Written for economists, the classic THINKING FAST AND SLOW by Daniel Kahnemann should be recommended reading for lawyers. Until advocates in and out of the courtroom understand thinking/decision-making processes, in particular what Kahnemann dubs “thinking fast” and “thinking slow,” they cannot expect to convince decision makers to think their way.
Although several years old, this article successfully walks lawyers through Kahnemann’s research and writing and then translates it to the preparation of witnesses and the arenas of litigation. Topics covered include the need for a coherent story; “priming,” sometimes known as “anchoring;” confirmatory bias; and “the impact of first impressions.” Here, the authors highlight an example Kahnemann gives:
Consider Professor Kahneman’s short descriptions of two people, Alan and Ben:
Alan: intelligent; industrious; impulsive; critical; stubborn; envious.
Ben: envious; stubborn; critical; impulsive; industrious; intelligent.
Careful reading will show that they share the same traits; but the order of presentation shapes how they will be thought of.
The authors conclude, properly, as follows:
Many lawyers keep [Aristotle’s] Rhetoric close at hand as they contemplate the ways in which their clients’ positions can be put most effectively. They now have Professor Kahneman’s Thinking, Fast and Slow as well. It should be no less indispensable to those who wish to increase their understanding of how best to reach those they wish to persuade.
44 Loy. U. Chi. L.J. 1377, 1399.
The authors are correct – but if you can’;t find the time to read Kahnemann’s original, keep this article handy.