{"id":136,"date":"2014-03-03T16:22:39","date_gmt":"2014-03-03T21:22:39","guid":{"rendered":"http:\/\/appropriatedisputesolutions.com\/site\/?p=136"},"modified":"2014-03-03T16:24:40","modified_gmt":"2014-03-03T21:24:40","slug":"improving-your-judgment","status":"publish","type":"post","link":"https:\/\/appropriatedisputesolutions.com\/site\/improving-your-judgment\/","title":{"rendered":"Improving Your Judgment Like a Star Athlete Does"},"content":{"rendered":"

This was published in the first Law.Com Online Issue March 3, 2014 -and is here by permission:<\/p>\n

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By\u00a0\u00a0<\/a>Laura A. Kaster<\/a>,\u00a0Law.com Contributor<\/em><\/small>Published:\u00a0<\/strong>Feb 28, 2014<\/small><\/div>\n<\/div>\n<\/div>\n
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Improve Your Judgment Like a Star Athlete Does<\/h1>\n
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Andre Agassi was admitted to the Tennis Hall of Fame in 2011. He still has something special to teach lawyers about improving our judgment.<\/p>\n

Lawyers are in the business of selling judgment.\u00a0 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.\u00a0 However, we have a broader mission; we have obligations to share \u00a0the kind of advice and information clients need to make an informed decision about their course of action in their particular circumstances.\u00a0 This often includes economic issues and predictions of outcome. Comment 2 to Rule 2.1 of the ABA Rules of Ethics provides: \u00a0\u201dAdvice 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.\u201d<\/p>\n

Although the science of decision-making has been a focus for Nobel laureates, psychologists and economists and even popular literature (e.g., Kahnemann\u2019s\u00a0Thinking Fast and Slow<\/i>), now heightened by the advances in neuroscience, lawyers are seldom aware of the unconscious impediments to good judgment that they face.<\/p>\n

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.\u00a0\u00a0 It is a species of groupthink, defined by Irving L. Janis, \u201cGroupthink,\u201d Psychology Today 5:6 43-44, 46; 74-76 (November 1971), after his examination of the Bay of Pigs strategic decision-making failures.\u00a0 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\u00a0Monkey Business Illusion<\/a>.\u00a0 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.<\/p>\n

Andre Agassi knows something, whether intuitively or because of experience.\u00a0\u00a0 He knows that a key to improved judgment (and performance) is to put yourself in the other person\u2019s shoes.\u00a0 He did it almost literally.\u00a0 On January 16, 2014, New York Times sports reporter Greg Bishop wrote in \u201cSeeking a Bigger Sweet Spot . ..\u201d that Roger Federer was going for a larger tennis racket despite his long commitment to a smaller \u201cmagic wand.\u201d\u00a0 But what fascinated me was a paragraph on Agassi, who \u201ctook the unusual step of buying rackets used by other top players and practicing with them.\u201d\u00a0 The article notes that he did this not because he was considering a new racket but to \u201cto see how certain rackets worked and ascertain which shots his best opponents could hit easily and which shots they could not.\u00a0 He could essentially scout Federer by using Federer\u2019s racket in practice.\u201d\u00a0 Agassi knew one way to understand the other side was to assume its position.<\/p>\n

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.\u00a0 He said, tell them to put themselves in their opponents\u2019 position and try to see things through their eyes.\u00a0 Daniel Kahneman recommends a pre-mortem, essentially a mind game in which you envision failure and dissect the reasons that caused that result \u2013 again an effort to change perspective.\u00a0 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.\u00a0 Mediators too can help serve this perspective shifting function.<\/p>\n

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.<\/p>\n

 <\/p>\n<\/div>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

Andre Agassi has something to teach us about improving our judgment – we need to put ourselves in other peoples’ gym shoes.<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","footnotes":""},"categories":[4],"tags":[23,8,9,10,11],"class_list":["post-136","post","type-post","status-publish","format-standard","hentry","category-mediation","tag-cognition","tag-decision-making","tag-judgment","tag-mediation-2","tag-settlement"],"aioseo_notices":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p6qGtQ-2c","jetpack-related-posts":[{"id":27,"url":"https:\/\/appropriatedisputesolutions.com\/site\/judgment-valuing-your-case-for-mediation\/","url_meta":{"origin":136,"position":0},"title":"Judgment \u2013 Valuing your case for mediation","author":"lakaster","date":"September 23, 2012","format":false,"excerpt":"If there were a blue book value for cases, it is likely that parties could reach a zone of probable agreement in mediations. 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Janine Dickey New\u00a0Jersey\u00a0Law\u00a0Journal March 14, 2013 The Civil Presumptive Mediation Program, part of the\u00a0New\u00a0Jersey\u00a0court-annexed Complementary Dispute Resolution program (CDR), has been the subject of re-examination and rule change and hopefully\u2026","rel":"","context":"Similar post","block_context":{"text":"Similar post","link":""},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":32,"url":"https:\/\/appropriatedisputesolutions.com\/site\/nj-mediation-confidentiality\/","url_meta":{"origin":136,"position":4},"title":"NJ Mediation Confidentiality","author":"lakaster","date":"August 11, 2011","format":false,"excerpt":"New Jersey has an important new case that mediators and advocates in mediation should be aware of: Willingboro Mall Ltd. v. 240\/242 Franklin Avenue Associates LLC , A-4589-09. 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