Scientific Proof of Law’s Overreliance On Reason: The “Reasonable Man” is Dead, Long Live the Whole Man

January 19, 2014

brain_gearsThe 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.

quantum-physics_headScience, 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 ArielyAre 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?

Ralph_swearing_oath_bibleI 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.

Flying Spaghetti Monster

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.

prisoner_ralph_chainsWe 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.

Lord Phillips 2009Maybe 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.


The Ongoing Battle of David and Goliath in the Legal Profession

January 5, 2014

David and Goliath book coverMalcolm Gladwell’s new book, David and Goliath: Underdogs, Misfits, and the Art of Battling Giants, helped me to understand that e-discovery professionals are the new Davids of the legal profession. Giants beware. Here we come.

If you have not read Gladwell’s book yet, I suggest you do so, despite how all the big powerful reviewers have trashed it. Below is a good video of a TED-talk by Gladwell on the central theme of the book, the true meaning of the David and Goliath story. That is followed by a few of the more notable quotes from the book. This should give everyone who has not yet read the book enough background for the rest of this blog. I will then give my take on how Gladwell’s insights apply to law and e-discovery. I’ll explain why I relate to David and, like him, dare to take on the big guys. Like the bible story itself, I hope this will help motivate you to keep on doing the same.

Quotes from Gladwell’s David and Goliath:

The very thing that gave the giant his size was also the source of his greatest weakness…The powerful and the strong are not always what they seem.

Power can come in other forms as well – in breaking rules, in substituting speed and surprise for strength.

We spend a lot of time thinking about the ways that prestige and resources and belonging to elite institutions make us better off. We don’t spend enough time thinking about the ways in which those kinds of material advantages limit our options.

The reasonable man adapts himself to the world: the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man.

An innovator who has brilliant ideas but lacks the discipline and persistence to carry them out is merely a dreamer.

David’s ability to win that battle begins with weakness. He can’t win the normal way. He must be creative.

Your obstacles and moments of weakness are your greatest opportunity.

The David position is a high-risk position. There was a possibility he could fail.

Be forgiving of those who have failed. If it doesn’t work, they will get another shot.

David is marked by his refusal to be passive.

When an underdog fought like David, he usually won. But most underdogs don’t fight like David.

To play by David’s rules you have to be desperate.

Desperate Like David

ralph_profileLike most e-discovery professionals, I relate with David, the little guy, the apparent underdog. In truth, I’m like him. Just another small blogger taking swipes at windmills. Ask any truly rich and powerful lawyer, for instance, the millionaires that run most of the big law firms, or the rich executives that run most of the law tech companies. Most think that individual bloggers like me, rule breakers, are not even worthy of their attention. I’m just one small voice among a billion self-published blogs that spit out three million new posts each day. They see me as just another little guy, easy to crush, easier still to ignore.

My readers, Davids all, certainly see that, but you might not see that I’m desperate like David. I try to hide it. A lawyer’s vice of pride I suppose. But in truth, I am desperate. Desperate for change and, like David in the Bible, motivated by a fear of failure, fear that my tribe of fact-based justice seekers may be wiped out.

I fear that law may get swept away by technological changes, may become irrelevant. Law may become just another big business. I fear that our society may lose its foundation in justice, or, as many contend, become even less just than it already is. I fear that a society based on Men, on Corporations, and not Law, may take over. I fear that a day may come when liberty and justice for all becomes as passé as privacy. I am desperate to stop all of those things.

Security-or-Privacy

We all have certain unalienable rights, including a right to both security and privacy. Neither can be absolute, but for justice sake, they must be kept in balance. That is all part of our legal right to Life, Liberty and the pursuit of Happiness. Like all lawyers, I have sworn multiple oaths to uphold these basic rights. Foolish David that I am, I take these vows seriously.

Mere Shepherd Boys

Every e-discovery specialist knows that as far as most lawyer Goliaths are concerned, you know, the big dogs, the heavy rain makers that run most law firms, people like us are just e-discovery puppies. We are lowly geeks who only do discovery for a living. Most still think this is just a lowly shepherd boy task suitable for first-years. Why would we ever make such attorneys partners? It is not even a real legal pursuit; it is just computer forensics. Some even think it is just something you hire a vendor do. In fact, there is no state Bar anywhere that will even recognize e-discovery as a legitimate speciality. Believe me, we tried in Florida and were shut down, big time. We heard all of those responses.

The Goliath establishment that still runs our justice system resents our kind and  our technologies, including especially the sling-shot of our day, predictive coding. Although the Goliaths loathe us for who we are, they do not fear us, which is one of our advantages.

Law_is_business

We are so small, many of the legal Goliaths do not even see us. They have very poor vision. They do not read blogs. If they do see us, it is just like the story in the Bible. They laugh at such unworthy rivals. They are over-confident to an extreme. For instance, most see me as just another blogger. Not even published by a major media corporation. Self-published. Just like a billion others. What a joke. I am easily trivialized as just another little ego-voice in the much disdained blogosphere. A little shepherd boy playing with computers. You should hear the establishment lawyer mockery if I admit that I also tweet on Twitter. Let us not even talk about having a You Tube Channel, or my far-out, unprofitable, attempts at online legal education. You can almost hear the ironic taunts of Goliath: Am I a dog that you should come to me with sticks?

Trying to Put a Dent in the Legal Universe

In truth, like David, I am desperate, and ready to risk-all to win the battle. I am tired of waiting for my profession to change. Tired of watching our justice system erode. That is why I fight so hard. Why I write each weekend to help motivate and arm the few other Davids, who, like me, are trying to make a difference. To paraphrase Steve Jobs, we e-discovery pioneers are all trying to put a dent in the legal universe. I am reminded of one of the greatest short videos of all times, one that also happens to be a 1984 Apple commercial.

The profession we chose, that we care about, moves so terribly slow, and in lockstep, just like the commercial. Still, we e-discovery pioneers persist. In my case, I write-on. Lately, I have even dared to fight some of the acromegalic giants head on, to put my crazy predictive coding claims to a test, both in court and in the laboratory.

My gratification is to sometimes hit the Goliaths on the head. Someday they may even fall as a group, like dominos, and the profession change. Maybe I will live to see that day, maybe not. But I am confident that my son will. Change is in the air. I am confident that the legal world will eventually adapt to technology and big data in a way that preserves individual rights. The legal profession, and its work of justice-making, will evolve and survive. It will refuse to become just another business. Someday lawyers, with the help of paralegals and techs, will thrive in the deluge of big data, not be drowned by it.

The work of justice, of fairness and equity, is critical to our future. Technology and science alone, without the temperance of justice, could easily create a Orwellian nightmare. We must and will prevent that from happening.

Join with me in that good fight. Stand up to the giants. But do not try to beat them at their own game. Understand and play by the rules of David.

Conclusion

Michelangelo's David and Goliath

The legal Goliaths may appear to be invincible, but in truth, they are vulnerable. The legal establishment’s weaknesses are technology, vision, and speed. Since these are David’s strengths, our victory is possible. If we carry on with our technology, unafraid, we will eventually get a-head. We have only to keep our edge, our desperation. Then it is just a matter of time and perseverance. It may seem like a hopeless, unfair fight to take on the powerful firms and corporations, to fight alone for truth and justice. But is it really, and to which side?



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