“Putting your best brain forward”: Think slowly, and let clients do the same
This is the one of seven strategies that you can follow to help you apply the emerging lessons of neuroscience and evolutionary psychology to the day-to-day work of your practice, as explained in the article Putting your best brain forward: How neuroscience awareness and evolutionary psychology can help lawyers avoid claims and offer better client service
Heavy workload combined with emotional arousal – for example, feeling pressured by a client or bullied by an opponent – have the potential to derail clear thinking. To ensure that we are making the best decisions possible, says Jones, “it helps to be aware of how many decisions we are making, at what time of day, and under what conditions.”
Both stress and fatigue tend to make our choices more conservative, and making too many decisions too quickly risks pushing important decisions down to our sub-rational System 1 processes. To avoid mistakes, it is important to allow sufficient time for decision-making, and to do so at a time when our brains can handle the work. If a task requires problem-solving or creativity, for example, a lawyer should reserve it for a time when the brain has plenty of available energy. For many, says Jones, it can be helpful to heed common advice: “as soon as you arrive at work in the morning, complete the hardest task on your schedule” (that is, if you can keep your biases from convincing you that some other task is more important).
The opportunity to apply slow thinking can be even more important for clients, who may be unfamiliar with legal concepts and the legal process. Says Boutet, “I always ask a client, what’s the best time of the day and the best day of the week for a meeting?” To ensure that clients make good decisions, Boutet also schedules multiple negotiation meetings instead of a single long meeting so that the client has appropriate time between meetings to reflect on the options.
A problem that has sometimes caused claims against family lawyers is settler’s remorse. In some cases, clients who have sought to repudiate settlements have alleged either having been pressured into settling by a lawyer, or not having been provided with sufficient information prior to making a decision. Boutet believes that an understanding of neuroscience can help prevent settler’s remorse.
“Clients sometimes regret decisions when they feel they have been rushed. Breaking up a negotiation into multiple sessions can allow the client to move gradually in the direction of agreement, which can help them to solidly endorse what they are signing.” Boutet notes, however, that some clients will still make agreements they later regret in an effort to get themselves out of a high-conflict situation. Where the lawyer observes that a client may be doing this, it can be useful to leave the negotiation with an agreement in principle in place, and to wait a few days before concluding a binding settlement.
Here is the list of all seven strategies to “put your best brain forward”:
- Think slowly, and let your clients do the same
- Lay a solid foundation for routine decisions
- Consult with others
- Check your biases
- Nourish your brain
- Reflect on your clients’ psychology
- Strive for self-awareness