Every experienced trial lawyer knows that we have a lot to learn from the ever-expanding fields of psychology and neuroscience. This was the topic of a day-long seminar I was recently privileged to attend in Montréal at the annual convention of the American Association for Justice.
The program focused on what injury attorneys can borrow from the research of Daniel Kahneman, a Nobel Prize winner in economics. As Kahneman writes in his 2011 book, Thinking, Fast and Slow, the human brain relies on two very different types of thinking: “System 1” (fast thinking) and “System 2” (slow thinking).
At the AAJ convention, attorney Michael Koskoff explained that we spend most of our time in System 1. This is fast, easy, instinctual thinking. If you are familiar with Don Keenan’s and David Ball’s Reptile, System 1 is the type of thinking that generates reptilian responses about our shared need to live in a safe world. Our System 1 worldview is what feels normal to us.
When we actually have to work to understand something – like black holes, investment credit default swaps or Donald Trump’s hair – we turn to System 2 thinking.
When we’re using System 1 thinking, it’s so easy that we basically don’t think at all; we are in a state of “cognitive ease.” But thinking slow in System 2 literally can make your head hurt, causing “cognitive strain.”
According to Kahneman, when people are cruising along in System 1 mode, they are more at ease, happier and more generous. But when you force people to spend too much time in System 2, they get cranky and stingy.
This has obvious implications for a mesothelioma lawyer with the job of explaining difficult concepts to a jury. We have to understand our case so well that we can tell the story of the defendant’s wrongdoing in a simple way that won’t give the jurors a headache. And from my point of view, the same applies for the way we present things pretrial to the judge. After all, if judges were persuaded by logic alone, we would not have the number of predictable 5-4 opinions that we do from the Supreme Court.
How do we communicate in System 1 mode? Koskoff offered the following tips:
- Use simple language.
- Keep sentences short.
- Don’t cram in too much information in one paragraph, page, or exhibit.
- Don’t overwhelm the jury or the judge with more law, facts or flourish than you need to make your point.
- Repeat what’s important enough times that it’s more likely to become “normal” System 1 thinking.
This was, of course, only the beginning of the discussion from the recent AAJ convention. And it highlights why it’s important to me as a personal injury lawyer to be part of AAJ’s Leaders’ Forum.