Articles Posted in Thinking

All decisions, including those made by in-house attorneys, are based on values and involve an implicit or explicit trade-off of values. That being true, attorneys will make better decisions if they have a methodology for addressing the values inevitably present in a situation.

According to MIT Sloan Mgt. Rev., Vol. 49, Summer 2008 at 75, a useful article about values and decisions, “Values are enduring beliefs, both hard-wired (i.e., acquired genetically) and shaped by cultural context, about preferred ‘end states’.” The authors of the article describe a decision map – “a tool for exploring the values and motivations inherent to” important decisions. The map consists of four elements: choice options, consequences, outcomes, and values/goals.

Choice options are the alternative actions available to the person making the decision. Most of us feel cabined in our choices, even though in fact we often have several we could choose from. Consequences are the short-term results of a decision; outcomes are the longer-term impacts of a decision. The framework proposed by the article pushes decision-makers to express the positive and negative poles of outcomes and consequences for a broader array of choice options. The final step is to consider all that in light of personal goals and values (See my post of May 23, 2008: values of a law department, with 12 references cited.).

If you are in in-house litigator and you sit down to hammer out a settlement with your opponents over a meal, be sure to serve plenty of tryptophan.

It turns out that levels of serotonin, a brain chemical that seems to control our reactions to unfairness, depends on tryptophan levels, and together they influence how we view offers. According to Scientific Am., Aug. 2008 at 36, neurophysiology researchers found that subjects low in tryptophan, an ingredient the body needs to manufacture serotonin, were more likely to reject offers in an ultimatum game. In that game, one subject proposes how to divide a sum of money and the other subject either accepts or rejects. A rejection means that no one gets anything. Serotonin-deprived subjects were much more likely to reject offers than were normal subjects, full of tryptophan.

MIT Sloan Mgt. Rev., Vol. 49, Summer 2008 at 11, offers some good ideas about brainstorming (See my posts of Nov. 28, 2005: mind-map software helps with brainstorming sessions; Dec. 9, 2005: the Delphi technique; Oct. 30, 2006: suggestions and two other points: have rules and push participants to prepare ahead of time; and Nov. 25, 2006: more techniques to improve brainstorming.).

Researchers compared the quantity and quality of ideas generated by brainstorming groups of two kinds: one where all the effort took place in a group setting and the other where members prepared on their own before joining the group to share their thinking.

The traditional groups consistently came up with the best ideas, yet also the worst ideas. The hybrid groups “produced more ideas that were, on average, of higher quality.” Furthermore, traditional brainstorming groups are weaker when it comes to recognizing the best ideas they’ve generated.

You may feel smarter just from reading this post!

Much research is underway regarding how our brain operates and what that means for how we can effectively use them (See my posts of Aug. 20, 2006: neuro-economics; and Aug. 16, 2006: another aspect of brain physiology.). I predict that neuro-lawyering, the translation of findings in neuroscience to the practice of law, will become commonplace in the next decade.

Brain research is starting to help us understand some of our emotional reactions (See my posts of Oct. 29, 2006: why pro bono feels good; Feb. 17, 2008: why we pay expensive law firms; June 11, 2007: the sway of well-known brands; and Feb. 12, 2006: the amygdala hijack.).

We learn from the Harv. Bus. Rev., Vol. 85, May 2008 at 52, that stress causes the body to produce hormones called glucocorticoids. Those hormones over time wreak particular damage on cells in the hippocampus, a part of the brain that is deeply involved in learning. For example, stressed people do not do math as well or process language as efficiently, and they have poorer memories of both the short and long term variety. The article mentions that one study found that “adults with chronically high stress levels performed 50% worse on certain cognitive tests than adults with low stress.” Obviously, these mental abilities are important to in-house counsel (See my posts of June 5, 2006 and June 12, 2005: stress among in-house lawyers.).

Stress that afflicts corporate counsel has many causes (See my posts of Feb. 8, 2006: litigation; Oct. 12, 2006: interruptions; Oct. 22, 2006: bureaucracy: Dec. 12, 2006: “extreme jobs”; June 30, 2006: workaholism; May 2, 2007: political fights; June 5, 2006: conflict; Nov. 24, 2007: pressures of work complexity, volume, and velocity or all of the above; and April 16, 2006: practicing solo.).

In-house lawyers can alleviate some of the stress they face (See my posts of Dec. 3, 2007: four tips to help reduce stress; Nov. 7, 2007: six more tips; April 16, 2007: corporate health centers; June 10, 2007: work/life balance; Feb. 25, 2008: exercise; May 18, 2007: vacations, with 7 references; and Aug. 2, 2006: Scottish-lawyer stress management.).

If you need to know something from a person who is more knowledgeable than you, such as a highly specialized partner at a law firm or your colleague in the law department, there is some pointed advice from Intelligent Life, Spring 2008 at 27. Don’t waste your time gathering reams of information. “Ask your experts for two-minute briefings, or the top three points. Instead of asking for advice, quiz them about what they would do if they were in your place” (See my post of May 16, 2006: how to manage a lawyer who knows more than you know.).

How much and how quickly you can recall facts is one way to distinguish yourself as an in-house lawyer. Along with your time, your memory is your stock in trade. Fortunately, techniques exist that let you sharpen your memory (See my posts of April 22, 2008: cognition-enhancing drugs; April 18, 2005: take notes; March 5, 2005: Google Desktop; and Jan. 17, 2006: narratives to store memories; and May 2, 2008: get enough sleep.). Hence, the advice of Wired, May 28 at 120, has significant importance (See my post of July 15, 2005: modes of learning.).

A fundamental practice, considered in detail in the article, helps you store and retrieve facts better. Return to the material a few times and at the right time intervals. The efficiencies created by precise spacing are so large, and the improvement in performance so predictable, that all of us should remember to put it into practice.

Sleep researchers have found that power-napping, and even dozing for as little as six minutes, is enough to significantly enhance memory. “Several recent studies of sleep and sleeplessness show that slumber is especially important for doing clever stuff with information, such as extracting the gist of what has been learned, combining facts and interesting ways and dealing with the day’s emotions” (See my post of March 30, 2008: more on creativity and click here for my recent article on ways to increase it.).

The flip side, as recounted in Scientific Am., May 2008 at 32, is that sleep-deprived managers “become much more blinkered in [their] thinking, less able to deal with novelty and less able to evaluate risk.” In-house counsel under pressure to produce more in less time certainly need to get enough sleep. Apparently, while we sleep we add meaning to information and fit it into a larger context. In terms of how well you are able to remember and think, if you don’t get enough sleep it should keep you up at night!

The fewer the lawyers in a law department the more likely they are to be generalists. Yet specialization is the trend today, a trend that some investigators argue has neurological underpinnings. Research presented in the Wilson Quarterly, Vol. 31, Summer 2007 at 82, shows that the more people know, the more they can learn.

The initial learning of facts and events is recorded in a part of the brain called the hippocampus. As time passes, the brain may proceed to construct a permanent memory in other parts of the brain, notably the neocortex. Research suggests that the neocortex creates schemas in the brain into which newly acquired information fits. The more elaborate the schema, the easier the brain can make sense of, store, and retrieve new information.

Since specialists in an area of law presumably build richer schema (See my posts of Nov. 6, 2006: expert lawyers; and June 7, 2006: attention density and experts.), they can more quickly absorb and make sense of new cases, techniques and learning (See my post of Nov. 16, 2005: assigning lawyers to specialty areas of law.). Generalists may be plentiful, but specialists learn more quickly in their knowledge domain.

Quantitative approaches to case evaluation have many proponents (See my posts of Oct. 24, 2005: decision-tree risk analysis software; Feb. 8, 2006: a step to prepare for mediation; Jan. 17, 2006: decision analysis; and June 18, 2007: belief nets compared to decision trees.). To estimate the risks of winning and losing and the potential payoffs for different scenarios sounds very buttoned-down, very rational, very progressive. All plausible, but according to the ABA J., Vol. 94, April 2008 at 52, the tools have serious limitations.

A litigation manager in a law department should bear in mind four of the limitations. The article first mentions the sheer complexity of most commercial litigation in federal courts. It cites a case where the decision-tree analysis of an insurance company “set forth 83 different, probability-weighted damage and coverage scenarios.” A second concern is “the tendency to overemphasize those aspects of a problem that can be quantified and to minimize the significance of factors that cannot be easily quantified.” Third, humans too easily discount small probabilities even if the result is massive: a one percent chance of death deserves careful thought. Finally, according to the author, quantitative tools generally do not account well for different attitudes toward risk.

Not surprisingly, numeric case evaluation has its uses and its drawbacks.