Skip to main content

Strange book recommendation for lawyers

By June 7, 2005law

Malcom Gladwell’s new book is called Blink, ‘the power of thinking without thinking.’  The point of his book is that humans have amazing powers of ‘rapid cognition.’  He starts by examining how the J. Paul Getty Museum could have been duped into paying $10 million for an ancient Greek statue that turned out to be fake.  Obviously, the Getty did extensive research and background checks before deciding to buy the statue. They took core samples from the statue and had them analyzed, along with X-Rays, electron microprobes and the like.

What they didn’t do was invite art experts to just come stand before the statue and look at it. They did that after they bought the statue, and when they did they heard a lot of muttering.  "It just doesn’t look right," each art expert would say within seconds of seeing the statue.  Unconsciously they knew it was a fake, but they were often at a loss to provide any detail as to how they knew this.  Eventually, it turned out the statue was a fake.  So how were the art experts able to make an accurate assessment of the statue in seconds while the rigorous scientific tests failed to provide accurate information?

The answer to this question is contained in Blink and I won’t attempt to answer it here.  The book provides many interesting examples of how ‘rapid cognition’ works and why it works the way it does (and also why it often doesn’t work very well).  Gladwell points to a study by psychologist Nalini Ambady who gave students short video clips of teachers in a classroom and then asked them to rate the teachers.  The students had not ever seen the teacher and the video clips had only video, no sound.  The assessment by these students closely matched the assessments of students who had actually taken the teacher for an entire semester.  And these assessments were closely correlated even when the length of the video clips was reduced from ten seconds to two seconds.

How is it possible that a person watching a silent two-second video clip of a teacher he has never met will reach conclusions about the quality of the teacher that are similar to those of a student who has sat in the teacher’s class for the entire semester?  The answer is that we form assessments rapidly based on a lot of unconscious information that we are not often aware of. 

Obviously, there is the possibility of mis-impressions and poor judgment.  That’s not news.  What’s intriguing is how effective we often are at making snap judgments.  Gladwell is right when he says "I think we are innately suspicious of this kind of rapid cognition.  We live in a world that assumes that the quality of a decision is directly related to the time and effort that went into making it."

This is certainly true in the legal profession.  And, while you generally don’t want to hire a lawyer who runs around making ‘snap decisions,’ part of the reason that many people get frustrated with lawyers is that they don’t ever make quick decisions, particularly if they bill by the hour.  Is there room for ‘rapid cognition’ in the legal profession?  You bet there is.  Are lawyers likely to try to understand how to make better quick decisions?  Probably not.  Still, one thing sort of suggests an openness by lawyers to new forms of thinking. 

Back in the 1980s trial lawyers started using jury consultants.  The jury consultants were usually trained in psychology and were ostensibly hired to help figure out the bias and attitudes of potential jurors.  Eventually, the role of the jury consultant expanded a bit, to the point where the jury consultants were advising the lawyers on how to communicate more effectively.  Lawyers were told to use ‘simple themes’ and to repeat those themes as often as possible.  As lawyers saw the rewards of heeding the advice given to them by the ‘jury consultants’ they trusted the process more.  They didn’t always understand how the jury consultant could figure out which ‘themes’ were beneficial, but they saw that their extensive legal knowledge of the case was actually a hindrance to seeing the case from the perspective of a juror.

In the end, it’s how ordinary people see things that matter most.  People make a lot of complex decisions quickly, and lawyers who have to deal with them would be wise to recognize this fact.   Reading Blink certainly couldn’t hurt.


P.S. If you appreciate my observations, you might want to join my inner circle.

2 Comments

  • Ernie says:

    Oops! Good Freudian slip, though. And a good test of your ‘blink’ powers of spelling observation (smile).

    Thanks for the catch. I’ll change it now.

    Ernie

  • Anonymous Pedant says:

    An ancient Greek statute, eh?

Skip to content