Over the last number of years I have observed a lack of clarity of thought in the legal profession: lawyers who have not fully thought out their argument; lawyers whose written work does not logically lead to the conclusions they advance; lawyers who mount business development plans without direction; lawyers whose oral argument takes a 180 degree turn from their written argument without their seeming to have noticed.
We all know that we need knowledge and skills to succeed in the practice of law: substantive knowledge, writing skills, oral communication skills, negotiation skills, practice management skills, and business development skills, among others. Yet we persist in ignoring the skill that underlies and draws together all of the elements of a successful practice – thinking. Or rather, many of us assume we don’t need any help with our thinking; that it is somehow innate and immutable. We all went to law school. We got our call. We are practicing lawyers. Of course we can think. We think thinking is a given.
But what if it’s not?
Intrigued by the fuzziness of thought I noticed around me, I spent some time talking to academics and philosophers. I learned that thinking is a skill – just like writing, or marketing – and it is one at which we can all improve.
Fast, or “on your feet”, thinking is the kind you deploy in a high pressure situation, like in an intense negotiation or in submissions in court. Slow, or reflective, thinking is the kind we need when building our theories and strategies for our files. We use slow thinking when we have more time, but the stakes are no less significant than in high pressure situations.
Human beings employ shortcuts, like pattern-matching or emotional tagging, in our slow and fast thinking all the time. We must, in order to cope with the volume of information around us. Most of the time, these strategies are useful, but they can let us down too.
Shouldn’t we understand the tricks our brain uses to subconsciously advance our thought processes?
Doesn’t it make sense that understanding how our thinking works will improve it, and help us understand when to trust our judgment and when to question it? Or that it will help us understand the forces that may be at work in the thought processes of opposing counsel, the judge or our client? Picard had Troi, but in this world, understanding the natural thinking biases that guide human thought is the best we can do.
Thinking lies at the very heart of our profession. Everything about our practices – our ability to apply our substantive knowledge, our ability to write, our ability to effectively communicate orally, our ability to build a book of business – improves when our thinking improves. So why not think about your thinking? Imagine the power of what you might discover.
An OsgoodePD workshop on Thinking Fast and Slow: Strategies and Tools to Enhance Decision Making, will be taking place on Friday June 17, 2016 from 8:30am to 12:30pm.
JASMINE T. AKBARALI is a partner with Lerners LLP, where she practices in the Appellate Advocacy Group. She specializes in civil appeals and litigation opinions in a wide range of areas, including public law, commercial disputes, constitutional challenges, professional liability, employment, personal injury and lawyers’ professional and ethical duties.