Scientific Proof of Law’s Overreliance On Reason: The “Reasonable Man” is Dead and the Holistic Lawyer is Born

brain_gears_NOLast month I wrote about the place of reason in the law. The Law’s “Reasonable Man,” Judge Haight, Love, Truth, Justice, “Go Fish” and Why the Legal Profession Is Not Doomed to be Replaced by Robots. That article discussed how reasonability is the basis of the law, but that it is not objective. It depends on many subjective factors, on psychology. This article elaborates on this key point. The Law’s Reasonable Man is a fiction. He or she does not exist. Never has, never will. All humans, including us lawyers, are much more complex than that. We need to recognize this. We need to replace the Law’s reliance on reason alone with a more realistic multidimensional holistic approach.

Although logic and reasoning are important, we have many other important capacities, including empathy, intuition and imagination. All of these capacities are required for the practice of law. That is why lawyers cannot be replaced by robots. The fact the Reasonable Man is a fiction is something we lawyers should celebrate, not sweep under the carpet.

Most human decisions are not even based on reason. Quaint notions to the contrary are derived from the 18th Century Age of Reason. They are completely out of touch with reality. They are contrary to what science today is telling us about how humans process information and reach decisions.

frozenbrainsScientific research shows that the cornerstone of the Law – Reasonability – is not solid granite many 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, MIT scientists 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

Only_Humans_Need_ApplyThis article will offer proof that the Law’s Reasonable Man is dead. This is a cause for optimism because, as noted, if we were just reason-based workers, then our functions would soon be automated. We would soon all be out of work. See eg. Thomas H. Davenport, Julia Kirby, Only Humans Need Apply: Winners and Losers in the Age of Smart Machines (Harper 2016). Although most lawyers in the profession do not know it yet, the non-reasoning aspects of the Law are its most important parts. The reasoning aspects of legal work can be augmented. That is certain. So will other aspects, like reading comprehension. But the other aspects of our work, the aspects that require more than mere reason, are what makes the Law a human profession. These job functions will survive the surge of AI.

If you want to remain a winner in future Law, grow these aspects. Only losers will hold fast to reason. Letting go of the grip of the Reasonable Man, by which many lawyers are now strangled, will make you a better lawyer and, at the same time, improve your job security.

In today’s AI driven economy we all need to change our work to include more of our human capacities than mere reason. This is transforming all work, not just legal. We are far more than a thinking machine. We must open our eyes and see the truth. That is the true meaning and ultimate conclusion of the Age of Enlightenment.

Schrodinger's CatScience 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 chapter 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

Reasonable_guageMy last blog, The Law’s “Reasonable Man”, laid the foundation for the introduction of this evidence. I noted how the 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: The Schlemiel and the Schlimazel and the Psychology of Reasonableness (Jan. 10, 2014, LTN) (link is to republication by a vendor without attribution).

I will now offer further, more detailed proof that humans do not act solely out of reason. Some just delude themselves into thinking so. I will then argue that these findings require us to make fundamental reforms to our system of justice. These reforms will both improve the our justice system and ensure the survival of the legal profession. Lawyers will remain, but they will look and work much differently than they do today. They will be augmented by AI, but not automated and replaced by AI. Productivity and efficiency will go through the roof. Our system of justice will vastly improve. To get there the profession will first have to awaken from the daydream of rationality. This article is designed as a wake up call.

This evidence of logic’s limitations is abundant. With only a little search I am sure you will find much more proof than I will now proffer. Many of you already know this from long experience in the courtrooms and law offices of the world, but may now have heard of the scientific proof. The evidence proves that the old assumptions on human reasonability, assumptions built centuries ago when the Age of Reason first began, are false. 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 ask readers to stop and take a few minutes, right now, to watch the TED video by Professor Ariely, Are We In Control of Our Own Decisions? He refers to his many scientific experiments at MIT and Duke that show we are not in control of many of our own decisions, even seemingly simple ones. These experiments prove my point.

Predictable Irrationality and Swearing on Bibles

Need more proof? Then please consider additional testimony from Professor Ariely on predictable irrationality. It is on another video called We’re All Predictably Irrational. 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 predictable irrationality video, 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. Then they 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, meaning less lies than usual.

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.

What are the implications of these findings about human behavior? Maybe we should bring back Bibles into the courtrooms? 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 next reform in the procedural rules we should push for. 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 courtroom? A few judges I know used to handcuff and shackle fathers who were delinquent in child support payments 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 their 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 courtrooms 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.

Doing the Right Things for the Wrong Reasons

Are you a die-hard rationalist and demand more proof that the Reasonable Man is a myth? More evidence? Then listen to Dan Ariely’s Doing The Right Things for The Wrong Reasons.

Professor Ariely talks about more of his experiments. They show how immediate, tangible, emotions and concrete facts are a much more powerful motivator than all abstract knowledge. This means that one sanctions case invoking fear will do much more to encourage cooperation than a thousand law review articles. In my experience judges that threaten harsh punishment, that are known not to tolerate discovery misconduct, tend to have fewer disputes. Now we know why. Fear is a more powerful motivator than reason. As he shows in the video, for some people a good glass of wine is a powerful motivator too.

Dan_Ariely_toastProfessor Ariely’s testimony in this video examines the big gap between everyone’s knowledge of what they should be doing, and what they actually are doing. The truth is, we often do not act reasonably. There are many other more powerful forces at work. One of the most important is environment, and thus my earlier comments on impressive courtrooms, wigs, courtly conduct, and the like. Brand names and price have the same kind of impact. Many clients are still impressed by the big-firm, fancy reception room syndrome. People tend to think about fine wine and lawyers in the same way.

In the second half of this testimony Dan Ariely started to share some of the solutions he has come up with to these problems, ways to trick yourself and others into doing the right thing. One such motivator is public recognition, pride. Remember his discussion regard Prius owners. So how about Cooperation awards of lawyers? Proportionality awards for judges, etc. Let’s award a whole lot of gold, silver and especially bronze medals. I am serious about this awards and recognition proposal. If you have any interest in funding such awards, or otherwise being involved, please let me know. This would be a good opportunity for vendors in the legal space, especially e-discovery vendors.

Mere intellectual appeals to change behavior are almost useless. You have to persuade the whole human, and that requires addressing emotions and many other subconscious factors. That requires far more than abstract, knowledge-based writings.

The Power of Emotions and the Myth of Reasoned Behavior

Judge_Paul_GrimmThe power of emotions, and immediate gratification, should never be underestimated. This includes the positive motivators, like praise and recognition. An active judiciary can do much more to impact reasonable, ethical conduct than all appeals to reason. Judges need to be in your face, with both criticism and praise, stick and carrot. The motivations need to be immediate and real, not abstract and future oriented. See eg. Victor Stanley and the impact of Judge Grimm’s threats of immediate imprisonment of Pappas, the ultimate hide-the-ball litigant. Only that last jail contempt order in that case slowed the games. Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 506 (D. Md. 2010) (the attempts to collect the many fines and judgment entered in that case are still ongoing).

This all reminds me of Judge Waxse’s well-known quip that lawyers are like elementary particles, they change when observed (by judges). He has found that lawyers are more inclined to cooperate simply by including a possibility that a judge might someday watch a video of their behavior. Maybe we should require that all lawyer-to-lawyer communications be taped? Maybe we should triple the number of judges and give them all sensitivity training? Who knows? But the research shows that all manner of alternatives like that would be more successful than mere appeals to reason alone.

Waxse_Losey

This all makes me wonder why I even bother to continue to write, but then again, you may have noticed that I try to include non-rational appeals in my writing, such as images, videos and the great irrational motivator of humor. Humor is an elusive emotion to reach, but well worth the effort. It is difficult to resist the ideas of anyone who makes you laugh. Personally, I refuse to emulate anyone who does not at least make me smile. If they make me laugh out loud, well, I will dig in deep to try to understand them and their ideas. (This is on reason I highly recommend the new self-help book by Scott Adams, the creator of Dilbert – How to Fail at Almost Everything and Still Win Big: Kind of the Story of My Life.)

Law is Like Economics: Both Are Still Based on an Irrational Reliance on Reason

Predictable_IrrationalAs you have seen from the videos, Dan Ariely is not only witty, but also a psychologist and an economist. He has one PhD in Psychology and another in Business Administration. He is also an author of a number of books that explain his works to the general reader, including the best seller: Predictably Irrational: The Hidden Forces That Shape Our Decisions.

Dan evaluates the implications of his irrationality findings in Psychology on the field of Economics. So too are many other pundits in the field. See eg. Post-Rational Economic Manand Exploring the Post-Rational 21st CenturyAriely and others have amassed a growing body of evidence that humans are not rational machines. Yet most economists, much like most lawyers, do not believe that. They still believe that people make rational decisions. For instance, that purchases are based on reason alone. See Rational Choice Theory. That is the basis of classic economic theory, and since that presumption is wrong, so is the theory. Economics is now struggling with the development of new theories based on the way people really act. Dan is a leader of that movement, which he calls Behavioral Economics.

Learning a little about Dan’s insights and proposals to reform economic theories, and make them more realistic, and empirically based, can provide insights into the Law and reforms we should make. Surely we can do better than propose more videotapes of lawyers, in your face judges, bibles and oaths, solemn court reporters, and British style ceremonial conduct. But these are a start.

Reasonable_guageMore fundamentally, we need to consider how we should speak of legal negligence in the future. We need to stop referring to whether an act is reasonable, and instead speak of acceptability, with reason just one of several factors to consider in evaluating acceptable behavior. That is what I call, for lack of a better term, Holistic Jurisprudence. More on that later. Perhaps some law professors and judges are already thinking and writing about this, and I am not aware of their writings. If not, then what are we waiting for? The evidence of innate irrationally based, yet acceptable, behavior, is strong. That is our everyday reality. So why do we use a measure of acceptable conduct that does not mirror reality? Legal theory needs to change as much as economic theory, and so too does legal practice.

Robots and Neuroscience?

Facc_RobotI know what some of you are thinking. Maybe the answer is simply to turn our justice system over to robots programmed to make rational decisions. They will not suffer from innate irrationality like our judges do. (Yes, even judges are human and thus even judges suffer from the same cognitive disorders, same irrational drivers, that other humans do). Rational machines could also be programmed to fairly consider the innate irrationality of humans. We could create super robojudges by using active machine learning. They could receive training in just-decision-making by our top judges. Imagine, for instance, the wisdom and wit of retired Judge Facciola programmed into an AI entity. The input from our top judges would thereby, in theory at least, live forever. The experience and intelligence of our best judges would then be available to all litigants, not just the lucky few who appear before them. This puts a while new positive spin onto the Ghost in the Machine image.

The AI enhanced robojudges would, of course, be far more than mere rational machines. They would be trained by our legal experts to render judgments based on the Whole Man, one that actually exists, and not the legal fiction of the Reasonable Man. They would be programmed in a post-rational manner following models of real human behavior of acceptable conduct. (Our best human judges and lawyers already do that anyway, even if the jurisprudence theory says otherwise.) The day may come when many litigants will prefer smart, well-trained robots to serve as judges to evaluate acceptable conduct, especially when there are good human appeals judges to oversee the process. That day is, however, still in the remote future.

ex_machinaOf course, if Ray Kurzweil is right about the Singularity coming soon, then all bets are off. But Kurzweil is probably wrong about how fast AI will advance, and so I do not see this anything like this happening this century. Moreover, the live forever proponents are, in my view, seriously deluded. (Fear of death tends to do that to people. Just look at the many wacky beliefs people have.) There is far more to the human soul than logic can ever replicate. We are more than a set of synapses that can be replicated with on off switches. Still, I could be wrong.

Automation by full human replication is not The answer (at least not in this century). The use of AI enhanced tools in the law, such as predictive coding for document review, is more realistic. It will continue and expand into many other legal activities. Very soon many more types of lawyers, in addition to contract review lawyers, will need to retool in order to stay employed. The simple logic and reason tasks of lawyers will be automated. All mere logic workers will have to change or be out of work. But, at the same time, new employment positions will open for those involved in the new technologies. The jobs that open up will require greater technology skills, intellect, empathy, leadership, creativity and imagination. They will require uniquely human attributes that are way beyond the programming of any robots, now and perhaps forever. Again see Only Humans Need Apply for a good review of this subject in the context of the economy.

I cannot imagine exactly how this will all play out, but, new advanced technologies will have to be part of all future legal reforms. Many of the technologies are probably still unknown and thus impossible to project. But some will be based on existing technologies, just significantly improved.

Facciola_computerPerhaps that will include active machine learning and AI based law clerks for judges. It is not hard to imagine a judge’s consideration of an AI enhanced suggested view of the case. After all, they already do this based on their clerk’s views. I suspect judicial clerks will be replaced way before the judges themselves. Judges need to be enhanced with better computers, not replaced by them. They need to be augmented, not automated.

To take a more mundane example than robots and AI, I suspect that lie detection technologies will soon advance enough to be of greater assistance to the Law. How about acceptably intrusive truth-compelling technologies? I can easily imagine neural nets with electronic brain monitors built into “truth hats.” Witnesses would be required to wear the truth-indicating hats and give the attorneys, judges and juries more and better insights into their testimony. Not only intentional lies could be revealed, but strength of recollection, areas of brain accessed, etc. This would not have to be dispositive, but suggestive. This could provide us with something more to evaluate credibility than raw instinct and intuition, as important as these faculties are.

Meet-the-Parents-lie-detector with Harry Potter twist

We should be looking for all kinds of ways to bring the recent incredible advances in Neuroscience into the justice system. This is not futuristic science fiction, nor my over-active imagination. It is already happening. Many neuroscientists are looking into lie detection and other possible neuroscience applications in the Law. See eg Harvard’s Center for Law, Brain and Behavior and its program on Lie Detection & the Neuroscience of Deception.

Final Word From Dan Ariely 

Dan-Ariely_WSJGetting back to Dan, in addition to teaching and running very clever experiments at MIT and Duke, Dan is the founder of an organization with a name that seems both funny and ironic, The Center for Advanced Hindsight. He is also a prolific writer and video maker, both activities I admire. See for instance his informative page at MIT, his blog at DanAriely.com, his several books, and his videos, and even though its slightly boring, see his web page at Duke.

As a final piece of evidence on over reliance on reason I offer more testimony by Professor Ariely’s via another video, one which is not at all boring, I swear. It is called The Honest Truth About Dishonesty.

The video concludes with a subject near and dear to all lawyers, conflicts of interest. The non-rational impact of such conflicts turns out to be very strong and the law is wise to guard against them. Perhaps we should even step up our efforts in this area? 

Cornerstone Made of Pudding

CornerstoneThe scientific experiments of Dan Ariely and others show that the cornerstone of the Law – reasonability – is not made of granite as we had thought, it is made of pudding. You can hide your head in the sand, if you wish, and continue to believe otherwise. We humans are quite good at self-delusion. But that will not change the truth. That will not change quicksand into granite.

Our legal house needs a new and better foundation than reason. We must follow the physicists of a century ago. We must transcend Newtonian causality and embrace the more complex, more profound truth that science has revealed. The Reasonable Man is a myth that has outlived its usefulness. We need to accept the evidence, and move on. We need to develop new theories and propositions of law that confirm to the new facts at hand. Reason is just one part of who we are. There is much more to us then that: emotion, empathy, creativity, aesthetics, intuition, love, strength, courage, imagination, determination – to name just a few of our many qualities. These things are what make us uniquely human; they are what separate us from AI. Logic and reason may end up being the least of our abilities, although they are still qualities that I personally cherish.

Science has shown that our current reason-only-based system of justice is on shaky grounds. It is now up to us to do something about it. No big brother government, or super think-tank guru is going to fix this for us. Certainly not scientists either, but they should be able to help, along with technologists, programmers and engineers. This fix will have to come from within the legal profession itself. No one else knows our system of justice well enough to do this for us, certainly not scientists nor engineers. I know this from hard personal experience.

homer-simpson-brain-scanWhat are the implications of the findings of unreliable mental processes on the Law and our ability to reach just decisions? We should ask these questions concerning the Law, just like Professor Ariely is asking concerning Economics. Our fundamental legal assumption that all people can act out of reason and logic alone is false. Decisions made with these faculties alone are the exception, not the rule. There are a number of other contributing factors, including emotions, intuition, and environment. What does this mean to negligence law? To sanctions law? Now that the Reasonable Man is dead, who shall replace him?

Just as classical economic theory has had it all wrong, so too has classical legal theory. People are not built like reasonable machines. That includes lawyers, judges, and everyone else in the justice system, especially the litigants themselves.

If Not Reason, Then What?

Davinci_whole_manSince human reason is now known to be so unreliable, and is only a contributing factor to our decisions, on what should we base our legal jurisprudence? I believe that the Reasonable Man, now that he is known to be an impossible dream, should be replaced by the Whole Man. Our jurisprudence should be based on the reality that we are not robots, not mere thinking machines. We have many other faculties and capabilities beyond just logic and reason. We are more than math. We are living beings. Reason is just one of our many abilities.

So I propose a new, holistic model for the law. It would still include reason, but add our other faculties. It would incorporate our total self, all human attributes. We would include more than logic and reason to judge whether behavior is acceptable or not, to consider whether a resolution of a dispute is fair or not. Equity would regain equal importance.

A new schemata for a holistic jurisprudence would thus include not just human logic, but also human emotions, our feelings of fairness, our intuitions of what is right and just, and multiple environmental and perceptual factors. I suggest a new model start simple and use a four-fold structure like this, and please note I keep Reason on top, as I still strongly believe in its importance to the Law.

4-levels-Holistic_Law_pyramid

Some readers may notice that this model is similar to that of Carl Jung’s four personality types and the popular Myers Briggs personality tests. I am not advocating adoption of any of their ideologies, or personality theories, but I have over the years found their reference models to be useful. The above model, which is proposed only as a starting point for further discussion, is an extrapolation of these psychological models.

Call For Action

The legal profession needs to take action now to reduce our over-reliance on the Myth of the Reasonable Man. We should put the foundations of our legal system on something else, something more solid, more real than that. We need to put our house in order before it starts collapsing around us. That is the reasonable thing to do, but for that very reason we will not start to do it until we have better motivation than that. You cannot get people to act on reason alone, even lawyers. So let us engage the other more powerful motivators, including the emotions of fear and greed. For if we do not evolve our work to focus on far more than reason, then we will surely be replaced.

cyborg-lawyer

AI can think better and faster, and ultimately at a far lower cost. But can AI reassure a client? Can it tell what a client really wants and needs. Can AI think out of the box to come up with new, creative solutions. Can AI sense what is fair? Beyond application of the rules, can it attain the wisdom of justice. Does it know when rules should be bent and how far? Does it know, like any experienced judge knows, when rules should be broken entirely to attain a just result? Doubtful.

To get specific on the reforms needed now, we should bring back equity, and down play law. This was common in the first half of the Twentieth Century. At that time it was common to have Courts of Law and separate Courts of Equity. By the middle of the last century, Courts of Law won out in most states except Delaware, Mississippi, New Jersey, South Carolina, and Tennessee. Separate Equity Courts were closed down in favor of Courts of Law. Maybe we got it backwards. Maybe we were all led astray by our false confidence in reason.

Perhaps most courts should be Courts of Equity and Courts of Law become the exception. How has it worked out for the states that kept equity courts? Have Chancellors truly been able to side-step strict rules of law when they felt it was equitable to do so? If so, how has that worked out? Has power been abused? Or has justice been attained more often? What can we learn from chancery courts that might help us build a more holistic court of the future? We should apply analytics to study these questions to help us to reshape the law in a more human, holistic manner. Law Professors need to study this and help guide the profession.

A Few More Specific Suggestions of Reform

The AI enhancements already moving the law will continue to expand. That much is certain. Predictive coding, my speciality, is currently the prime example, but there will soon be many others.  They will enhance and improve our abilities. They will help us be more efficient. They will also help us to stay fair and honest. They could help end, or at least mitigate, human bias, stereotypes and prejudice.

Maybe timely reminders of ethics codes and serious under penalties of perjury type threats will also help? Maybe new, improved, and customized oaths will help? Oaths have been shown to be effective by Ariely’s research, so we should modify the rules accordingly. Let’s consider an update Rule 603 of the Federal Rules of Evidence.

Electrodes_EEG_RalphMaybe new truth recognition technologies should be used? Could a truth hat with built-in neural net be that far off? How about Google Glasses type apps that provide reliable new feedback of all kinds on the people you watch testifying? That cannot be too far off.  (The lie detection apps already on the market for iPhones, etc., all look bogus to me, which is not unexpected based on the limited biofeedback the phone sensors can provide.) Even if the information is not admissible as evidence, it could still be quite valuable to lawyers. Perhaps some of the recent discoveries in neuroscience could begin to be used in the justice system in all types of unexpected ways?

trophy_LawMaybe public recognition and awards to lawyers and judges who get it right will help? Ariely’s research suggests it will. And awards to litigants who do the right thing too, even if they lose the case? How about a discretionary set-off for defendants like that? How about the converse? Shame can be a powerful motivator too. Some judges already do this in subliminal manner. Let us encourage a more open application of emotion and creativity in judicial activity.

Maybe we should change the conditions and environments of places where witnesses are questioned, where mediations and trials are conducted? Maybe we should provide special training to court reporters on oath giving? Maybe we should have trials again, and not just settlements?

We need to look for all kinds of motivators. Knowledge and reason alone are not a solid foundation for justice. We also need wisdom. See eg. Losey, R., Information → Knowledge → Wisdom: Progression of Society in the Age of Computers.

Conclusion

Ralph_mosiac_7-16All social structures today are experiencing disruptive change, including the Law. Technology is driving these transformations. We need courage to face the reality of rapid change, instead of fearful avoidance. We need to shape the changes in the Law, not be overridden  by them. We need to be proactive, creative. We need to be guided by truth, not tradition. That means paying attention to analytics and psychology, and not just digging deeper into the Law alone for answers. The insights we need will come from a multidisciplinary approach, but one that is led by legal professionals. Only we truly understand legal practice. But our efforts to shape the change in our profession must include knowledge from all fields, including science, engineering and art. It must also include input from all other participants in the legal system, especially clients, litigants, plaintiffs, defendants. Legal practitioners, judges and scholars alone cannot provide a holistic view.

We must move away from over-reliance on reason alone. Our enlightened self-interest in continued employment in the rapidly advancing world of AI demand this. So too does our quest to improve our system of justice, to keep it current with the rapid changes in society.

Where we must still rely on reason, we should at the same time realize its limitations. We should look for new technology based methods to impose more checks and balances on reason than we already have. We should create new systems that will detect and correct the inevitable errors in reason that all humans make – lawyers, judges and witnesses alike. Bias and prejudice must be overcome in all areas of life, but especially in the justice system.

Computers, especially AI, should be able to help with this and also make the whole process more efficient. We need to start focusing on this, to make it a priority. It demands more than talk and thinking. It demands action. We cannot just think our way out of a prison of thought. We need to use all of our faculties, especially our imagination, creativity, intuition, empathy and good faith.

7 Responses to Scientific Proof of Law’s Overreliance On Reason: The “Reasonable Man” is Dead and the Holistic Lawyer is Born

  1. realrecords says:

    Mr. Losey: In response to at least part of your very interesting article, I recommend in my legal hold presentations that attorneys utilize a legal hold certification process, which basically is a procedure where they are required to review active legal holds for which they are responsible, and certify that the holds are accurate and current. I believe this really aids in getting the point across that attorneys need to take the entire legal hold process seriously.

    Regards,
    Aaron Taylor

  2. Wow. A doozy of a post – as always. Some initial reactions (because a Losey post requires a re-look):

    “Reason”, wrote John Locke, “must be our best judge and guide in every thing.” You have kinda shot the hell out of that in your post. But note in so speaking, Locke epitomized a bright confidence in reason, widespread, which was born of the Enlightenment – which it seems you admire. I note two points you make:

    1. “We are far more than a thinking machine. We must open our eyes and see the truth. That is the true meaning and ultimate conclusion of the Age of Enlightenment.”

    2. we should bring back equity, and down play law. This was common in the first half of the Twentieth Century. At that time it was common to have Courts of Law and separate Courts of Equity.

    Hmmm .. actually 18th Scotland enjoyed a rare share of intellectual vivacity and the term “Scottish Enlightenment” is often used to denote a philosophical period (from approximately the 1720s to the 1820s) forming a part of the intellectual foundation of Western modernity, which had as a tenet the idea that equity, not law, was paramount. So you might be on to something.

    I point on which we are agreement: “The insights we need will come from a multidisciplinary approach, but one that is led by legal professionals. Only we truly understand legal practice. But our efforts to shape the change in our profession must include knowledge from all fields, including science, engineering and art. It must also include input from all other participants in the legal system, especially clients, litigants, plaintiffs, defendants. Legal practitioners, judges and scholars alone cannot provide a holistic view.”

    Kurt Gödel, the mathematician who formally confirmed the limits of logic and mathematics, actually thought that the human mind could transcend logic, for example by understanding certain statements that mere computers cannot ever prove no matter how many calculations they perform in the process. It is why the French mathematician, Laplace, the chap who really made Bayesian statistics famous … not Thomas Bayes who merely developed it 🙂 … said intellect is not vast enough to submit data to analysis, it must be “analyzed by one’s eyes”.

    Even my hero Alan Turing first pointed out (and this was before Crick and Watson the conventionally credited discovers of human genetic codes and DNA) that human cells perform a very complex job in working out what kind of cell they need to become. In an organism, all cells have the same DNA – it is their location in the organism that decides the form they eventually take. But Turing noted … not knowing a whit about DNA … that as one cell’s decision affects its neighbor, their decisions must also affect it – “a process replete with feedback effects, complexity”.

    Even your earlier piece on chaos theory describes processes that are deterministic but not predictable. Quantum mechanics describes processes that are not only beyond prediction, but not even deterministic. Turing: “we cannot determine what a single object in a quantum system will do in the short term. This takes us one more step outside the bounds of reason.”

    We as lawyers are just like physicists who make the mistake in trying to make mathematics and reason the final arbiter of truth.

  3. Ralph Losey says:

    Excellent comment Greg. I urge you to write more on the topic. Since I know little to nothing about Scottish and other courts outside of US, that was new to me.
    Thanks again, and if you do write more on this topic, please let me know. I will help you to publicize it, although as one of the legal masters of social media, you dont really need such help.

  4. Emet Anders says:

    The better question might be when people say they are being rational are they really “thinking” rationally? Not surprisingly, many people “feel” they are being rational all of the time. Are they? Even when they are sitting in the jury box?

    Is it a feeling? Is it instinct? Is it intuition? Or is it considered, rational, “reasoned” thought? Is it both, and/or neither? Is “reason” and thinking rationally a process or a state of being? You decide!

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