Book Review of Psychology for Lawyers

Vol. 20 No. 4

By

Starting with the Conclusion

Psychology for Lawyers is a great book. Whether you are a transactional lawyer, a litigator, a managing partner or a mediator, you owe it to yourself to buy it, read it and build its lessons into your practice. Authors Jennifer Robbenolt and Jean Sternlight have produced a book that is thorough and readable, based in theory yet imminently practical, and as entertaining as it is educational. 

The book consists of 15 chapters. The first seven are a primer in psychology, the next seven apply psychology to legal practice and a concluding chapter helps the reader use psychology to achieve satisfaction as a lawyer and as a person. In a mere 460 pages, the authors bring lawyers a wealth of information. In my view, this is a clear best-in-class and a “must buy.”

Now that the conclusion is all wrapped up, we can work our way back from the beginning. We’ll start with some history.

A Brief History of the Intersection of Law and Psychology

For most of history, the intersection between law and psychology has been dominated by a single question: whether a criminal defendant lacks the capacity to understand whether his actions are right or wrong. If Wikipedia is to be believed, “not guilty by reason of insanity” was argued in the time of Hammurabi. 

In more modern times, criminal law continued to dominate the law-and-psychology discussion. In her aptly titled 1979 opus, “Eyewitness Identification,” psychologist Elizabeth Loftus showed that cross-racial identifications tended to be particularly unreliable and that eyewitness testimony was subject to the vagaries of human memory. Even more recently, Loftus and other psychologists began to grapple with false, altered or implanted memories in cases involving allegations of sexual abuse.

While the intersection may have expanded, a mere smidgen of the law – that is, the criminal law – has enjoyed all the attention. And it still enjoys the lion’s share of attention by those who study the science of mind. The MacArthur Law and Neuroscience Project’s emphasis on free will and criminality is just one example of this continuing fascination.

For about the last three decades, law professors teaching negotiation have become aware of the relevance of cognitive and behavioral psychology to the practice of law. In the late 1980s, professor Robert Mnookin (then teaching at Stanford) brought psychologists Amos Tversky and Lee Ross together with economists, game theorists and lawyers to explore the intersections between legal negotiation and psychology. At least since 1991 (when I was enrolled in one of his classes) and probably long before, Harvard’s Roger Fisher designed modules in his negotiation courses in which psychologists would help guide a legal negotiator through the journey toward understanding interests. 

In the past two decades, these collaborations between legal academics and psychologists have borne a great deal of scholarly fruit. Many terrific book chapters, articles and even the rare self-contained volume describe the various connections, overlaps and intersections of negotiation and psychology. The aforementioned Tversky and Ross each wrote important chapters in a book entitled “Barriers to Conflict Resolution.” Mnookin has written and spoken extensively about the topic of psychological barriers to conflict resolution. Shortly before his passing, Fisher wrote with Dan Shapiro about the role of emotions in negotiation. Russell Korobkin, Chris Guthrie, Jeff Rachlinski and many others (including myself and the authors of Psychology for Lawyers) have added articles about the importance of understanding the human component of negotiation and decisions, and in particular, the kinds of negotiations and choices that lawyers see in their work.

However, despite all this great progress in the field, until Robbenolt and Sternlight wrote the book that is the subject of this review, no one had captured all the essentials in a single volume. The closest thing is a well-regarded article in the Ohio State Journal of Dispute Resolution titled “Good Lawyers Should be Good Psychologists.” That article was written by – you guessed it – Robbenolt and Sternlight. Their new book is the full expression of the vision that began with that 2008 article.

Merely a Slice of the Psychological Pie

Psychology is a sprawling discipline, and the psychology section at any large bookstore (remember those?) might contain thousands of volumes. So in a mere 460 pages of text, Robbenolt and Sternlight wisely refrain from taking on the entire field of psychology and omit discussion of aspects of psychology that are not directly related to lawyering. For example, there is no discussion of developmental psychology, and neither Freud nor Jung makes an appearance in the book.  

The first seven chapters are a primer on those aspects of psychology that apply to the common activities of the lawyer. The topics and the titles of Chapters One through Seven, in order, are:

  • Perceiving and Understanding the World
  • Memory
  • Emotion
  • Judgment Shortcuts
  • Decision Making
  • Persuasion and Social Influence
  • Interpersonal Communication

This is a phenomenal 162 pages of material. Up until now, when laypeople wanted to learn about how the human mind can be tricked and misled, I (and others) would recommend Scott Plous’ The Psychology of Judgment and Decision Making as an introductory book. It was recommended to me in 1993, and I’ve recommended it dozens of times since. With all due respect to Professor Plous, I now will recommend the first seven chapters of Robbenolt and Sternlight’s book – especially to lawyers. The authors have packed more into their 162 pages than any other work I’ve seen, and it’s accessible (as the Plous book also is) and current (which the Plous book is not).

These seven chapters cover a wealth of material concisely. For example, Amos Tversky and Daniel Kahneman’s Nobel Prize-winning work, known as Prospect Theory, fills thousands of pages in a wide variety of prestigious journals of medicine, psychology, business and law (of course you remember this theory – losses hurt more than commensurate gains feel good; we are risk-seeking in the face of losses and risk-averse in the domain of gains – mostly; and whether something is a gain or a loss can be a cognitive illusion). But few lawyers in a busy practice have time to wade through all that literature and figure out how the theory applies to the cases sitting on their desks.

Robbenolt and Sternlight have synthesized all this into a three-and-a-half page summary that includes a quote from a Supreme Court Justice and good advice on how to spot this psychological concept at work. So it is with literally hundreds of psychological principles.  Robbenolt and Sternlight have collected and distilled, organized and presented vast amounts of psychological source material in user-friendly chunks, in an accessible, user-friendly order. 

Each lesson stands alone and does not require further explanation. At the same time, the lessons inspire the student to learn more. While the first seven chapters can stand on their own as a primer in the psychology of decision-making and negotiation, they also serve to arouse curiosity for the chapters that focus on application.

The Relationship between Psychology and the Everyday Practice of Law

The second seven chapters are the best how-to guide I can imagine on the topic of applying psychology to lawyering. The titles of chapters eight through 14 are:

  • Justice
  • Interviewing Clients and Witnesses
  • Counseling Clients
  • Negotiating and Mediating
  • Discovery and Due Diligence
  • Writing
  • Ethics

In this longer section of the book, the authors take the basics and show lawyers where to spot psychological issues and how to deal with them. Robbenolt and Sternlight have turned psychological phenomena into action items for practicing attorneys. 

In the limited space in this review, I can’t explore all the advice the authors provide. But here are a few tidbits:

  • Under Interviewing and Counseling: “Offering a client a cup of coffee or tea can help to create a feeling of rapport” (as opposed to offering a cold beverage).
  • Under Counseling Clients: “Asking questions can be an effective strategy for conveying an unpleasant assessment” (as opposed to making declaratory statements).
  • Under Negotiating and Mediating, there is advice on offers – who should present the proposal and to whom the offer should be conveyed.
  • Under Conducting and Defending Depositions:  “[H]ave [your witness] repeat the questions out loud before they are allowed to answer .... if they can’t repeat it out loud, it’s hard to argue that they have heard the question accurately.”

What Else Makes This Book Great?

The book is peppered with quotes, YouTube cites, exercises and notes that reinforce the material and break the reading up into manageable chunks. Everything, from chapter headings to font choices (like italicizing psychological terms of art), contributes to making the book accessible as a reference guide while still maintaining readability for the “cover-to-cover” set.

Each chapter ends with a short box entitled “Summing It Up.” Devices like this make the book easy to digest and provide a useful way to refresh one’s memory when using the book as a reference guide.  Each “Summing It Up” consists of action items that reinforce the link between theory and practice. For example, in the chapter on Persuasion and Social Influence, the advice contains easily-followed prescriptions such as “Increase persuasiveness by taking the perspective of the audience, focusing their attention on high-quality messages, offering concrete examples, and presenting two-sided messages.” Under Discovery, the summary says, “Remember that while information can be very useful in countering optimistic overconfidence, it is also costly and may not bring all the hoped-for benefits.”

For the lifetime learner, there are copious endnotes with the kinds of citations one would expect from two well-respected scholars. The endnotes take up 116 pages, and those don’t even include the books and articles recommended “for further reading” at the end of each chapter.

Do I have any quibbles? Perhaps one, and it’s small. Some may find reading this book to be like drinking from a fire hose. There is so much information in such a small volume that readers new to the subject may become flooded after a short immersion, unable to absorb more data. I suggest that such readers proceed slowly and patiently, approaching Psychology for Lawyers more like a reference book than a novel. 

Back to the Beginning

As I said at the top of this review, this is a great book. I recommend it highly to lawyers and non-lawyers alike, for those who already understand how to use psychology in their legal practices and for those who aspire to learn. But if my recommendation isn’t enough, let me try some psychology.

Supplies are limited!   (see “Scarcity,” p. 129)....  
Everyone loves this book! (see “Social Proof,” p. 131)....
Miss this book and you’ll be missing a huge chance to improve your lawyering (see “Framing,” p. 88)....

Highly recommended!

Richard Birke is Professor of Law and Director of the Center for Dispute Resolution at the Willamette University College of Law. He thanks all his colleagues for their continued interest in law and the science of the mind. He can be reached at rbirke@willamette.edu or http://www.willamette.edu/wucl/faculty/profiles/birke/.

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