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Washington Lawyer

Legal Spectator: Not So Fast With the Numbers

From Washington Lawyer, April 2012

By Jacob A. Stein

Legal Spectator

Let me tell you of a bad day I had in court long ago. I discovered I had the wrong file with me. It did not have the pleading I needed to hand up to the judge. When I returned to my office, I made up my mind that this must never happen again. Three months later, it happened again.

I sought help from an older, experienced lawyer concerning my problem. He said: “All of us who try cases, lose cases. In all of us there is a person who does not like to lose. That person wants to protect us. That person thinks we should be doing something else rather than trying cases. That person believes that if the mistake is committed often enough, we will stop going to court. We will be protected from the painful words Guilty as Charged.”

He added: “Before going to court, you should have an associate place the right file in the right briefcase. It works.”

This came to mind when I read Daniel Kahneman’s new best–seller Thinking, Fast and Slow. Mr. Kahneman has many honors, including a Nobel Prize in Economic Sciences.

He says that we not only have a one-person mind, we have a two–person mind. One is the fast thinker. The other’s the slow thinker. He labels the fast thinker as System 1. He labels the slow thinker as System 2.

The fast thinker, System 1, relies on proverbial wisdom, the things we learned growing up, and the belief that what happened in the past will happen in the future. It is intuition. It is emotional. It is our inheritance from the million years when we were back in the jungle and we had to steal food and run from the wolves.

System 2 is different. It is slower, it is deliberate, it is balanced. We are judge and jury. We gather up all the relevant facts. We make ourselves experts on who we are.

When such question is directed to me—Who are you?—my answer is from a George M. Cohan play called The Tavern. The main character, played by the mysterious George M., was asked “Who are you?” Here is his answer (and mine):

I don’t know who I am, and if I did, I’d be the most miserable man on earth, for my greatest happiness lies in the fact that I occupy a most unique position—that of not having been cast for a part in the great world drama of life.

Let me stop here and give you a few words from other people who thought they knew who they were. I picked them out from The Experts Speak, written by Christopher Cerf and Victor Navasky:

I have no political ambitions for myself or my children.
—Joseph P. Kennedy.
I’m for Roosevelt, 1936

My decision to remove myself completely from the political scene is definite and positive.
—General Dwight David
Eisenhower, 1948

You don’t have Nixon to kick around anymore—because, gentlemen, this is my last press conference.
—Richard M. Nixon (former Vice President of the United States), addressing reporters after losing the 1962 California gubernatorial
election. November 7, 1962

The thought of being President frightens me. I do not think I want the job.
—Ronald Reagan (Governor
of California), 1973

Mr. Kahneman refers to lawyers and says that before we give advice, we must put aside our experience and use System 2. We must collect all the facts and the law and only then give the advice.

I have been present in a few discussions concerning whether to agree to a settlement or to try the case. Most lawyers are System 1 types. We think we have enough experience to predict how things will turn out without consulting the reports that are published, for a price, of the jury verdicts and of the lawyers and the experts connected with each trial.

Hugh Lynch, a successful trial lawyer and negotiator, was System 1. He did not bother with the jury verdict publications. Hugh said the laws of probability are true in the general, but fallacious in the particular. He was skeptical about System 2 types. They had the data, the charts, and the statistics, but he took his lesson from the philosophy in the verse from “As Time Goes By,” the song from the movie Casablanca:

This day and age we’re living in
Gives cause for apprehension
With speed and new invention
And things like fourth dimension.
Yet we get a trifle weary
With Mr. Einstein’s theory.
So we must get down to earth at times
Relax relieve the tension
And no matter what the progress
Or what may yet be proved
The simple facts of life are such
They cannot be removed.

Thinking, Fast and Slow is an interesting book. However, I pose a question for Mr. Kahneman. Why did Congress enact the Sentencing Guidelines, an algebraic, computerized determination of prison sentences? Judge William Bryant, a remarkably gifted defense lawyer, prosecutor, and federal judge, was offended by the guidelines. He believed that the allocution, which every defendant has but the guidelines erase, was an important element in determining the defendant’s sentence.

Reach Jacob A. Stein at [email protected].