Monthly Archives: April 2014

What Makes Lawyers Happy?

A comprehensive analysis by Lawrence S. Krieger and Kennon M. Sheldon in their new article, entitled “What Makes Lawyers Happy?  Transcending the Anecdotes with Data from 6200 Lawyers.“(H/T Legal Ethics Forum)

Abstract:

Attorney well-being and depression are topics of great concern, but there has been no theory-driven empirical research to guide lawyers and law students seeking well-being. This article reports a unique study establishing a hierarchy of five tiers of factors for lawyer well-being, including choices in law school, legal career, and personal life, and psychological needs and motivations established by Self-Determination Theory. Data from several thousand lawyers in four states show striking patterns, repeatedly indicating that common priorities on law school campuses and among lawyers are confused or misplaced. Factors typically afforded most attention and concern, those relating to prestige and money (income, law school debt, class rank, law review, and USNWR law school ranking) showed zero to small correlations with lawyer well-being. Conversely, factors marginalized in law school and seen in previous research to erode in law students (psychological needs and motivation) were the very strongest predictors of lawyer happiness and satisfaction. Lawyers were grouped by practice type and setting to further test these findings. The group with the lowest incomes and grades in law school, public service lawyers, had stronger autonomy and purpose and were happier than those in the most prestigious positions and with the highest grades and incomes. Additional measures raised concerns: subjects did not broadly agree that judge and lawyer behavior is professional, nor that the legal process reaches fair outcomes. Specific explanations and recommendations for lawyers, law teachers, and legal employers are drawn from the data, and direct implications for attorney productivity and professionalism are explained.

Teaching Partisan Bias

250px-New_York_Mets_Insignia.svgWhen I moved to Boston a few years ago, I presumed my lifelong passion for baseball would wane. After all, what room is there for a Mets fan in this American League city? But recently, teaching behavioral legal ethics to my professional responsibility students has caused me to watch more Red Sox baseball games than anticipated (or at least the highlights online). Let me explain.

In the last few weeks of the semester, we have been focusing on the duties lawyers owe to courts and third parties (MR 3.3, 3.4, etc.). We started this module by reading Andrew Perlman’s excellent article that raises important questions about whether lawyers can be objective in assessing the permissible boundaries of advocacy (for an overview, here is his presentation at the UNLV Lawyering and Psychology conference). Andy’s main point is to question what he calls the “Objective Partisan Assumption,” that is, the prevailing view in legal ethics theory that lawyers can make relatively accurate assessments about the propriety of their own advocacy. Relying on decades of empirical research from social psychology, he demonstrates that, contrary to prevailing wisdom, partisanship tends automatically to override objectivity. In our class discussion, I asked my students to consider this research and Andy’s arguments in determining whether passionate advocacy by lawyers might cloud their objectivity in applying the rules.

The conversation was fruitful, if a bit abstract — at least until we started to discuss the Red Sox and Yankees. For those who haven’t been following this epic rivalry, there were two controversial calls in games last week concerning the new use of instant replay. The videos of both are here and here. After inquiring how many of my students were fervent Red Sox fans (a majority, of course; although Yankees fans were well-represented), we watched one of the clips – involving whether a Yankee player pulled his foot off second base when tagged by the Red Sox infielder (the runner was called safe, even though the replay seems to indicate otherwise). I asked how many thought the umpire made the right call. Not surprising, partisan bias reared its head: those who identified as Red Sox fans were adamant that the Yankee player was out, while the Yankees fans came to the opposite conclusion (this, even though the video shows that the Yankee player was out, which raises an interesting question of whether motivated reasoning is limited to ambiguous situations).

1951pufootballtteamresized06Of course, my class survey claims no scientific validity, but it did provide a window to discuss the classic psychology experiment, “They Saw a Game,” which is the progenitor of much of the research in this area (and which Andy and others have cited prominently). So, if you find that a 1950s football game between Dartmouth and Princeton is not riveting enough to capture the imagination of your students, may I suggest that a more recent rivalry in your home town might just do the trick — even if the rivalry involves two teams you find distasteful!

[Update 01/24/15:  For an entertaining podcast about the “They Saw a Game” study, including background on the football game itself, listen here]

Lessons from the Stanford Prison Experiment

Lately I’ve been giving a lot of thought to how the classic social psychology experiments can inform our understanding the attitudes and behaviors of lawyers–particularly criminal defense lawyers–toward their clients. So, I’ve decided to do a blog series exploring each of several of these classic social psychology experiments and their implications and lessons for criminal defense lawyering.

The first I will discuss is the somewhat infamous Stanford Prison Experiment. The Stanford Prison Experiment was conducted in the summer of 1971 at Stanford University by Philip Zimbardo and his colleagues. The experimenters had planned a two week experiment simulating a prison environment using college students. However, they had to shut down the experiment prematurely after only one week because of the cruelty of some of the “prison guards” and the extreme distress experienced by some of the “prisoners.” Zimbardo his colleagues started by putting an advertisement in the local newspaper. They asked for volunteers to participate in an experiment I would pay $15 a day. The experimenters carefully screened all applicants in order to assess their psychological health. Any applicant who appeared to be emotionally or psychologically compromised in anyway was not selected. In the end, they chose twenty-four participants. The determination of who would be prisoner in who would be prison guard was made by a flip of a coin. The experimenters created a prison like environment in the basement of the psychology department at Stanford University. Their efforts to create a realistic “prison” environment were significant. In fact, they replaced the standard laboratory doors with doors with bars. Other aspects of the experiment were designed to be realistic as well. The “prisoners” were initially rounded up The help of the Palo Alto Police Department. They were arrested, handcuffed, and taken to the police department, where they were fingerprinted. There, they waited he be taken to the experiment location. Once there, a variety of things happen to them that were carefully designed to mimic that which would happen to a real prisoner. For example, they were stripped naked and deloused and they were given special prison garb that was designed to degrade them and to set them apart from the prison guards. The prison guards also were dressed carefully so as to be as realistic as possible. They were given uniforms and reflective sunglasses such as those that you might see in a classic Hollywood cop movie. The experiment participants who were playing the role of prison guard were permitted to use whatever force or practices they deemed necessary to keep control of the prisoners. Over the course of the first day or two, these “guards” became increasingly comfortable engaging in practices designed to display dominance, such as forcing the prisoners to perform push-ups, and waking them in the middle the night for head counts. On the morning of the second day, in response escalating force and punitive practices on the part of the guards, the prisoners rebelled. They tore off their numbers and barricaded themselves inside their cells. They also begin to taunt the prison guards. In an effort to put down the rebellion, the prison guards called in reinforcements–other prison guards who had been on break at the time. Eventually, the guards increased their dominant behavior, engaging in a series of tactics over a period of days that were degrading, humiliating, and thoroughly broke down the would-be prisoners. In fact, a number of prisoners were found sobbing in their cells and had eventually to be released. Perhaps most interesting, the psychologists–including Zimbardo himself–got caught up in the role play, taking on the role of prison wardens, and initially refusing to release participants who were clearly at a breaking point. When various prisoner participants displayed evidence of serious psychological distress, the experimenters, rather than fulfilling their ethical obligation to treat and release them, resisted letting them go. Other parties, including parents who came to visit their “prisoner” children and a priest who was brought in to counsel the prisoners, fell into their roles perfectly. At no time did these outsiders question the experiment, nor did they argue for release of the participants.

Forty years after the fact, what lessons can we take from this experiment? When it comes to the relationship between a criminal defendant and his lawyer, the experiment may shed light on how roles affect attitudes and decision-making of the lawyer. In our criminal justice system, the criminal defense lawyer is the defendant’s greatest ally; the lawyer is her client’s advocate, and is in the best position to help the defendant-client. An important part of advocacy is respecting–or at least valuing the client. The more the lawyer views her client as dangerous or deviant, the more difficult zealous advocacy becomes. In a very real sense, the extent to which the attorney perceives her client as worthy of effort, the harder the attorney will fight for him. Accordingly, the lawyer’s attributions about the defendant ultimately influence the disposition of his case. To what extent do various aspects of the criminal justice system interfere with the relationship of a defendant-client with his lawyer? Does the jail or prison environment contribute to a degradation in this very important relationship? Do criminal defense attorneys experience an us-versus-them mentality similar to that developed in the Stanford Prison Experiment? Or was the attitude of the “guards” a function of the job these participants were given to “control” the “prisoners”? Perhaps the results of the experiment were unusual, an outlier. Or perhaps they apply only to prison employees — in which case we have a problem, but not with the attorney-client relationship.

The Stanford Prison Experiment should give us pause. We ought to use the results as a starting point for important conversations about how obstacles to effective lawyers for criminal defendants exist today. Public defenders are over-worked and under-resourced. We are accustomed to having that conversation. But perhaps there are even more insidious factors at play. The students who were playing the role of prison guard knew, to a certainty, that the participants were playing prisoners were not actually guilty of any crime. Now imagine the mentality of a criminal defense lawyer who has seen criminal defendants repeatedly plead guilty to charges. Imagine also that this criminal defense lawyer represents mainly in the indigent defendants, and is more often than not face with a situation in which resources for investigating the charges are scarce or nonexistent, making discovery of shoddy police work. mistaken identity, or mitigating factors difficult to discern. What happens to the presumption of innocence in the eyes of the one person who is appointed to fight for the rights of that defendant? If criminal defense lawyers struggle to overcome the biasing factors that can influence their attitudes about their clients, they can hardly be blamed. As Zimbardo and his colleagues taught us several decades ago, this is only human.

Two New Articles on Behavioral Ethics

Robert-PrenticeRobert Prentice, Chair of the Department of Business, Government & Society at the McCombs School of Business at the University of Texas at Austin and a founder of Ethics Unwrapped (which has produced some of the best educational material on behavioral ethics, including 3 dozen videos with teaching notes), has recently posted two new articles on behavioral ethics on SSRN. Both provide excellent discussions of the central tenets of behavioral ethics research and reinforce the importance of teaching ethics from a behavioral perspective.  They are well worth reading.

(1) Teaching Behavioral Ethics

Abstract: Teaching ethics is challenging and a teacher needs as many arrows in the quiver as possible. This article explains one approach to teaching behavioral ethics, a new and promising way of thinking about and teaching ethics. This approach focuses on helping good people minimize the number of bad things that they do by understanding how and why people make the ethical (and unethical) decisions that they do. The article goes into detail regarding the author’s idiosyncratic pedagogical approach, but contains lengthy discussions of recent research to serve as a resource for those seeking more familiarity with behavioral ethics so that they can form their own approaches. The article also highlights “Ethics Unwrapped,” a free ethics education resource that contains several videos that can be usefully applied to teaching behavioral ethics, as well as other ethical concepts.

(2) Behavioral Ethics: Can It Help Lawyers (and Others) Be Their Best Selves?

Abstract: Using the principles of behavioral psychology and related fields, marketers have changed human behavior in order to increase sales. Governments have used these same principles to change human behavior in order to advance policy goals, such as increasing savings behavior or organ donation. This article surveys a significant portion of the new learning in behavioral ethics in support of the claim that by teaching behavioral ethics we have a realistic chance to improve the ethicality of human decision making and actions.

Nudge: A Summary

Nudge-coverNudge by Richard Thaler and Cass Sunstein is well-known to the legal academy and, no doubt, to most everyone interested in behavioral economics and its influence on public policy. But if, perchance, you have not yet read it, or perhaps because of the planning fallacy the book is still in the queue on your bookshelf, then this well-written summary by the folks at EthicalSystems.Org may be of interest. It concisely summarizes the main themes of the book, chapter by chapter. Of course, it is no substitute for the book itself. But if you want (sorry, couldn’t help myself) a “nudge” to get to it, then this summary should be useful.

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Cognitive Reflection Test

NB:  This is a modified version of a post from another forum that might be of interest to readers of this Blog.

baseball bat66As part of my effort to explain the power and fallibility of System 1 thinking to my Professional Responsibility students, I provided them with the questions from Shane Frederick‘s Cognitive Reflection Test (CRT). For those not familiar with the CRT, it consists of three questions that help illuminate the errors that can occur through quick, intuitive thinking.

Here are the CRT questions [spoiler alert for those who haven’t seen the test, the answers with explanations are at the end of this post]:

(1) A bat and a ball cost $1.10 in total. The bat costs $1.00 more than the ball. How much does the ball cost?

(2) If it takes 5 machines 5 minutes to make 5 widgets, how long would it take 100 machines to make 100 widgets?

(3) In a lake, there is a patch of lily pads. Every day, the patch doubles in size. If it takes 48 days for the patch to cover the entire lake, how long would it take for the patch to cover half of the lake?

I’ll be curious to see how my students respond and whether they exceed the performance of the approximately 3400 undergraduate students who took the test in Frederick’s original study, which was 1.24 out of 3 (although there was a wide divergence of results, depending on the school). Interestingly, the undergraduates averaged slightly better than 252 trial judges in Florida who took the CRT as part of a study by Chris Guthrie, Jeffrey Rachlinski, and Andrew Wistrich, entitled Blinking on the Bench: How Judges Decide Cases.

The CRT is one way I’m exploring the foundations of BLE with my students. I’ll share others in the future (for example, this short video provides a quick overview of fast v. slow thinking). And, if anyone has used the CRT or other methods to teach any aspect of BLE, I’d be interested to hear about your experiences.

[As some may have seen, the CRT has generated publicity in the last few years for its role in studies of whether performance on the test predicts religious belief — here’s a sample].

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Here are the answers and explanations for the CRT provided by the authors of the Blinking at the Bench study (pp. 10-11, footnotes omitted):

“Each of the three CRT items has a correct answer that is easy to discern upon reflection, yet each also has an intuitive—but incorrect—answer that almost immediately comes to mind. Consider the first question. For many people, the answer that immediately jumps to mind is ten cents. Though intuitive, this answer is wrong, as a bit of reflection shows. If the ball costs ten cents and the bat costs one dollar more, the bat must cost $1.10. Adding those two figures together, the total cost of the bat and ball would be $1.20, not $1.10. Therefore, the correct answer is five cents—the ball costs five cents, the bat costs $1.05, and together they cost $1.10.

For the second question, the answer that immediately jumps to mind is 100 minutes. Though intuitive, this answer is also wrong. If five machines make five widgets in five minutes, then each machine makes one widget in that five-minute time period. Thus, it would take only five minutes for 100 machines to produce 100 widgets, just as 200 machines would make 200 widgets during that same period.

The third question immediately invites an answer of twenty-four days, which is wrong. The correct answer—obvious upon reflection—is forty-seven days. If the patch of lily pads doubles each day and covers the entire lake on the forty-eighth day, it must cover half the lake the day before.”

McCutcheon and Ethical Campaigns: The Behavioral Case for Funding Limits

Wednesday’s Supreme Court ruling in McCutcheon v. Federal Election Commission, the case in which the Court considered existing limits on an individual’s ability to contribution to political candidates, struck down overall financial contribution limits to political candidates, and aggregate limits to political parties. The holding was yet another blow to sensible regulation of money to influence elections, with echoes of the Court’s controversial ruling in Citizens United, four years ago. The Court’s definition of money as speech is sufficiently established that it is rarely seriously debated. But the most recent holding again raises the issue of how to define “corruption.” This definition is critical, because corruption is the only consideration accepted by the Court as legitimate in balancing against the free speech concerns raised by limiting campaign donations. The conservative bloc on the Court has again narrowed the definition of corruption, so that only quid-pro-quo, or the literal exchange of dollars for votes counts. Any other form of corruptive influence–the unequal exercise of power, the imbalance in the ability to communicate ideas, and the potential for wealthy donors to hold candidates and law makers hostage with the threat or inducement of campaign money–has been soundly rejected as a basis for regulation. Not only does McCutcheon threaten to increase the influence of wealthy donors over members of congress, it also makes in more likely that wealthy patrons can influence voters to elect their preferred candidates. Today, with the advent of so many modes of communication, the proliferation of political consultants, the dissemination of empirical research on how to strategically craft messaging to influence attitudes, the concern is that these dollars buy the ability to distort voters’ decision-making. More money in elections means the potential for an increase in the use of techniques such as framing, priming, anchoring, and the inducement of emotions such as fear to influence citizen attitudes. Political scientists, psychologist, law scholars, and communication specialist understand this potential. Americans without any particular expertise in this area perceive the pernicious influence of campaign money. Why doesn’t the majority on the Court?