Professor Molly Wilson
Co-founder of this blog, Molly J. Walker Wilson, has written an important article, Defense Attorney Bias and the Rush to the Plea, about psychological biases that infect the plea bargaining process. A topic near and dear to my heart (see here), Wilson’s article is a must read for anyone interested in the human behavior that drives what she describes as the “‘meet-em-and-plead-em’ culture of public defense.”
This summary from the article provides a snapshot:
This article challenges the current attorney-controlled, plea-bargain system of criminal justice and calls for a greater role for criminal defendant choice in pretrial decisions. The central claim of this Article is that defense attorneys are vulnerable to biases that influence their perceptions of their clients’ cases and predispose them to be overly favorable to plea deals. Giving defendants more voice in pretrial choices will lead to more pretrial investigation and fewer ill-advised plea deals.
Part II of this Article discusses the psychological biases that influence defense attorney decision-making. These biases include those resulting from repeat experience with the criminal justice system, biases associated with a desire to confirm existing beliefs, and biases that are motivated by a need to preserve one’s own positive self-concept. Part III delves into the phenomenon of the “meet-em-and-plead-em” culture of public defense. This Part outlines the features of the current crisis in public defense and explains how the lack of resources lead public defenders to pressure clients to take deals offered by prosecutors. Part IV introduces the problem of the innocent indigent defendant and explains why attorneys’ incentives to pressure clients to take deals can result in bad choices. Part V provides a closer look at how lawyers’ biases lead them to favor deals and how courts nevertheless routinely privilege attorney choice. Part VI proposes an alternative model, one in which the criminal defendant himself plays a dominant role in every major step in the criminal defense process. This Part reveals a number of advantages to a defendant-led defense, and provides a data-driven rationale for why the defendant, and not the attorney, should be in control of the decision process.
The articles produced in conjunction with New England Law Review’s symposium on Behavioral Legal Ethics are now available online. Thanks to all for helping to make this event such a success:
The final version of my article, Insights from Psychology: Teaching Behavioral Legal Ethics as a Core Element of Professional Responsibility, has been published in the Michigan State Law Review. It is available here.
The field of behavioral legal ethics—which draws on a large body of empirical research to explore how subtle and often unconscious psychological factors influence ethical decision-making by lawyers—has gained significant attention recently, including by many scholars who have called for a pedagogy that incorporates behavioral lessons into the professional responsibility curriculum. This Article provides one of the first comprehensive accounts of how law teachers can meet this challenge. Based on an approach that employs a variety of experiential techniques to immerse students in the contextual and emotional aspects of legal practice, it provides a detailed model of how to teach legal ethics from a behavioral perspective. Reflections on the approach, including the encouraging response expressed by students to this interdisciplinary method of instruction, are also discussed.
I’m happy to announce that the New England Law Review‘s fall symposium on November 10th will focus on Behavioral Legal Ethics. The symposium’s lead article, by Associate Dean Catherine Gage O’Grady from The University of Arizona James E. Rogers College of Law, is entitled “A BEHAVIORAL APPROACH TO LAWYER MISTAKE AND APOLOGY.” Response articles include:
- Professor Donald Langevoort, LAWYERS, IMPRESSION MANAGEMENT AND THE FEAR OF FAILURE
- Professors Nancy Sachs and Milton Regan, Jr., BEHAVIORAL ETHICS AND THE FOUR-COMPONENT MODEL OF MORAL JUDGMENT AND BEHAVIOR
- Professor Wallace Mlyniec, LAWYERING PRACTICE: UNCOVERING UNCONSCIOUS INFLUENCES BEFORE RATHER THAN AFTER ERRORS OCCUR
- Professor Tigran Eldred, MORAL COURAGE IN INDIGENT DEFENSE
Panelists at the symposium include Dean O’Grady; Professor Paul Tremblay (Clinical Professor of Law and Law School Fund Distinguished Scholar, Boston College Law School); Barbara Bowe, LICSW (Lawyers Concerned for Lawyers); and me.
Admission is free and open to the public.
For those of us who study behavioral legal ethics, one of the most important and relevant psychological findings is known as “motivated reasoning,” which is the unconscious tendency we all possess to reason our way to conclusions we prefer (I have written about motivated reasoning in a number of articles, including here, here and here).
In a new and important article, Professor Francesca Gino and her colleagues lay out the foundations of motivated reasoning in the context of ethical decision-making. Entitled Motivated Bayesians: Feeling Moral While Acting Egoistically, the paper explains how people often prioritize self-interest at the expense of morality, all the while convincing themselves that they are acting ethically. As they note in the paper:
[P]eople who appear to exhibit a preference for being moral may in fact be placing a value on feeling moral, often accomplishing this goal by manipulating the manner in which they process information to justify taking egoistic actions while maintaining this feeling of morality.
The paper is chock full of experimental evidence that supports these conclusions and is highly recommended.
It is available as part of a symposium on motivated reasoning in the Journal of Economic Perspectives. The paper starts on page 189 of the full symposium, which is available on Google Scholar (also recommended is the excellent introduction to the symposium by two notable experts, Nicholas Epley and Thomas Gilovich, which starts on page 133).
The role of the GM lawyers in the ignition switch case has received scrutiny, including by the legal ethics community. But, until now, the scandal has not been explored from a behavioral perspective. That has now started to change with the publication of Inside Lawyers: Friends or Gatekeepers, Professor Sung Hui Kim’s most recent consideration of the role of inside counsel. The article, which responds to a critique of her views about the gatekeeping role of inside counsel, once again explores why lawyers (such as in the GM case) possess a host of psychological biases that make it difficult to uncover and report misdeeds committed by others inside an organization. Prof. Kim’s current article, as well her earlier work that explore these psychological phenomena in more detail (see here, here and here), are a must read for anyone interested in the behavioral aspects of corporate legal ethics.
Recent research has added interesting dimensions to important components of behavioral legal ethics. For example, researchers from Bar-Ilan University recently sought to determine whether certain types of conflicts of interest can be reduced through deliberative forms of reasoning – such as making people explicitly consider the costs of succumbing to the conflict or appealing to their sense of morality about the conflict. See Yuvel Feldman & Eliran Halali, Can We Regulate ‘Good’ People in Subtle Conflicts of Interest Situations, available at: http://ssrn.com/abstract=2536575.
According to the results, “subtle” conflicts of interest produced by slight financial incentives can be reduced through these types of explicit interventions. To be sure, this is only one study and its external validity needs to be assessed. Yet, if its findings can be replicated, especially in the types of situations where lawyers face real world conflicts, it suggests that the errors produced by bounded ethicality can be reduced (at least in some instances) by explicit forms of reasoning.
Here is the abstract provided by the study’s authors:
The growing recognition of the notion of ‘good people’ suggests that many ethically relevant behaviors that were previously assumed to be choice-based, conscious, and deliberate decisions, are in many cases the product of automatic/intuitive processes that prevent people from recognizing the wrongfulness of their behaviour – an idea dubbed by several leading scholars as an ethical blind spot. With the rise of the focus on good people in psychology and management, the lack of discussion on the implications of this growing literature to law and regulation is quite puzzling. The main question, this study will attempt to explore is what are the implications of this literature to legal policy making. We examined, experimentally, using two m-Turk studies, the efficacy of deterrence- and morality-based interventions in preventing people who are in subtle conflict of interest from favoring their self-interest over their professional integrity and to behave objectively. Results demonstrate that while the manipulated conflict was likely to “corrupt” people under intuitive/automatic mind-set (Experiment 1), explicit/deliberative mechanisms (both deterrence- and morality-based) had a much larger constraining effect overall on participants’ judgment than did implicit measures, with no differences between deterrence and morality (Experiment 2). The findings demonstrate how little is needed to create a risk to the integrity of individuals, but they also suggest that a modest explicit/deliberative intervention can easily remedy much of the wrongdoing.