Month: May 2021

Imagine you outline to your client the possibilities of two court actions where he is the plaintiff in one case and the defendant in another. Legal fees are no longer a cost consideration. In the first case, you advise that he could settle and receive $70,000 or have a 90% chance of the court awarding him $80,000. In the second case, you advise that he could settle and pay $70,000 or have a 90% chance of the court deciding he should pay $80,000.  If he was like most people, in the first case he would settle for the $70,000. In second case he would likely go to court and risk paying $80,000. People prefer sure things when it comes to gains, and take risks when it comes to avoiding losses.

This simple example captures a substantial portion of Kahneman’s book Thinking: Fast and Slow in addition to Thaler’s book, Nudge. Kahneman and Thaler separately won the Nobel Prize for work in their respective fields. The Obama administration successfully incorporated the concept of ‘nudges’ into their policy work. These theories on behavioral economics can contribute substantially towards the practice of law and the attraction and retention of clients.

Kahneman separates our thought process into a simple dichotomy of System 1 thinking, fast, and System 2 thinking, slow.

System 1 thinking explains why people feel losses twice as much as they feel comparable gains. Fast thinking comes into play when you stand up to object to a line of questioning without knowing why, when you sense a brief misses something, or when you believe that there really is a tiger outlined in the grass just ahead. Regardless of your personal circumstances, fast thinking comes in handy to avoid being eaten. Figuratively or literally.

Fast thinking includes intuition. Although, thinking with your gut can be dismissed as superficial, Kahneman recognizes that experts glancing at a situation can reach a correct conclusion simply based on continuous experience.

Intuitive thinking guides the halo effect. Someone’s reputation, and ego, could proceed them. Or exceed them. This may give this person an aura of invincibility in that they have won so often they will likely win again. If you, or a court, provides that person the benefit of doubt, a halo so to speak, then you should dissuade yourself of this notion. Rest assured, the rest of the day has not yet been written. Anything can and will likely happen.

Information immediately available primes system 1 thinking and feeds into the ‘anchoring’ concept. Kahneman provides the example of a panel of German judges asked to roll a weighted die that came up with three or nine. The judges were then asked to provide a ruling on a certain fact situation. Although it should not have mattered, judges rolling a nine more often gave higher sentences that the judges that rolled a three.

System 2, slow thinking represents the traditional lawyer mind; collecting facts, analyzing those facts, and providing a researched opinion.  Relative to fast thinking, slow thinking generally has to be dragged into the thought process if the mind feels that fast thinking ‘has got this covered’. Slow thinking eats Doritos while watching TV. I prefer the term ‘critical thinking’ as slow thinking suggests something negative.

Understanding how prospective clients think can impact how you market anything. Imagine yourself a prospective client landing on your firm’s website. The website asks if you want to allow cookies in order to enhance your website experience. Being like most people, you sort of realize that cookies attach to your browser benignly. But you read something about them somewhere and your overall impression leans towards not allowing cookies. You congratulate yourself on being prudent, but your web experience becomes muted. The firm suffers an opportunity cost.

Continuing your search, you land on another site that clearly, but not alarmingly, states that a small piece of code, a cookie shall be added to your web browser. Once again, you don’t know anything more about cookies than you did five minutes ago, but you proceed regardless. Your web experience becomes far more customized, and the law firm discovers substantial information on future clients’ interests.

Most clients intuitively refuse to accept cookies given the choice. The critical part of the mind would not examine the situation since there did not appear to be an immediate need. A client merely advised of cookie use would likely proceed, confident in the notion that someone vetted the cookie usage for them. The concept of providing a default cookie option nudges the client into a better result.

One would think that providing a range of options provides greater satisfaction than fewer options. However, Thaler says that having too many options leads to greater stress and reduced satisfaction. Therefore, providing a default option increases the probability that a correct choice is being made.

Thaler euphemistically refers to this as libertarian paternalism. People make better decisions by the correct arrangement of choices. The person in charge of this arrangement becomes the choice architect.

A business owner becomes a choice architect in numerous ways. In speaking with a client and laying out their options, the phrasing of options definitely impacts the client’s choice. Although business owners may feel that they want to leave the choice of options strictly to the client, one should determine what level of guidance the client requires. Normally they would want your best recommendation.

Thaler parses apart the various tools that a choice architect has into five main aspects: Incentives, mapping, defaults, feedback, expect errors and structuring complex choices. For example data visualization and mnemonics of legal information can illustrate the difference between complex choices. In retaining clients, understanding the process behind making decision choices increases your value proposition defined as the benefits relative to the costs. By making the correct choice easier, you have channeled your client to the correct choice. You have reduced not so much the monetary cost to the client, but the stress cost of making that decision.

In making an intuitive choice, clients want to know what other people did in similar situations. Thaler found that a need to conform easily influences peoples’ choices. Clients could operate on this basis to decide how to proceed on a case for example. They would rely more on what friends and other people have done in a similar situation. Therein lies the importance of stories. Relating other individual’s stories can add additional comfort to clients and make the decision easier. Adding stories to your advice makes a client’s choice easier.

To demonstrate this, Thaler identifies greater compliance in hotels where people are advised the guests before them selected the economical option of not insisting upon having towels replaced daily. People like to be part of the crowd as this makes their decision making easier. Your firm stories should reflect how generally others have proceeded.

These innovative concepts require greater examination and incorporation into today’s business practice particularly in cases where they might operate to your client’s detriment.

Did you feel the nudge?

Have you ever thought back on wonder how you survived this long?

As the saying goes, there are bold pilots and there are old pilots, but there are no old bold pilots.

I think my earliest memory at 8 was one of those bottle rockets. You fill this plastic projectile with water and then pump it full of air. Making this sharp plastic rocket into bottled death.

My friend was busy pumping up one of these plastic death dealers when I noticed that he was pointing it right at me. Thinking this was not particularly safe, I fell to the side to lie on the grass. It was at that instant the rocket let go and basically grazed my face.

At about 10 my parents got me one of those BB guns. I built a little shooting gallery in the basement. I thought it would be cool to use those little metal hockey players from the hockey games they used to sell. Shooting them down I was Zabata. I was the Rifleman. A BB hit the metal player and ricocheted right back to just below my eye. No, instead I was Ralphie from Christmas Story.

I am beginning to think my parents were out to get me by enabling my various destructive tendancies.

My dear mother was kind enough to accompany me to the pharmacy. She asked for a few ounces of potassium nitrate, saltpeter. The major ingredient to gunpower. The pharmacist was astute enough to ask her as to why, and she simply responded that I wanted to conduct experiments. Which was true of course. He simply admonished her slightly that my intent was to make gunpowder. That was the experiment. That didn’t stop her. Or me of course. And this was 50 years ago. Kinder gentler more trusting times back then.

I didn’t have the internet. But I did have all 32 volumes of the Encyclopedia Britannica. Plus the maps and the index. All the world’s knowledge.

Flash forward a few years, then we have the teenage driving years. Got through that without a speeding ticket. I went through two transmissions however. And I went through, partially, one garage wall.

Not surprising, a lot of people are injured when skiing. When I was still in my late teens I went skiing through the forest. I careened towards an tree and managed to drive both my arms forward to force myself to merely shoulder check a tree at highspeed.

You think I would learned a bit better.

After attending a conference I went hiking in the mountains above the tree line. No water. No confirming with other people where I was going. But I struggled through this broken slate type of ridge. One side of the hill faced the lodge where a sharp eyed conference attendee might point out what that idiot, me, was doing. But if I fell on the other side, on the dark side so to speak, I doubt anyone would notice my absence till later the following day. I think some would notice my presence. But unfortunately those would have been the cougars. And not the figurative ones.

A few years later, again after a meeting, I drove up to the side of one of forest covered mountains and followed a cascading stream. As I worked my way, I had to cross the stream a few times. And it was deep and fast enough that if I fell in, it would have had its way with me. Meaning banging me around for about ten feet before bouncing me hard against one of the many boulders. Once, without notifying anyone, they would have started looking for me the following day. And there was the signage of course.

Keep watch for cougars.