New paradigms for lawyers

When I was growing up and wanting to be a lawyer, then in law school, and later in practice, I would look to older and more experienced lawyers for advice. Some of the advice was consistent, some of it contradictory, but mostly it was a hodgepodge of tips that had been passed down from time immemorial. Very rarely do we as lawyers look to the underlying belief systems that these tips or common wisdom spring from. In this blog I want to begin by addressing some of the basic structures that we as lawyers operate out of, without being aware that we are doing so. One of my favorite quotes is from John Maynard Keyens who said that, "Those who say they do not believe in economics are but a slave to some long defunct economist." I think a corollary to that statement is that those who do not believe in philosophy are but a slave to some long defunct philosopher.

The first belief system I would like to address is that people make decisions based on reason and evidence. This is a bedrock belief that we lawyers are slaves to, even if we consider ourselves sophisticated post-modernists. I am reading a book called The Believing Brain, by Michael Shermer. He articulates how people create models of the world and then force the facts to fit their predetermined beliefs. Instead of starting out with a blank slate and then trying to find out what the answer is by amassing facts, then logically following the facts to find the answer, his premise is that people for the most part begin with the answer and then work backwards to justify their already existing beliefs. This has huge implications for all aspects of a trial lawyer's practice. The most obvious one is voir dire in which the goal now becomes getting rid of people who have beliefs which are inconsistent with a win for your side as opposed to trying to logically persuade a group of people to go your way. In witness preparation you can now see where your client is coming from instead of being frustrated that they are not being "logical." Having a facility with how human beings form beliefs, and then how those beliefs in turn form their actions, allows you to get to the core of the issue, instead of engaging in a frustrating argument with your client.

I will continue this exploration in future blogs.

-Robert