My mother, a critical care nurse who works at a teaching hospital, recently relayed to me this anecdote. She was talking to a medical resident about a patient in their mutual care and gave her gut diagnosis. The resident asked my mom how she could make the apparent off-the-cuff pronouncement. My mother explained that it was her intuition—not a guess. By “intuition,” my mother meant experience (expertise) accumulated over a long career enabling her to instantly, subconsciously recognize a pattern. It turns out her diagnosis was correct—both of the patient and of her thought processes. But, our reliance on decisions we can make in the “blink” of an eye can result in disastrous decisions in other contexts.
Of course, how lawyers decide is very important given the fact that we advocate for and are entrusted with other’s rights. Economist and Nobel Prize winner, Daniel Kahneman explains that like all organisms our brains seek to conserve energy. The brain does this by prioritizing its workload, as Kahneman describes it, between thinking fast and thinking slow. Thinking fast is accomplished by the brain using heuristics or rules of thumb. Thinking slow is accomplished through the hard work of deliberate thought, which requires focus to the exclusion of other tasks.
Although heuristics, without which we would be paralyzed by being in a state of constant analysis over the smallest decisions, allow us to make rapid judgments with only partial information, such decisions can be terribly biased and wrong. Because these judgments occur subconsciously and immediately, we are not aware of their occurrence. Through research performed in the 1970s, Kahneman and Amos Tversky identified specific heuristics. For example, the availability heuristic explains how one can over- or underestimate how likely an event is to occur based upon how easily information comes to mind. If an infrequent event like a plane crashing is more easily brought to mind because it is dramatic and tends to be well-publicized, a person is more likely to overestimate the possibility of its occurrence. Sound familiar?
Attitudes can also be influenced depending on a person’s recent experiences through instant associations the brain makes. So, one can be predisposed (or primed) to feel or act a certain way simply by having recently read a passage sprinkled with particular words. Another mental shortcut, which also has implications for our advocacy, is the representative heuristic. This heuristic is demonstrated when people use categories and ascribe a set of characteristics to an individual based upon resemblance to the prototype (or representative example) of the category. You can imagine how this might play out as gender or racial bias.
As How We Decide author, Jonah Lehrer, points out, “different decisions benefit from different types of decision-making.” For example, going back to my mom’s intuition example, Kahneman posits that we can trust expert intuition when a situation provides a cue that gives the expert access to information stored in memory. Intuition in this case is actually recognition.
Fundamentally, we can learn to make better decisions by understanding how we make decisions.
And better decisions can only benefit our clients and the law itself.
Laurie Ristino is the Director of the Center for Agriculture and Food Systems and an Associate Professor of Law at the Vermont Law School. The views expressed in this column are solely the author’s own. Comments? Ms. Ristino may be reached at firstname.lastname@example.org.