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.