Monday, January 31, 2011

Bias Blind Spot

This is an excellent article on how we are blind to our own biases.

This is a great article on how we are blind to our own biases. Those interested in how jurors have difficulty recognizing their own blind spots and biases will find this article useful. I am always fascinated with how jurors live their lives with their experiencing selves but when jurors judge plaintiffs they do it with their remembering selves. Jurors do not search their memory for how they actually experienced something such as an interaction with a doctor but instead call upon their remembering self and not surprisingly recall, with the benefit of hindsight, the ideal behavior that would have prevented the harm . Thus, jurors remember themselves as super rational actors ( e.g super patients, super drivers and super consumers) when in truth many jurors have behaved just like the plaintiff. That is why focusing the jurors on the plaintiff's conduct too early in opening may increase the temptation to be super critical of plaintiff. So what can we do about this psychological conundrum. One suggestion is to remind jurors in closing that the plaintiff behaved like most people would actually behave in these circumstances, but this may too late to overcome the problem. Creating, unconsciously, a bond between plaintiff and jurors using bonding and attachment metaphors during the plaintiff's direct may help. Still, the best solution has to be to show that the defendant acted to serve his own interest knowing it created a risk of harm to others, including plaintiff. I am really interested in how others handle this problem. Psychologists have referred to this as naive realism --- jurors act as if they always act as reasonable as necessary to prevent harm to themselves. Any thoughts? D

The McDonalds Case

Monday, January 3, 2011

Reflections of A Wise Trial Lawyer


Trial December 2008, Volume 44, No. 12

A bridge for troubled lawyers

David R. Bossart

Our efforts on behalf of our clients take a toll on us and our lives. Some of us are affected more than others. The effects may not be pleasant, nor are they easy to talk about. Nevertheless, just as we help jurors realize the harm a defendant has inflicted on our clients, we must acknowledge that many lawyers suffer personally in the process.

The truth is that lawyers suffer from depression, anxiety, anger, and frustration from constantly being attacked on all fronts, sometimes even facing distrust from their own clients. Researchers affiliated with Johns Hopkins University found statistically significant elevations of major depressive disorder (MDD) in only three of 104 occupations: lawyers, pre-kindergarten and special-education teachers, and secretaries. Lawyers topped the list, suffering from MDD at a rate 3.6 times higher than nonlawyers who shared their key socio-demographic traits.1

Lawyers also suffer from alcoholism and use illegal drugs at rates far higher than nonlawyers. One out of three lawyers suffers from clinical depression, alcoholism, or drug abuse. Some studies indicate that lawyers commit suicide and think about committing suicide more often than nonlawyers.2

These problems are real, not fictional. Denying them is a temporary solution to a potentially permanent problem. Not talking about them is like trying a case and not dealing with the potential land mines that every case has. We confront problems in our cases, and we must face them in our lives and profession.

The goal is to identify these problems in ourselves and others before they have serious or deadly consequences. The cumulative fallout of lawyers suffering from depression, alcoholism, drug addiction, burnout, or severe stress cannot be denied or ignored.

These effects, if not recognized and dealt with, can eventually lead to serious ethical problems and even disbarment. It is important to face the facts and listen to those around us who tell us when they see that we are in trouble.

For me, the problem was alcoholism. Before my recovery, my wife often heard me say: “You would drink, too, if you had the stress I have to deal with in my work. You have no idea what pressure I have on me: money, the partners, the clients. The pressure is enormous. Leave me alone.”

Sound familiar?

It has been 32 years since alcohol was a problem in my life, and thanks to the help of family members, friends, and professional counselors, I now have a life that is rewarding beyond measure. Of course, I still have problems and work-stress issues. However, I have avoided the serious problems that would have eventually occurred had I done nothing to interrupt my negative pattern of living.

I believe that what causes our problems is not as important as what we do to respond to them. For example, I cannot control the public’s negative perception of lawyers. I can, however, learn healthy and effective ways to respond to negative criticism.

The point is to take action and admit to having a problem, not to ignore it until it is too late and your job, marriage, and family are lost. Don’t wait until it’s too late to act. Don’t be like the person who jumps out of the 20th-story window of a building, sails past the 16th floor, and says, “Everything’s going great so far!”

Getting it in the open

While there are many resources available to a troubled lawyer’s family members, friends, and coworkers who want to help, it is often difficult for them to bring the subject up with the lawyer. Some may hesitate because they don’t want to hurt the lawyer’s feelings; others might worry that they would be inappropriately sitting in judgment of another person.

The “elephant in the room” too often is simply ignored. Friends and loved ones watch the problem get worse and hope it will go away, but it rarely does. Usually, it gets worse.

Would you ignore a medical condition until you couldn’t function because of the pain? If you mentioned to a lawyer in your firm that a mole on his face was getting bigger and darker and he said, “Don’t worry about it, it’s my problem and I will deal with it myself,” would you stand by and watch it grow without at least trying to get him in to see a doctor? I hope not.

The same should be true when you suspect someone you know is unhappy, depressed, drinking too much, and not functioning to his or her full potential.

I have come to believe there are two “great truths” about these situations. The first is that lawyers who are experiencing serious difficulty in their lives rarely realize it. We have probably all heard the common saying that we are “blind to ourselves.”

To illustrate, imagine you are in a picture on the wall. Looking out from the frame, you cannot see yourself in the picture. But other people looking at the picture have a clear view of it. They can see you in ways that you cannot.

It is not until you figuratively step out of the picture and take a serious, honest look at yourself and what is going on in your life that you can make meaningful changes. We need to remember that it is not change but our resistance to it that is so hard.

Yes, our work is stressful. But that is never going to change. We have to change the way we react and deal with our work and the problems that come with it.

The second great truth is that it is extremely difficult to make meaningful changes in your life without help. Lawyers tend to believe they can solve any problem. We are omnipotent, aren’t we?

Our egos are a huge hurdle for many of us, and it often is hard to admit that we need help from others. Humility may not be one of the greatest virtues of a good trial lawyer, but it should be.

Seeking help

I have never learned a thing from success. You can’t teach me when I am on top of the mountain. The only way I can learn is through adversity and loss. When I have been brought to my knees in life or work, I can recognize that I am limited and need help.

There is a lot of help out there. Getting informed and getting in touch with people who know what to do is the first task.

Many state bar associations have resources that lawyers and their families can turn to for help. The ABA posts a list at

The Internet is no substitute for looking for help in your own community. Many effective recovery programs help people live happier lives. If you sense there is something wrong in your life but can’t put your finger on it, there is help for you.

Maybe you should be happy—you have all the trappings of a successful life—but you still feel empty as a human being. They are not called “trappings” for nothing. That’s just what they are—things that trap us into thinking they are life-fulfilling.

What fulfills us is not what the world tells us is important, but living a life healthy in mind, body, and spirit and making a difference in the lives of the people around us.

Don’t get me wrong. I am not against having money or the things that come with financial success, but counting on material things will not bring the fulfillment that a meaningful life can bring. And we can only achieve fulfillment by starting the process of honestly looking into what it would take to make our lives better.

If you or someone you know needs help, numerous recovery programs, treatment programs, psychologists, and other counselors are available to help. Don’t wait another day.

David R. Bossart practices law in Fargo, North Dakota. He dedicates this article to the memory of two wonderful lawyers, Luke Terhaar, who died of alcoholism 16 years ago at age 31, and Ken Olson, who died by his own hand due to alcoholism and depression at age 55. © 2008, David R. Bossart.

How We Decide

Behavioral Economics

The Rational Consumer

How reliable are economic models that depend on economic actors to act in their own best interest? I just watched the Nova documentary, Mind Over Money which displays various theories of economics as modelled by mathematical equations that expect us all to act in our own best interest or those who think emotions and behavior cause us to act irrationally.
They talk to Robert Shiller a Yale economist who it could be said predicted both the tech stock crash and the housing market crash as speculative bubbles. He argues against the rational consumer theory, stating that bubbles are not based on self interest. He talks about the "Tulip Mania" in the Netherlands in the 17th century, widely believed to be the first speculative bubble of which there are records. Tulips were relatively new and not unlike today they were trading tulip futures as well as actual tulip bulbs. At the peak, some of the most expensive tulip brands were selling a single bulb for 12 times the yearly income of a typical skilled craftsmen. While many attributed this bubble to crowd irrationality and use it as an example of behavioral economics (as does Shiller) many others try to draw rational explanations from this event. I still found it interesting that there could be such speculation on something that seemed to have very little intrinsic value whatsoever. But then, in the documentary they show that in studies even when "traders" are told a commodity has no value and will be completely without value at the end of they experiment they tend to take risks and buy creating a bubble and ending up busted in the end.
It's an interesting documentary, though I think Nova pushes the behavioral model a little too much. Though I agree and think it's folly to think that as a mass people will always act in their own self interest. The fact that people were willing to pay up to $600,000 for a three bedroom home a few years ago and now because they are underwater, but can still afford the payments, they often choose to walk away from their mortgage. If they kept paying they'd likely have some decent equity in their home. And hanging on to the home they can probably expect its price to eventually rise over time. But as is typical, we discount the future and make decisions that appear to be only in our immediate best interest. The immediate value of the home, and the immediate consequence of mortgage payments are more important than a forclosure on our financial records or lost equity or downpayment. The difficulty of obtaining equity in the future is discounted and the advantage of walking away now is considered more important.
Documentaries like this always make me worry about the stock market which I invest in, but secretly worry is some house of cards built on nothing. I worry about the price of homes as well as other bubbles and the stagnant wages of American workers right now. But at least you can live in a house. You can't live in a tulip.