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Recently I was told by a person trying to convince me that an illogical but emotional appeal will have no effect upon a jury because logic has a way of overcoming emotional decisions.  I wondered if that really could be true since I have always believed that persuasion involves one part logic and two parts emotion.  I set about to investigate this issue and thought I would report some interesting observations about logic.

Before I show some observations, I would like you to answer logically and as quickly as you can, does the conclusion follow from the premises?

All roses are flowers

Some flowers fade quickly

Therefore, some roses fade quickly.

According to research, the majority of subjects would endorse this syllogism as correct.  The reality, however, is that the logic is flawed.   This is simply because it is possible that there are no roses among the flowers that fade quickly.

In this example, the plausible answer comes quickly “logically.” Overriding that logic, however, is hard work.  According to author Daniel Kahneman, in the book Thinking Fast and Slow, “This experiment has discouraging implications for reasoning in everyday life.  It suggests that when people believe a conclusion is true, they are also very likely to believe arguments that appear to support it, even when those arguments are unsound.” 

According to Mr. Kahneman, there are two systems of “logic” or “thinking.”  Both are in use all the time.  System 1 — intuitive thinking; and system 2 –analytical thinking.  At any time, the mind can switch between the two, yet the person believes that he or she is still being analytical.  People accept system 1 conclusions unless forced to recognize the answer in system 2.

Take another example.

here is a simple puzzle. Do not try to solve it but listen to your intuition:
A bat and ball cost $1.10.
The bat costs one dollar more than the ball.
How much does the ball cost?” (p. 44)

Probably, the number ’10’ came to your mind. The correct answer, you think, is 10 cents.

But the correct answer is actually ‘5’ – 5 cents. System 1 intuitively takes control and answers 10.’  Only when system 2 gets to hard work, will the real answer come about. 

In this study, more than 50% of students at elite and intellectual colleges such as Harvard, MIT, and Princeton gave the intuitive—incorrect—answer. At less elite universities, the rate of incorrect answers was in excess of 80%.

The consequences of this “logic” is staggering in the legal field.  First, juries are not necessarily the elite thinkers.  They are a group of unwilling participants who are comprised of all demographic parts of society.  They — just as the average college student — are more likely to succumb to the easier path of intuition.

Second, when trying to persuade a jury or others, you must be aware that a logical argument may not be the right course to persuade them to the decision.  The reality is that the argument should have the appearance of logic so that the jury can accept it as being logical even though it may not be logical.  Is that logical?  Maybe, but it sure is intuitive.  You need to combine both a logical element and an emotional element in every argument.

By Steven G. Mehta

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By Steven G. Mehta

It always fascinates me how the small things can make subtle differences in the way we make decisions.  I always think about these issues and how negotiators will make decisions.  One metaphor I recently thought about was the one of washing hands — I am washing my hands of it — That metaphor suggests that once you have washed your hands you will no longer worry about the matter.  Recently I came upon a study that shows a very interesting connection between washing hands and decision making.

Here are a few excerpts of an interview regarding the research:

MR. LEE:  Essentially people are focusing on the positive features of the chosen option and the relatively negative features of the rejected option. And as a consequence, they come to like the chosen option even more after they make the choice, compared to before they make the choice. This is called choice justification.

What our studies showed was that when people are not given a chance to wash their hands, they show this classic pattern, you know, as found in hundreds of previous studies. But once you give them a chance to wash their hands, they no longer have any choice justification tendency. They do not feel the need to say to themselves: I made a right choice.

FLATOW: Right, and you found that the act of washing your hands affects your choice. Does it make you rethink – or is it the act of just standing there, does it make you think about things, or does it make you focus on something else totally, like washing your hands, and that may affect your choice?

Mr. LEE: Right. It’s a very interesting thought. I think that it not only distracts you a little bit, I think that it does have this feeling of removing past concerns, and it allows you to sort of move on, and the reason is metaphorical connection.

Now, think back about the washing-away-your-sins metaphor. Psychologically what seems to be happening is that the physical experience of removing germs or dirt or contaminants on your hand is used to provide a basis for an abstract kind of experience, removing residues from your past immoral behaviors. So that’s in the case of morality.

Now, in the case of choice, it seems that when people are washing away things, physically washing away things off their hands, they’re also abstractly washing away mental residues from their past decisions. So I think that that is what’s going on, and that’s why it has the power of freeing people from concerns about past decisions.

FLATOW: So you’re saying it is the actual, the water that’s important here. So if you were distracted by playing with a Rubik Cube or chopping vegetables for dinner that night, you would not expect the same reaction, the same…

Mr. LEE: We would not expect the same reaction. You’re absolutely right. And in fact, in the honor group that did not wash their hands, in some ways they were distracted because they were looking at a bottle of hand soap, evaluating the, you know, how attractive they found the bottle of hand soap and so forth. So they were distracted by other thoughts.

FLATOW: So are you saying that this morality factor, is that built into us, washing our hands of something, or is it something that we learn and we pick up as we get older?

Mr. LEE: I think that there’s – chances are that people learn it, because the human mind works like this. There are thoughts that are intangible, they are very difficult to grasp. Morality is a complex phenomenon, and it seems that in the past few years there’s been increasing research suggesting that for complex ideas, abstract thoughts like these, we rely on the physical experience to help us make sense of them.

FLATOW: So don’t wash your hands.

Mr. LEE: It depends on the goal, though, because if all of a sudden our goal changes to a short-term goal of having a fair assessment of different options available on your table, then remember the original pattern of choice justification is that you focus on the positive features of the chosen option and the relatively negative features of the rejected option.

In other words, you have a more biased view of these available options. Washing your hands allows you to have a more accurate, fair assessment of these options. So if that’s the goal, washing your hands would do you a favor.

FLATOW: So if you’re not sure about your decision, and you want to rethink it, then you should go wash your hands.

Mr. LEE: I think so, to the extent that you have not committed yourself to a certain choice, because choice justification kicks in when you feel that you have committed yourself to certain, to one option already. Just like, you know, I’m going to buy this car now, and you start thinking to yourself, oh yeah, this car really is more attractive and the power and efficiency and so forth, right. But if you haven’t made that decision yet, I don’t think that choice justification, the mental work, has started occurring.

Too see the full interview, click on NPR here.

This research has some interesting consequences on mediation and negotiation research.  What if you had a person who was having buyer’s remorse after signing papers for a deal.  Part of the negotiation process is making sure that the client doesn’t second guess the decision and try to break the deal later.   How would washing hands work in that context?

As noted by the author, perhaps you might avoid washing hands when the decision is solid in the person’s mind, but try to encourage it when the decision isn’t.

I have also used other physical acts such as packing away written materials into an envelope and sealing it as a small way of trying to get people to have closure.  Perhaps there may be other ways also.

By Steven G. Mehta

I recently saw an interesting essay on anger, its cause, and the reasons behind it that I thought you might like by author PAVEL G. SOMOV, PH.D.  Here is a brief excerpt:

By the time we get out of kindergarten we have a sneaking suspicion that there is more than one take on reality.  This realization (that things are not black and white) pretty much crystallizes by the time we get out of the high-school.  What starts out as a clear-cut case of pain and pleasure and right and wrong year after year becomes progressively more nuanced and subtle.  As we learn the befuddling lessons of life, we become more tempered, more tentative.  We begin to appreciate that Socratic epistemological modesty of only knowing that we don’t know anything.  As we cultivate this philosophical doubt and dress-rehearse “who knows?” shrugs of nonchalance at the absurdity of life, we secretly yearn for certainty.  That’s why we relish anger.

Authentic anger comes from total conviction in your cause, however serious or trivial it might be.  It is pretty much impossible to be really angry and in doubt.  Anger is beyond doubt.  Anger is certainty.  Anger is a moment of crystal clarity.  And that is its infectious emotional allure.  Anger – unless you are faking it – is a rare moment of feeling that you are absolutely and unquestionably right.  Anger is righteousness.

To read more, click here.

By Steven G. MehtaSteve Mehta

Recently, I’ve been investigating the issues of the different parties perceptions in litigation and mediation. Oftentimes, you will hear phrases such as “this isn’t a lottery,” or “it’s really about the compensation to the family.” On many occasions, the attorneys for both sides will express that they believe the case is about money at the end of the day. However, during many mediations, I have felt that from the plaintiff/claimant’s perspective, it is often more about other things than the money.

In further pursuit of this investigation, I’ve started to read a book entitled Perceptions In Litigation And Mediation: Lawyers, Defendants, Plaintiffs, And Gender Parties by Tamara Relis.  This book conducts independent research as well as compiling the prior research in this field.

One of the interesting results of this research is that the aims of the claimants in litigation appears to be substantially different than what the attorneys on both sides perceive. It appears that neither the plaintiff nor the defendant’s attorneys are fully aware of the true nature of the aims and desires of the plaintiffs. Moreover, somewhere along the line, however, it is possible that the claimant’s interests may have changed.

graph

The following charts summarize some interesting findings regarding perceptions of the plaintiff’s litigation aims in medical malpractice cases.  This first chart describes the opinions of physician attorneys as to the motivation of plaintiffs in bringing a lawsuit  As you can see, most physician’s attorneys believe that money is the primary motivating factor for bringing a lawsuit.

The Second chartgraph (2) asks the same question, but this time to lawyers representing hospitals in medical malpractice case.  There is some difference between the perceptions of the physician and hospital lawyers.  Interestingly, the hospital lawyers looked at other motivating factors that the physician lawyers did not consider.  Moreover, less hospital lawyers focused on money as being the sole consideration.

When Plaintiff lawyers were polled, an even further difference is seen as to the perceptions of what the plaintiffs wanted out of litigation.  This may be possible because the plaintiffs lawyers may have a closer connection to their clients than the defense attorneys.  It is also interesting to note that no matter what side, each of the attorneys (regardless of side) considered monetary goals as being one of the primary goals of the plaintiffs.

graph (3)

Finally, when the claimants or plaintiffs were polled, they responded very differently than what the attorneys believed.  As you can see from the chart, only 24% of the claimants or plaintiffs polled considered money to be the primary or sole focus of why they brought  a lawsuit.  It is also interesting to note that out of all of the  attorneys, only 17% of the plaintiff’s lawyers (and no defense attorneys) mentioned that plaintiffs wanted defendants to admit fault or accept responsibility.  Whereas, on the other hand, 59% of claimants stated that they wanted the defendants to admit fault or accept responsibility.  Similarly, very few attorneys identified the issue of never wanting the incident to happen again or obtaining answers or explanations as a reason for litigation. Yet both of those categories also were stated in more than 50% of the claimants’ responses. As another example of a disconnect between the attorneys’ and the claimants, not a single physician or hospital lawyer ever mentioned the issue of an apology and only 17% of the plaintiff’s lawyers made such mention. Yet an apology was mentioned by 41% of the claimants.

graph (4)In analyzing this data, Ms. Relis also made some interesting observations. She stated as follows:

“Plaintiffs’ lengthy accounts of their motives and objectives for litigation demonstrated that their extralegal aims of principle remained important objects of plaintiffs’ desires throughout the processing of their cases. This was notwithstanding their lawyers’ delineations of what the litigation system could provide, the legal reformulation of plaintiffs’ cases, or the passage of time.”

Other research in this field has also found similar results. For example, in 1995 a survey was done of plaintiffs in Britain which found that “prevention of similar occurrences, physician acknowledgment, admissions that something had gone wrong, and answers were objectives most often rated as “very important.” Likewise, another British survey of plaintiffs found that only 17% of claimants described compensation as a reason for suing.

One study in Florida of 127 perinatal injury plaintiffs found that money was only an objective and 24% of the cases.

Other research not involving medical malpractice have also mirrored similar results. For example, a 1998 study of sexual assault claimants found that “most claimants discussed therapeutic as opposed to monetary goals. They frequently wanted to be heard; they wanted validations of their experiences, public declarations of the wrong, closure, retribution, apology, and to deter similar events. One study of small claims courts has also demonstrated that litigation may be used to express feelings, to let off steam, or for moral vindication and may have a symbolic or psychological value.

One set of researchers, Merry and Silbey, argued based upon their research “that it is misguided to assume that plaintiffs choose various paths on the basis of rational calculation of stakes, costs, and probable results alone, as to this must be added the noneconomic reasons for litigating, which include respectability, responsibility and being a good individual.”  In fact, according to some researchers, “the fact that the formal justice system does not deal with litigants’ perceived requirements and real objectives, including the nonmonetary agendas, has been found to be a major reason for litigants’ dissatisfaction” with litigation.

Ms. relis also observes that:

“Some plaintiffs may have sought compensation as a signal of being heard and acknowledged or as a deterrent to future conduct. Yet, through litigation, these principles were ultimately manifested in money alone, in a system that was repeatedly described them as one which could only provide financial compensation for their harm. Consequently, plaintiffs who also mentioned pecuniary recompense when speaking of their litigation aims at the same time and vehemently stressed, “it’s not about the money!”

Ms. relis concludes this chapter in her book by indicating that plaintiffs’ primary concerns in litigation were non-monetary. However, the civil litigation system did not provide for remedies relating to the nonmonetary needs and issues. Further, lawyers conditioned their clients on the realities of the legal system preparing them to expect only money instead of nonmonetary issues.  As a result of that conditioning, plaintiffs lawyers may also serve to cement their own convictions that financial compensation is either entirely or primarily with their clients seek. In turn, this may affect how the plaintiffs lawyers present the case to the opposite side.

Ms. relis concluded this chapter by stating “Thus, a paradox of legal entitlement is that plaintiffs who engage the power of the legal system lose control of their disputes to that same power as their cases are reformulated, reinterpreted, and renamed, altering meaning and also consequences.”

This research has several ramifications in the mediation and negotiation context. First, it is important for all attorneys to understand that the monetary issues (although important to the defendants) are not as important to the plaintiffs. However, the monetary issues will gain importance as a symbolic statement that reflects the other nonmonetary concerns that were raised by plaintiffs. For example, it is common to hear in a mediation that the amount of money symbolizes the extent that the defendant has taken responsibility for its actions. It would be helpful for attorneys to try to evaluate how to separate monetary issues from the nonmonetary issues to see if there is an opportunity for settlement resolution.

This is not to say that monetary issues will not be relevant in the negotiation or mediation. They will continue to maintain relevance because the matter is now raised the litigation context. As such, it is important to address both the monetary component of resolution/settlement as well as the nonmonetary component.

By understanding the reasons for why litigation has been brought in the first place, the parties can better understand how to arrive at a resolution of that litigation. Given this research, it might be helpful for attorneys to think about some of the following items as well as monetary issues to assist in the resolution of medical injury case:

  • Will a genuine apology assist in the negotiation efforts?
  • Would it be helpful to have a joint session between the parties where the claimants can ask questions of the defendants?  Would such a meeting require the presence of attorneys?
  • Can better communications between healthcare providers and the claimants (and claimants family) help to avoid litigation?
  • Can the parties discuss how such an incident would be prevented in the future?

I have always believed that nonmonetary issues are often more important to the plaintiffs than the monetary issues. This research has confirmed my beliefs in that regard.  it is also important that the monetary issues are often the most important issues to be insurance defendants representing healthcare providers. As such, there is a great chasm that must be filled during mediation in order to arrive at a resolution of both the defendant’s interests as well as the plaintiff’s interests.  A mediator who handles these disputes must be able to maneuver between these two countervailing interests if he or she wants to have any chance of resolving the dispute.


Steve’s Book

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