From the desk of Brian Hammer, founder
Deciding Factors
First—and apology. A technical glitch in December meant that most people didn't receive this edition. If you're receiving it for a second time, this should be the only time you get a duplicate.
This edition of our newsletter focuses on decision-making, looking at how lawyers can expand their persuasive influence by understanding the logical and emotional factors that go into making a choice.
A lawyer attending our new course Hindsight, Foresight and Insight commented that I was obviously passionate about the material and asked me why. I had never been asked this question before, though the answer was clear—because I have incorporated these influence- and decision-making skills into my life and they work! And the quality of my life has improved dramatically as a result, both professionally and personally.
It's true that the material we present in our courses, while based in academics, is not academic to me. I have seen the quality of my relationships, decisions and influence deepen as my success and fulfillment have increased.
Decision-Making isn't Purely Logical
There are countless times in a day that you try to influence other people's decisions. Whether to hire you, pay you, rule in your favor or agree with your position, your success depends on getting them to "have it your way." By better understanding the decision-making process, we can play a greater role in affecting those choices.
Decision-making isn't purely logical. Modern neuroscience has confirmed that almost everyone relies on the negotiation between two separate tracks of brain processing when making decisions. Read More
Enlightening Reads
Rage and Status
Randolph Roth's new book American Homicide gives us some dramatic historical data about the emotional component of decision-making. Roth argues that changes in homicide rates correlate with changes in people's feelings about government and society, and their status relative to it. In a review of Roth's book, Newsweek columnist Raina Kelley writes
Roth argues that how we see ourselves in relation to our government…is at the heart of many decisions to take another life…If an individual feels secure in his social standing, it's easier to get over life's disappointments. But for a person who feels alienated from the American Dream, the tiniest offense can provoke a murderous rage.
Although with far less consequence, think about the equivalent in the practice of law. Read More
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The Forecast Calls for Happiness
It's about happiness. Always. When we strive to manage risk, it's usually because we believe we'll be happier with less risk in our lives. When we take a chance, it's because we believe the results will pay off—in happiness. Even when we go for the money, it's because we believe the money is going to reduce anxiety, provide stability, compensate us adequately, or provide some other reward. The currency we're really dealing in is not money though, it's Happiness.
Our tendency to predict an emotional outcome and tie it to the occurrence (or non-occurrence) of an event is Affective Forecasting. And while we all define happiness differently, studies have shown we all share in the inability to accurately predict what will make us happy, and for how long. Read More
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Decision-Making isn't Purely Logical
The first track of brain processing is the conscious, logical and rational brain. Here we weigh factors, formulate goals and do our best to act rationally. The second is pathos or emotionally-based, and occurs unconsciously.
Though philosophers from Plato to Freud sought to discount and repress the influence of emotions in making decisions, modern science confirms that over 99% of decisions are heavily influenced by this unconscious process. Sometimes called the "Reptilian Brain," this process was adapted to keep us alive. Our unconscious brain is constantly predicting the outcomes of our choices, giving us a feeling of attraction if there is an expectation of reward or pleasure, and a repulsion if punishment or pain is predicted. The outcomes of this unconscious process become our instincts, intuitions and gut feelings.
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Law school trains us to appeal to the logical brain, to marshal facts and compose compelling arguments. In fact, we present such compelling arguments that only an idiot wouldn't do what we are asking them to do. And then they don't do it, leaving us to come to the obvious conclusion about them. But maybe we've missed an opportunity for different approach—maybe it's not them and we have simply failed to influence their emotional brain.
The unconscious feelings of the emotional brain color our interpretations of logical argument and the people who present it. I have heard from many judges that despite logical argument, juries tend to find for the lawyer they like. There are exceptions, and some lawyers effectively persuade by intimidation. Our logic will, however, most often fall on deaf ears unless they have a good feeling about us.
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Although the conscious, rational brain is indispensable to the lawyer's competent job performance, the most persuasive lawyers make an attempt to affect both aspects of decision-making. They listen with undivided attention, empathize, help when they are able, and endeavor to build positive relationships with others. While this is mostly fulfilling in and of itself, it also pays high dividends when we seek to influence their decisions. For more information about influencing the two tracks of the decision-making process, take a look at How We Decide (Jonah Lehrer), Blink (Malcolm Gladwell) or for an in-depth application for lawyers, check out our new course Hindsight, Foresight and Insight.
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Rage and Status
Have you ever felt patronized by another lawyer's argument—and shot back an angry retort or murderous stare? Has anyone ever positioned their argument as the only way to resolve a matter, subtly disenfranchising you from a co-created resolution? Does that make you feel diminished—and frustrated enough to kill a deal?
Many lawyers unconsciously and consistently assume a "high status" relative to those they attempt to persuade. They might speak as all-knowing authorities, use polarizing tactics, cut people off mid-sentence, dismiss their ideas, and take other aggressive positions. The most persuasive know how to fluidly navigate status relationships, seamlessly alternating between assuming higher status, and elevating the status of others, depending on the situation. They know that their success depends on elevating those they seek to influence so that those individuals feel represented, respected, included, and empowered. If you're interested in understanding more about "status" in a legal context, we examine it more fully in our new course "Getting to Yes, and&hellip" Kelley's full article is available on
Newsweek
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The Forecast Calls for Happiness
Daniel Gilbert, a Psychologist at Harvard University, defines our inability to accurately predict the pleasure or pain something will bring as the "Impact Bias." A new car may make us happy, but not as happy as we thought, and not for as long as we believed. Conversely, the loss of a limb will surely be a negative experience, but our predictions that we won't adapt are shown to be wrong and exaggerated.
One effective tool for reducing the Impact Bias in Affective Forecasting is to present the decision-maker with information that specifically addresses the concern. For example, in one study, Gilbert asked participants how they predicted they would feel if they were given negative personality feedback. Mostly they predicted they would feel terrible. They were able to correct their prediction when they were shown that others who were given negative feedback actually felt OK. They used that information to logically update their forecasting and more accurately predict their resulting emotional experience.
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In the practice of law, presenting the results of past experiences may help your clients more accurately assess the experience they believe lies ahead of them. Not only will it reduce their anxiety in the moment, but it will also assist them in making smart choices. Your ability to recognize this aspect of their decision-making and willingness to build it into your role as advisor will prove priceless in building relationships.
Putting it Into Practice: Consider the decision-making process your clients go through regarding your advice. While they may be quite rational in their thinking, there is a cost to you if they are exaggerating the potential negative or positive effects they will experience based on following your advice.
You can help your clients analyze the results their choices will yield by first understanding your own tendencies toward exaggeration. Then devote substantial time with clients to make sure they are accurately assessing their options. In focusing not on the choices but on the anticipated outcome, you can lessen the Impact Bias, and more effectively manage expectations.
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