This blogpost will no doubt upset those who always think they are right, or know better. Worse still, those who have a certain outlook on life and an understanding of justice and truth, may find that their perception of things according to them, is not the same perception of matters considered according to a court of law.
It is aimed not only at litigants’ in person, but for those engaged and embroiled in litigation in the Courts of England and Wales.
According to Nobel prize winner Daniel Kahneman in his outstanding book, ‘Thinking, Fast and Slow’, which I highly commend you to read:
‘Social scientists in the 1970s broadly accepted two ideas about human nature. First, people are generally rational, and their thinking is normally sound. Second, emotions such as fear, affection, and hatred explain most of the occasions on which people depart from rationality’. (Kahneman D, 2011, p8)
Amos Twersky posed the question: ‘Are people good intuitive statisticians?’ (Kahneman D, 2011, p5 )
What does it matter to you , because you are right and your sense of justice is right. Right?
‘An individual has been described by a neighbour (sic) as follows: ‘Steve is very shy and withdrawn, invariably helpful but with little interest in people or in the world of reality. A meek and tidy soul, he has a need for order and structure, and a passion for detail’. Is Steve more likely to be a librarian or a farmer?’.
We all have stereotypes and biases. Libraries are supposedly quiet well-ordered places. The books need to be referenced in a certain way which requires a good idea for methodical detail. One would think therefore, that the description of Steve resembles that of a librarian. This is a predictable bias which does not take into account the number of farmers to librarians in a given area.
Now put into place statistical considerations. Steve lives in the USA. There are more than 20 male farmers for each male librarian in the United States. There are therefore many more farmers than there are librarians, and Steve is likely on a balance of probabilities applying statistical analysis to be a meek and tidy farmer, than he is to be a librarian.
Applying the views of cognitive and social psychologists, intuitive thought is dominant in the way that we all think.
‘We are prone to overestimate how much we understand about the world and to underestimate the role of chance in events. Overconfidence is fed by the illusory certainty of hindsight’. (Kahneman D,2011, p13).
Now a question for you. Off the top of your head, what is 17 x 24?
Ok, you don’t know the precise figure. You know that the figure is not going to be a five or six digit answer. 10 x 10 = 100. Easy! 17 x 24 = ???, but it will not be ?????, or ??, or ? ?????.
You know that by writing down and multiplying the two figures, mathematical steps were involved. Steps which you learnt when at school. This was an example of slow thinking.
It was not just your mind at work:
‘The computation was not only an event in your mind; your body was also involved. Your muscles tensed up, your blood pressure rose, and your heart rate increased. Someone looking closely at your eyes while you tackled this problem would have seen your pupils dilate. Your pupils contracted back to normal size as soon as you ended your work – when you found the answer, or when you gave up’. (Kahneman D, 2011, p20)
Keith Stanovich and Richard West, psychologists, proposed two systems in the mind namely system 1 and system 2.
System 1 operates automatically and quickly, with little or no effort and no sense of voluntary control.
System 2 allocates attention to the effortful mental activities that demand it, including complex computations. The operations of system 2 are often associated with the subjective experience of agency, choice, and concentration.
We perceive ourselves to be system 2. ‘the conscious, reasoning self that has beliefs, makes choices, and decides what to think about and what to do’. (Kahneman D, 2011, p21)
System 1 is however, the dominant player in our thought process. That is, ‘the effortlessly originating impressions and feelings that are the main sources of the explicit beliefs and deliberate choices of system 2’. (Kahneman D, 2011, p21).
Automatic activities attributed to system 1 include:
‘Detect that one object is more distant than another; orient to the source of a sudden sound; complete the phrase ‘bread and…’; make a ‘disgust face’ when shown a horrible picture; detect hostility in a voice; answer 2+2=?; read words on large billboards; drive a car on an empty road find a strong move in chess; understand simple sentences; recognise that a meek and tidy soul with a passion for detail resembles an occupational sterotype’.
According to Kahneman, we are built to perceive the world around us, recognise objects, avoid losses, and fear what might be harmful to us.
Now apply system 1 to a situation in which you are in a state of the unknown. You do not know the outcome. There is considerable financial risk, and risk to reputation. The loss could be your reputation, your pride, your view of how people see you, money, your family, your home. The list is endless. You wind yourself up either to fight or to flee. Do you attack? Do you run away? Do you ignore what is going on around you in the hope that things said and demanded of you might simply go away and fall into oblivion.
Without implementation of system 2, you make choices and decisions under pressure which you may not have done, had you thought a bit more deeply and objectively about the dispute you are involved in.
2+2 = 4.
Under pressure, avoiding losses? You have a piece of evidence we will call 2. You have another piece of evidence which you perceive to be, say 2.3, and you come to the answer as 4.3 because that is your perception of things, and that is the weight you have placed on evidence to give you a figure.
You may say that the answer 4.3 is close enough to 4, and the Judge after all, is human, and will side with you because you are the disadvantaged party without funds, without resources. Justice will prevail. Even though the answer is 4, 4.3 will be good enough for you to win. Really?
…and this is the conundrum I face with people who think they are right, and that everyone else is wrong. It sort of adds up, but when checked against other factors with deeper more objective thinking, you realise that 2+2=4, and 2+2.3=4.3 and that what you needed to demonstrate your case is 2+2, but that is not what you have. 4, is not 4.3 is it?
In case I have lost anyone Kahneman gives the example of a bat and a ball together costing $1.10. If the bat costs $1 more than the ball, how much does the ball cost? The immediate answer is $0.10. That is representative of system 1. Do the maths. Go through the logic of the answer. If the total cost is $1.10, and there has to be one whole $ more, the ball must cost…$0.05.
There will be people who read this and say I have the figures wrong. There will be others who will never understand why it is. Re-check the figures.
System 2 requires attention and focus, rather than an intuitive feeling, an automatic system 1 thinking process.
Examples of system 2 include monitoring the appropriateness of your behaviour in a social situation, comparing overall values of two washing machines, and checking the validity of a complex logical argument.
The first thing that pops into your head, as to how you feel about something, and what should be done, with a tempering of the heat of an argument, and a deeper clearer thinking of the situation, may give you a different result.
There is good reason to consult someone independent and objective to your case in the hope that they apply system 2. That is not always the case however.
Kahneman asserts that since system 1 operates automatically and cannot be turned off voluntarily, errors of intuitive thought are often difficult to prevent. ‘Biases cannot always be avoided, because system 2 may have no clue to the error’. (Kahneman D, 2011, p28).
We have all seen (I hope), the Invisible Gorilla, whereby a group of people stand in line passing a ball from one to the other, and you are asked to count the number of times the ball passes, whilst someone in a gorilla suit jumps in and out of the crowd and waves his/her arms. Surprisingly, many if not most people miss sight of the gorilla. The gorilla becomes invisible.
Sometimes a litigant in person becomes obsessed with a certain ruling, or a certain observation of something, and completely misses the proverbial elephant in the room, or in the example cited above, the gorilla.
A good litigant will engage system 2. They will know not to rely or engage upon their initial thoughts generated by system 1, but instead to ‘sleep on it’, and to slowly and logically think things through.
I very much hope that I have given some food for thought. When you make decisions under pressure, or under extreme emotion, with a prospect of significant potential loss, mistakes can be made and it is good not to follow your heart and act intuitively, but to employ other modes of thinking to see the argument from different angles and in different ways, to re-check what you originally thought.
By doing so, your perception of right, might just be wrong….
This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.
Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is strategic legal advisor for Help4LiPs, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.