(1) Some people maintain that “risk” is not an independent something waiting to be measured. It is, instead, completely definitional, situational, cultural, and malleable. As part of this argument, think about all the ways a “legal risk” might be described: delay, money lost, reputation besmirched, time wasted, share value diminished,…
Much has been made about expertise being the payoff of 10,000+ hours of disciplined, thoughtful practice (See my post of June 12, 2005: Herbert Simon’s 10-year rule on expertise; July 15, 2005: how to increase “deep smarts.”; Nov. 6, 2006: effortful study over time, plus motivation; Jan. 18, 2007: concentrated…
One of the consistent attacks on the rational homo economicus is that we so often fail to let our judgments of probability stay close to an informative statistic, referred to by cognitive researchers as a “base rate.” If you were asked the average number of lawyers in the AmLaw 200…
The more arguments you come up with to support your decision, the less confident you will be that the decision is correct. Doesn’t that disturb you, as someone who prides yourself on thinking honestly, objectively and thoroughly about what positions to take? Yet the psychological paradox has been well researched,…
Once a number is put on the table, it can exert an untoward effect on those around the table. The “anchoring effect” of the first number put forward in a negotiation or discussion powerfully, yet often unconsciously, shifts both sides closer to that number. Even wholly unrelated anchors weigh down…
Our evolution equipped us to create causal explanations for events much more readily than to grasp underlying statistical explanations, to use the terms of Daniel Kahneman, Thinking, Fast and Slow (Farrar, Straus & Giroux 2011). Causal explanations, often in the form of a narrative, explain what has happened by people…
An essential attribute of a good lawyer is the ability to think clearly. It appears, however, that whatever goes on inside a human’s brain when it is processing input has two radically different personas: an impulsive, intuitive, impressionable, pattern-creating function and a more deliberate, evaluative, orderly and demanding function. Hence…
Cognitive psychologists generally believe that ideas, somehow and by some means not yet fathomed, surface or are created from a neural network of associative memories. This view is according to Daniel Kahneman, Thinking, Fast and Slow (Farrar, Straus & Giroux 2011) at Chapter 4. Our first reaction to something, what…
It’s not crowdsourcing, quite, but the potential can be seen for lawyers to use computer databases to augment their own inputs. One precedent for this we already know: document assembly. With that genre of software, input from a user allows the database to put together a document or answer a…
“Human beings tend to seek simple and neat explanations for a complex world.” Jochal Benkler explains in the Harvard Bus. Rev., July-Aug. 2011 at 84, that “cognitive fluency” is “the tendency to hold on to things that are simple to understand and remember.” Cognitive fluency may be at work in…