This was published in the first Law.Com Online Issue March 3, 2014 -and is here by permission:
Improve Your Judgment Like a Star Athlete Does
Andre Agassi was admitted to the Tennis Hall of Fame in 2011. He still has something special to teach lawyers about improving our judgment.
Lawyers are in the business of selling judgment. The focus of our training is the law so that we can understand it and inform our clients on its dictates or consequences for a project or problem that they face. However, we have a broader mission; we have obligations to share the kind of advice and information clients need to make an informed decision about their course of action in their particular circumstances. This often includes economic issues and predictions of outcome. Comment 2 to Rule 2.1 of the ABA Rules of Ethics provides: ”Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate.”
Although the science of decision-making has been a focus for Nobel laureates, psychologists and economists and even popular literature (e.g., Kahnemann’s Thinking Fast and Slow), now heightened by the advances in neuroscience, lawyers are seldom aware of the unconscious impediments to good judgment that they face.
Because of the very relationship that gives rise to our work, the client-lawyer relationship, we start with an unconscious cognitive bias that I call client-think. It is a species of groupthink, defined by Irving L. Janis, “Groupthink,” Psychology Today 5:6 43-44, 46; 74-76 (November 1971), after his examination of the Bay of Pigs strategic decision-making failures. Knowing the outcome our clients want and also suffering from a constellation of other particular unconscious influences endemic to our profession (See L.Kaster, Improving Lawyer Judgment by Reducing the Impact of Client-Think, Dispute Resolution Journal, vol. 67, no. 1 (Feb.-April 2012)), we examine evidence looking for supportive information, which leads to inattention blindness made famous by Christopher Chabris and Dan Simons in the Monkey Business Illusion. Inattention blindness causes us to miss evidence and information that may be critical to the ultimate result and that if known would have influenced our approach or strategic thinking and advice.
Andre Agassi knows something, whether intuitively or because of experience. He knows that a key to improved judgment (and performance) is to put yourself in the other person’s shoes. He did it almost literally. On January 16, 2014, New York Times sports reporter Greg Bishop wrote in “Seeking a Bigger Sweet Spot . ..” that Roger Federer was going for a larger tennis racket despite his long commitment to a smaller “magic wand.” But what fascinated me was a paragraph on Agassi, who “took the unusual step of buying rackets used by other top players and practicing with them.” The article notes that he did this not because he was considering a new racket but to “to see how certain rackets worked and ascertain which shots his best opponents could hit easily and which shots they could not. He could essentially scout Federer by using Federer’s racket in practice.” Agassi knew one way to understand the other side was to assume its position.
I asked Gerd Gigerenzer the leading German authority on decision-making if there was a single piece of advice to lawyers who wanted to improve their judgment. He said, tell them to put themselves in their opponents’ position and try to see things through their eyes. Daniel Kahneman recommends a pre-mortem, essentially a mind game in which you envision failure and dissect the reasons that caused that result – again an effort to change perspective. Assigning a member of our legal team, ourselves, or our client to assume the role and perspective of the opposition is one of the best ways to improve our judgment. Mediators too can help serve this perspective shifting function.
Nothing can be more important to our professional skills than learning how to improve the judgment we provide our clients; it is worth study, practice, and a change in perspective.