (which takes time), bouncing the facts of the case off of several other people, including lawyers and non-lawyers (especially important where a jury trial is involved), and seeking and studying objective data (like published case law).
Lesson Two: Jury Outcomes are Unpredictable
When I first became a trial lawyer 25 years ago, I participated in the National Institute of Trial Advocacy and read extensively about the decision making process of juries. What I learned, and was taught, by seasoned trial lawyers and psychologists, is that most juries will ignore the law, the jury instructions, to get to the result which they think is fair. In my trial practice, I have found that to be true.
After reading Kahneman’s book, I realized that there is a whole other layer in the jury decision making process of which we have to be aware. You can’t help but be persuaded by Kahneman that, even the people who make decisions, like jurors, do not understand fully why they decided something the way they did. The point Kahneman makes, and makes well, is that we can all be primed to make decisions in a certain way without even knowing that we have been primed or what has primed us.
Lesson Three: People Seek Data that is Compatible with Beliefs They Already Have
In trying a case, you have to be very aware of this psychological truth and use it. No juror is a blank slate. You have to figure out their beliefs and prejudices the best you can and put on the evidence that will bolster those beliefs and prejudices. We also have to remember that judge’s minds are just as likely to think that way too.
Lesson Four: Beware of the “Anchoring Effect” in Negotiations
For me, Kahneman’s findings and discussions about the effects of anchoring were the most fascinating and useful part of his book. In a nutshell, the anchoring effect can be described this way: Whatever number is on the table, no matter how unreasonably high or low, will have an effect on you, and you probably will not even realize it.
Lesson Five: Beware of the Lawyer Who Is Too Certain
There are some matters on which lawyers can be certain or pretty certain, make no mistake. There are lots of areas, however, where lawyers cannot be certain, but project certainty. Kahneman points out that people love experts who appear confident and overconfident even when such confidence or overconfidence is totally misplaced. He warns that it is wise to take admissions of uncertainty seriously and declarations of high confidence with caution.
I have seen how some lawyers attract and keep clients with unfounded advice about how their client’s case will turn out. An opposing lawyer inadvertently disclosed a communication he had with his client in a breach of contract case I was handling many years ago. I couldn’t believe that he was telling his client that their defenses would work at trial. The defenses did not even apply based on the facts. That lawyer’s client paid him to go all the way through trial. The judge dismissed all of the defenses, but not before expressing her annoyance that they were even asserted.
In a will contest case I handled, the opposing counsel told me early on in the case that he couldn’t see how the jury could set aside the will, so there was no reason to discuss settlement. The will was set aside, and his clients paid him to handle the case all the way through the trial.
If you read Thinking Fast and Slow, you may be less reluctant, and fortunately so, to choose the lawyer for your case who made you feel like you had a better chance of success than another lawyer. For Tennessee trial lawyers and their clients, Kahneman’s findings and opinions are deserving of close attention.