Neuroscience’s Insights and Litigation Decisions

The core teaching in How We Decide is that the various parts of our brain work together.  The limbic or reptilian brain is a powerful supercomputer that has evolved over millions of years.  It constantly gathers information at a subconscious level and “informs” decision making by triggering pleasure and fear centers in the brain.  We experience these assessments as intuition or gut instincts.  The frontal cortex, a brain part that came along later in the evolutionary cycle, assesses information in a different, “rational,” way.  We experience these assessments as conscious thought, and persuade ourselves that the key to correct decisions is a sufficiently complete list of pros and cons.

How do these insights play out in litigation?  Well, we ignore our subconscious brain at our peril.  This remarkable tool collects and processes data at lightning speed.  Over time, thanks to the lessons of trial and error, experts get a sense for a lawsuit’s strengths and that sense should receive our attention.

At the same time, our subconscious brain can mislead us.  Fear of pain makes us act in ways that objectively don’t make sense.  As Mark Twain noted, “a cat won’t sit on a hot stove twice; the problem is it won’t sit on a cold one either.”  Bad is stronger than good (negativity bias), so the bad feelings forecast in the event of a loss can overwhelm the best judgment to proceed notwithstanding an uncertain outcome.  One way loss aversion in the litigation arena manifests itself is in difficulty briefing any issue that is not a slam-dunk.  Lawyers will wring their hands over the responsive arguments they anticipate (or imagine) from the other side and then be paralyzed from moving forward lest they file a brief that might lead to a loss at the motion hearing.

Another time loss aversion comes to the fore is on the eve of trial when every defect in your case is magnified and suddenly the sure winner that you told your client they should definitely take to verdict is now understood to be a terrible case that should be settled immediately.  (Clients of course love this pretrial epiphany, and think fondly of the hundreds of thousands they spent in trial preparation).  My colleague refers to this as “squishy socks” syndrome, when the trial lawyer is sweating so badly that you can hear them “squish” as they walk down the hall in the days before trial.

This is where conscious thought must come into play.  The experienced lawyer tells the young brief writer, “it’s okay, yes we can lose this motion, but let’s make the best arguments we can and see what the other side comes up with and then let the judge decide.”  The lawyer preparing for trial tells herself (or her nervous colleague), “let’s not confuse the desire to avoid the anticipation of pain from an adverse verdict with a judgment about the strengths of our case.  If this was such a great case months ago, has anything changed that should lead us now to distrust that earlier judgment other than the fact that the trial date has arrived?”  (One problem with fear is that it narrows cognitive thinking so you do not see the big picture.  At the same time, one should consider whether the earlier judgment was driven by the pleasure associated with an unconsidered certainty in your position, sometimes described as “not always right, but never in doubt.”).  If something has changed that should lead to a reassessment of the case, then take note of the perspiration running down your legs.  If not, then chalk it up to loss aversion and go try the case.

So what message of How We Decide should we keep in mind in making litigation decisions?  Pay attention to your emotions.  Don’t foolishly ignore what the subconscious brain is telling you, but likewise appreciate that your intuition might be mislead by loss aversion, negativity bias and other objectively unsupported drivers of decisions.  “Thanks to the prefrontal cortex, we can transcend our impulses and figure out which feelings are useful and which ones should be ignored.”  Id. at 115.

Neuroscience and Settlement Negotiations

      As trial lawyers we pretend that all our decisions — including if, when and how to settle a case — are rooted in logic.  We create decision trees, we research jury awards, we plumb the depths of our hard-won experience – and as a result we simply set emotion aside and give our clients the “right” advice.  Our clients in turn weigh our advice dispassionately and reach a sensible decision based upon even-handed balancing of pros and cons, risks and rewards. 

      Well, the human brain isn’t so simple.  It turns out that the emotional part of our brain has a simple, powerful flaw known as loss aversion.  As demonstrated by psychologists Kahneman and Tversky, and as described in Jonah Lehrer’s How We Decide, the pain of loss is twice as powerful as the pleasure of a gain.  Accordingly, low-yield bonds are popular because they seem a safe bet, even though over time stocks outperform bonds by a large margin.  “The fear of losses makes investors more willing to accept a measly rate of return.”  Similarly, investors are quicker to sell stocks that have increased in value, while stubbornly hanging on to those that are losers:  “selling shares that have decreased in value makes the loss tangible.  We try to postpone the pain for as long as possible; the result is only more losses.” 

            It turns out that loss aversion is part of a phenomenon known as negativity bias:  “bad is stronger than good.”  (see, eg., the current deluge of political campaign ads).   This proves out in experiments in which participants are presented with two mathematically identical risks, but their decisions change markedly depending on whether the alternatives are framed as possible gains versus possible losses

            For example, in part 1 you are given $50 and offered two choices: either you can take a gamble that gives you a 40% chance of keeping the $50 and a 60% chance of losing everything, or you can forego the gamble and automatically keep $20. 

            Now you play the game again, and while the first option is the same – taking a gamble with a 40% chance of keeping $50 and a 60% chance of losing everything.  The alternative option, the sure thing, changes only in its description from getting to keep $20 to having to lose $30.  (Yep, read it again – having to lose $30 out of $50 is precisely the same as getting to keep $20 out of $50). 

            So guess what our mind does to us?  Even though the two parts of the experiment present identical options from a mathematical perspective, when the choice is framed as gaining $20, 58% take the money and 42% pass on the 40% chance of keeping $50.  But when the choice is framed in terms of losing $30 (again, the same thing), now only 32% take the sure thing and 68% roll the dice!  How We Decide, 105-06. 

            Thus, in settlement negotiations, the clever bargainer will frame the other side’s choices in terms of what they will lose if they go forward versus what they can gain by settling now.  Those who don’t understand how their excited amygdala can mislead them will focus on the surge of emotion they feel when they anticipate the pain of loss, and then either pay more or take less than their reason would say they should. 

            How to avoid this trap?  See the next post.

Carolene Products Footnote 4, the “Ground Zero” Mosque And How We Decide

Seventy-two years ago Justice Stone authored an Opinion upholding Congressional power to declare certain foods adulterated and thus not to be shipped in interstate commerce. United States v. Carolene Products Co, 308 U.S. 144 (1938). In law’s most famous footnote, Justice Stone also cautioned that while this law was plainly valid, there were circumstances when the Court’s deference to political processes might be limited.

One such circumstance, he noted, could be legislation that failed to account for the interests of those without effective representation in the halls of government:

“whether prejudice against discrete and insular minorities
may be a special condition, which tends seriously to curtail
the operation of those political processes ordinarily to be relied
upon to protect minorities, and which may call for a correspondingly
more searching judicial inquiry.”

Louis Lusky: As Stone's clerk, he helped draft Carolene Products fn. 4

The footnote’s cautionary paragraphs did not focus on either the words or the intentions of those who drafted the Constitution, as some insist must be done. Instead, they focused on “the dynamics of government” and “plainly assume the existence of two national objectives – government by the people, and government for the whole people – and focus attention on the Court’s special ability to effectuate them.” Louis Lusky, By What Right? 109 (1975).

Against this background, let’s consider the debate over the construction of a 13-story Islamic Community Center and mosque about two blocks from the World Trade Center site. This center, originally named “Cordoba House” (intended to invoke the model of peaceful coexistence among Muslims, Jews and Christians in Cordoba, Spain during the 8th-11th centuries), renamed “Park51” (its street address), is widely referred to as the “Ground Zero Mosque.”

Polls report consistent majority support for the Muslim’s legal right to build their center where they wish. Some support the project, seeing it as a way to demonstrate respect and tolerance. Others contend its location insults the memory of those killed that day, “like bringing a pig into the Holy Temple,” or putting “a German cultural center on top of a death camp,” or building a “Japanese cultural center across from Pearl Harbor.”

I wonder about linking an entire religion to the acts of the 9.11 terrorists and equating the building of this center with an endorsement of the attacks. Yes the 9.11 murderers claimed to be acting in the name of their religion, but that no more justifies wholesale rejection of Islam than would David Koresh’s conduct in Waco justify wholesale rejection of Protestants. (Indeed a catalogue of acts done in the name of religion that we would all recognize as atrocities would not be brief).

How We Decide coverJonah Lehrer’s book, How We Decide, makes accessible to we lay people the insights neuroscience is gaining through the use of brain imaging technology. Lehrer’s point is that the assumption of rationality versus emotion is wrong – it’s not how the brain works. Rather, our decisions are a blend of passion and logic. The emotional brain combines with the prefrontal cortex and together they move us to action. Lehrer credits Aristotle with appreciating how the rational soul works with emotion “to make sure that emotions were intelligently applied to the real world.”

“Anyone can become angry – -that is easy,” Aristotle wrote.
“But to become angry with the right person, to the right
degree, at the right time, for the right purpose, and in
the right way – that is not easy.”

As Lehrer comments, “[t]hat requires some thought.”

It remains to be seen how the mosque issue will play out. But as we recognize the power that emotions quite understandably play in our group decision-making, perhaps neuroscience has confirmed the wisdom of Carolene Products’ approach. Thus, when we the people face difficult decisions in which emotions are powerfully stirred, the Court’s searching judicial inquiry can help ensure both government by the people and government for the whole people.