How Neuroscience Awareness and Evolutionary Psychology Can Help Lawyers Avoid Claims and Offer Better Client Service

This article is by Nora Rock, corporate writer and policy analyst at LAWPRO.

The success of books like Malcolm Gladwell’s Blink and Norman Doidge’s The Brain that Changes Itself, has brought discussion of neuroscience out of the medical lab and into everyday conversation. The potential for what we know about the brain to be used to our advantage in the business and professional realms has spurred a growing body of research, and lawyers are beginning to pay attention.

From LawPRO’s perspective, the most interesting implication of this research is that a basic understanding of neuroscience may provide lawyers with insights into how to shape their own behaviour
so that they can better serve clients and avoid malpractice claims.

To learn more, we spoke to two lawyers who have studied the application of neuro awareness and evolutionary psychology to legal work. Nathalie Boutet is a Toronto family lawyer and mediator, and the founder of the Neuro Family Law Institute.™ Craig E. Jones, Q.C. is a professor in the Faculty of Law at Thomson Rivers University in Kamloops, B.C. His litigation career includes work on the Polygamy Reference, the Election Act challenge, the Missing Women Commission of Inquiry, and the “Occupy Vancouver” courthouse-access case.

Brain basics
To understand what is being said about the impact of brain physiology on how we practise law, we need to be familiar with the relevant terms (see this definitions graphic for a quick guide). Professor Jones says that “evolutionary psychology offers an explanation for the neuroscience. Neuroscience has confirmed the psychological evidence, which has been gathered since the 1960s, that many of our decisions are made sub-rationally.” In other words, they are made outside the realm of our awareness. Functional magnetic resonance imaging (fMRI) studies, Jones explains, have shown that between 90 and 100 per cent of our decisions are made subconsciously.

The theory of evolutionary psychology suggests a distinction between two decision-making mechanisms, which Jones refers to as “System 1 and System 2.” System 1, sometimes described as our “reptile brain,” is located in the basal ganglia region, an area that was well-developed from the beginning of our evolution as a species. Decisions originating in this part of our brains are primal, basic and instinctual, and they happen sub-rationally. System 2, which evolved later, is based in our brain’s neocortex. Its workings are within our conscious awareness – we perceive them as conscious thought. Neuroscience suggests that System 2 does not actually make many (or even any) decisions; instead, it either provides rationalizations for our System 1 decisions, or acts as an override mechanism that allows us to revise them.

The benefits of neuro awareness
The process of making an effort to take into account the interaction of the two systems when interpreting our own behaviour is what Nathalie Boutet describes as “neuro awareness.” Boutet views neuro awareness as a tool lawyers can use to gain a deeper understanding of “how we show up in the world, how we show up in negotiation.” Both Boutet and Jones believe that we can benefit greatly from an understanding of our clients’ psychology and thought processes. When we realize that our client’s reasoning is shaped by the same forces as our own, we can tailor our communications so that they are better understood.

But what does it mean to be neuro aware? How do we know what to watch for?

Heuristic biases
Biases in the neurological sense of the term, explains Jones, are forces that influence our decisions. A heuristic is a mental shortcut developed by our brains that promotes our capacity to make what Jones calls “fast and frugal” decisions – decisions that allow us, using as little mental energy as possible, to take action. A heuristic bias is one that allows us to interpret and classify the information that underlies our decisions in an efficient – though often imperfect – way.
While we are not aware of our biases on a conscious level, studies of decisions analyzed in the aggregate can, by proving that aggregate results diverge from a random distribution, reveal our biases at work. Researchers have identified many different kinds of biases, including confirmation bias and anchoring bias.

While a review of all of the various types of bias is beyond the scope of this article, an examination of just those two can provide a convincing argument for the benefits of neuro awareness.

CONFIRMATION BIAS
Confirmation bias is a heuristic that leads us to interpret new information in a way that serves to entrench our pre-existing beliefs.

Jones cites voter reaction to stories about the candidates in the November 2016 presidential election as a demonstration of confirmation bias at work. While there was no shortage of information available about the candidates, “it became clear that as they piled on, rather than changing minds, new facts tended to entrench people ever more deeply into their positions.”

Confirmation bias can be dangerous for investigators or justice system participants who are charged with drawing conclusions from facts, because it prevents the decision-maker from being dissuaded from early impressions, even if new facts don’t support those impressions. It’s the effect behind investigative “tunnel vision.”

Jones notes that research about the operation of confirmation bias has the potential to undermine the testimony of expert witnesses, because it has been demonstrated that a witness’s prior knowledge of inculpatory evidence about an accused can skew even his or her “technical” evidence, for example, fingerprint analysis.

Jones warns that to consider oneself immune from confirmation bias is dangerous, because the research suggests that the most intelligent and the most educated among us – and lawyers often see themselves as falling into that category − are also the most successful at rationalizing their decisions. “This means that the people who do the most thinking are actually the most likely to fall prey to confirmation bias.”

ANCHORING BIAS
Anchoring bias is a heuristic that prompts us, when we need to propose a numeric value, to skew toward a number we have recently seen. In negotiation or litigation, this can mean that the first number put forward by a party can strongly influence the eventual settlement.

But the anchor number need not even be relevant to the context: even reading a room number on the meeting room door can trigger the anchoring effect. It’s a brain shortcut with daunting implications. Not only are we biased, says Jones, “but all of our biases manifest themselves in a self-interested way. That means, for instance, that not only may you rationalize putting off a call to a difficult client to the afternoon when your decision-making processes are at their worst, but also, by the time the afternoon arrives you may rationalize not making the call at all because you have to prepare for court in the morning.”

How stress impacts decisions
Our System 1 thought processes are highly sensitive to perceived threats (though not very good at threat assessment). “It’s very traumatizing to encounter the legal system,” says Boutet of her clients. “When we are traumatized, there are reactions in our body that are identical to what would happen if we were encountering a beast in the wild.” These reactions prompt behaviours – for example, a fight-or-flight reaction – that are designed to help us save ourselves.

“These reactions destabilize us,” explains Boutet. “Understanding this really helped me, as I looked back on my interactions with clients. It explained that vacant look I would sometimes get. Now I understand that it means that the client is being triggered by something I am saying.” Being in the midst of a fight-or-flight reaction has a profound impact on short-term memory, which explains why clients may have difficulty remembering what was discussed in a meeting.

Emotional turmoil can also impair reasoning abilities, which can affect the quality of clients’ decisions in certain circumstances, for instance, in a negotiation where ex-spouses and their counsel are in the same room. “A raised eyebrow between spouses can set someone off, without the lawyers having any idea what is going on.” While lawyers may be better acclimated to the workings of the justice system, they are not immune to stress. Aggressive tactics by opponents can have a real impact on lawyers’ ability to reason clearly and to react in a measured way. Long-established advice designed to allow for the reconsideration of reactions – for example, the practice of allowing an email reply to “sit” for twenty-four hours before sending – can help to counteract the ill effects of stress.

Stress need not necessarily be acute, or generated by opponents, to impact performance; it can flow from simply taking on more work than we can effectively handle. Jones acknowledges that pressure to work faster is part of the reality of legal work, but he suspects that it may come at a cost: “One of my students studied the increase in the number of ethical complaints made to a law society alongside the increase in the cost of law school tuition over the same period within a jurisdiction, and found a possible correlation. One interpretation might be that as new lawyers graduate with higher debt, they take on a higher volume of work to try and pay for that debt, their reasoning is taxed, and one result is a greater number of complaints.”

The impact of energy on decision quality
Research studies of decisions analyzed in the aggregate1 show that the quality of our decisions decreases significantly when our brains are low on energy. Jones notes that brain functioning requires a high proportion of our body’s energy resources, compared to other organs – up to 20 per cent of our total energy consumption at any given moment. To conserve energy, our brains “push down” as many routine decisions as possible to the System 1 subconscious, primal brain.

The effective use of routine (for example, by relying on checklists; more on this below) can help unburden a lawyer’s brain so that he or she has more energy available to make important decisions. Even then, there is a limit on effective decision-making capacity. Says Jones: “any time you believe you are working at full capacity, you are really working at overcapacity” – and the quality of your decisions may suffer. Lawyers can compensate for this by scheduling their most difficult thinking work for times of the day when their energy is highest, and by being careful to control their workload so that enough time can be taken for important decisions.

Boutet is careful to monitor her clients for decision fatigue. She reminds them, when preparing for a negotiation or mediation session, to pack foods high in protein and low in sugar (for example, nuts) that promote a slow and continual release of energy, and to make sure that they remain well-hydrated, preferably with water instead of sugary or caffeinated drinks. Boutet considers this kind of advice to be well within a lawyer’s scope, because she has found that her clients appreciate anything that has the potential to improve the results that they get from the legal process. “I think it would be great if, as lawyers, we go beyond simply providing clients with information about the law. They ask broad questions, and they want to know how to prepare themselves for the process.” Boutet takes care to monitor her own nutrition for the same reason: to be certain that she is bringing her most effective self to the task. Boutet’s training in event preparation has taught her how important a healthy lifestyle, including healthy eating and sufficient sleep, are to a lawyer’s own brainpower. “Lawyers must try to be mindful of what their brains and bodies need for a gruelling event, like a full day of trial or a long mediation.”

Practical strategies for improving our decisions
For many, the revelation that 90 to 100 per cent of our decisions happen sub-rationally can be discouraging. If we don’t have conscious insight into our choices, how can we have any control over our performance? Are we simply doomed to make mistakes?

Jones reminds us that our System 1 decision-making process evolved to promote the making of good decisions in a fast and frugal way. In general, we can count on our gut reactions to be useful − there is no reason why a sub-rational decision is automatically a bad decision. But the process is not perfect, and so when it comes to our most important decisions, it is helpful to take steps to ensure that our System 2 decision-making process is doing what it is designed to do: provide an effective override mechanism.

The seven strategies that follow can help you apply the emerging lessons of neuroscience and evolutionary psychology to the day-to-day work of your practice. Or to read the whole original article, click here.

This article originally appeared in the February 2017 issue of LAWPRO Magazine. All past issues of LAWPRO Magazine can be found at www.lawpro.ca/magazinearchives

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