The Reasonable Man on which the law is based is a fiction of our collective legal imagination. He does not exist. Never has, never will. We humans are much more complex than that. Although reasoning is important, it is only one of our many capacities, including imagination. Most of our decisions are not even based on reason. Quaint notions to the contrary from the 18th Century Age of Reason are out of touch with reality. They are contrary to what science today is telling us about how humans process information and reach decisions.
Scientific research shows that the cornerstone of the Law – Reasonability – is not solid granite as we had thought. There are no hard gears in our head, just soft, gelatinous, pinkish-beige matter. (Our brain is only soft grey matter when dead.) The ratiocination abilities of the brain are just one small part of its many incredible capacities. (For example, recent experiments at MIT have shown that we can identify images seen for as little as 13 milliseconds, 13/1,000ths of one second.) We are far more than just rational, and that is a good thing.
Going Beyond the Age of Enlightenment
Into the Modern Era of Science
This blog will offer proof that the Law’s Reasonable Man is dead. Then I will encourage the profession, starting with you dear readers, to transcend the mere rational. We all need to change our work to include more of our human capacities. This does not mean a return to the Dark Ages and the discovery of truth by torture and combat. It means following the inevitable dictates of the Age of Reason, that we be guided by the findings of science and objective repeatable, experiments, no matter how irrational these findings may at first seem. To refuse to accept the truth, no matter how different it is from your current beliefs, is itself an irrational carryover from the Dark Ages. We must boldly go where science and reason takes us. The world is not flat and we are not governed by reason alone. We are far more than a thinking machine. We must open our eyes and see the truth. That is the true meaning of the Age of Enlightenment.
Science, based on reason and the experimental method, has taken Man beyond the rational, has shown the limitations of reason. Just as the evidence from physics experiments forced scientists to go beyond Newtonian Causality, and required them to embrace the seemingly irrational truth of Relativity and Quantum Mechanics, so too must the Law now evolve its thinking and procedures. As proof for this proposition in this blog I will proffer the testimony of one expert witness, a noted MIT and Duke University Psychologist and Behavioral Economist.
The Legal Profession Must Awaken from the Daydream of Rationality
My last blog, The Psychology of Law and Discovery, laid the foundation for the introduction of this evidence. I noted how law is based on the assumption that people make reasoned decisions and are capable of acting in a reasonable manner. I offered preliminary evidence that this assumption is contrary to the findings of research psychologists. I referred to a recent article by one such psychologist, Herb Roitblat, who is also an expert in legal search: The Schlemiel and the Schlimazel and the Psychology of Reasonableness (Jan. 10, 2014, LTN). I will now offer further, more detailed proof that humans do not act out of reason. I will do so by use of videotaped expert testimony of sorts. I will then argue that these findings require us to make fundamental reforms to our system of justice.
The consequences to the Law of the new experimental findings are profound. They raise many questions for which I have only a few preliminary answers. Many more questions will arise I am sure. This is much bigger than any one lawyer, or one or two blogs. The entire profession will have to awaken from the daydream of rationality. This is just the start of the discussion. We need to work together to change our system of justice to conform to the evidence of irrational behavior that science has uncovered.
This evidence is abundant. With only a little search I am sure you will find much more proof than I will now proffer. This is solid scientific evidence based on verifiable experiments. The evidence proves that our assumptions made in the law as to human reasonability, assumptions built centuries ago when the Age of Reason first began, are false assumptions. The evidence shows that the Reasonable Man is a legal fiction.
As Exhibit “A” to the assumption busting proposition I rely on the work of Dan Ariely, a Professor of Psychology and Behavioral Economics at Duke University. As an introduction to his work I offer a TED video of Professor Ariely, Are We In Control of Our Own Decisions? He refers to his many scientific experiments at MIT, then Duke, that show we are not in control of many of our own decisions, even seemingly simple ones. These experiments prove my point. Listen carefully.
Predictable Irrationality and Swearing on Bibles
Need more proof? Then please consider additional testimony from Professor Ariely on predictable irrationality. This discourse even mentions every e-discovery lawyer’s favorite company, Enron, and examines our basic moral code, our personal fudge factor. Dan has conducted many experiments on the all too human tendency to cheat and lie, if only just a little, and the moving grey line between acceptable and unacceptable behavior. This is the line that the Law is constantly asked to draw, and to evaluate. These psychological insights are important to all lawyers, especially discovery lawyers, of the “e” only type like me, or not. Again, please listen carefully and consider the implications of these findings on the Law.
One interesting finding from Professor Ariely’s scientific experiments on cheating, one that you can easily miss in the video (see around frame 8:15), even if you can see 77 frames per second, is that asking people to swear on a Bible significantly reduces cheating. This even works for atheists! I kid you not. Perhaps we should bring back the old tradition of requiring all witnesses to swear on a bible before beginning their testimony?
I have done this myself long ago when I was out taking depositions as a young lawyer. In the early eighties many court reporters in rural counties of Florida would still pull out a Bible before a deposition began (they all used to carry them around for that purpose, and yes, that was way before they started carrying around computers). The court reporter would then ask the deponent to raise their right hand and put their left hand on the Bible. All the witnesses I saw instantly complied, thinking erroneously that this was a legal requirement. They placed their hand on the Bible, some nervously, and some like they did that all the time, and then were asked to solemnly swear on the Bible that they would tell the truth, the whole truth and nothing but the truth so help me God. They did as asked by the serious court reporter, and some seemed pretty impressed by the whole ceremony. I recall that overall the testimony from these witnesses was pretty good.
I only saw this done a few times, and, as a typical arrogant big city lawyer (yes, out in the rural areas where they were still doing this, they all thought of Orlando as a big city), I dismissed it as a quaint old custom. But now science shows that it works. Science shows that this quaint custom works, even for members of the Church of the Flying Spaghetti Monster.
What are the implications of these findings about human behavior? Maybe we should bring back Bibles into the court rooms? Or at least bring back a bunch of solemn oaths? If we do not require swearing on or to a Bible, due to Church and State, or whatever, then perhaps we should ask people giving testimony to swear on something else. Most anything seems to work, even if it does not really exist. Dan Ariely’s experiments found that it even worked to have MIT students swear on an honor code that didn’t exist. Maybe asking lawyers to swear on their ethics codes would work too? Maybe that is the reform in the procedural rules we should be pushing for, instead of Rule 37(e)? Maybe we should update Rule 603 of the Federal Rules of Evidence:
Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.
We need to work on forms designed to impress today’s savvy witnesses. Maybe bringing back Bibles will work for some, or something custom-fit to the particular witnesses. Who knows, for a chemist, it might be the periodic table. For others it might be a picture of their mother. Maybe the oath should be administered by prisoners in chains and mention the penalties of imprisonment for perjury. I think that would be pretty effective. Have you ever seen prisoners in chains up close in the court room? A few judges I know used to handcuff and shackle fathers who were delinquent in child support payments like that before their hearings. I am told it had a very sobering effect. Some experiments with this should be conducted because our current systems are not working very well. We rarely impress witnesses enough to awaken their latent conscience, much less our lawyers.
Maybe we should also amend Rule 26(g) to add swearing and a reference to ethics codes? Maybe stronger, more impressive oaths by lawyers signing 26(g) discovery requests and responses would work. Perhaps that would magically make more all too human lawyers start taking the requirements of the rules more seriously.
Maybe we should follow the British and make our judges wear fancier robes and make our lawyers and judges wear wigs? (One of Ariely’s experiments found clothing had an impact on honesty.) Let us build even more impressive court rooms while we are at it, and let’s not only say Your Honor, but how about Your Lordship too? Or Your Grace? Maybe all lawyers should start adding courtly formalities to their 26(f) conferences? I can just imagine defense attorneys beginning every one of their responsive statements with things like: “The right honorable attorney representing the plaintiffs in this proceeding has made a point with some validity, but …” Maybe that would motivate lawyer conduct that would in fact please the court?
Of course I jest, but Ariely’s work shows that irrational approaches have a better chance of success than appeals to abstract knowledge alone. Forget about using reason to appeal to lawyers to cooperate, we have all seen how far that gets us.
END OF PART ONE.
Part two will follow next Sunday. I swear.