The Hidden Brain and the Legal Profession
Podcaster Shankar Vedantam on the ways the unconscious mind influences our response to change
Close your eyes and think of two things that, if you start doing differently, would make your life better. Now ask yourself, “Why aren’t you making the change?”
We often know what we need to change, but we don’t do it. Yet once we’ve made the change, we wish we had done it sooner.
This gap between insight and action is one of the concepts around change that celebrated journalist and host of the Hidden Brain podcast Shankar Vedantam explored with legal audiences at Everlaw Summit ‘24.
In a fireside chat with Emmy-award winning journalist Thuy Vu, Vedantam delved into the invisible forces that influence the decisions we make, including as legal professionals, and overcoming the barriers to our ability to adapt at both the personal and organizational level.
Bias and Noise in the Legal Profession
Much of what our brains do is hidden from us. Vedantam says this "hidden brain" influences the decisions we make. For legal professionals, this has real-world consequences when they make decisions in various contexts, including client-attorney relationships and the courtroom.
Concepts such as bias and noise warrant particular caution in the legal profession, he said.
Bias – involving unconscious associations about people or groups of people – affect judgment often without our awareness. Many have hidden assumptions about who can become the president of the United States, for example. We may not be conscious of any rule that dictates that it be a man, but our hidden brains learn to associate leadership with masculinity.
An even more important problem, Vedantam said, is noise – the unwanted variability in professional judgments. In studies described by Nobel Prize-winning psychologist Daniel Kahneman called “noise audits,” judges were asked to make sentencing decisions in a number of identical cases. The average sentence that came down from the judges was about seven years, but the variation between one judge and a second judge was about three years: one judge handed down a two-year prison sentence while another issued five. What’s more, noise was detected within a single human being so that the same judge on Monday ruled differently on a Thursday.
“Perhaps this is not a surprise to you. You're aware of the role of noise in the legal profession,” Vedantam said. “But for a civilian like myself, that's horrifying.”
Legal professionals in law firms and the courtroom need to use metrics to detect both bias and noise, Vedantam said. “And certainly when it comes to noise, a recommendation that Daniel Kahneman would make – which lawyers and judges hate – is that you need to allow yourself to follow guidelines much more often than your own intuition.”
Change Requires Mental Effort
It’s a paradox that while change is often good for us, we tend to be wildly resistant to it.
Vedantam traced the reasons in part to human biology. Over the course of human evolution, calories have been scarce, with famine and extinction a real risk. The brain, he pointed out, is one of the biggest consumers of energy in the body. As such, it’s learned to conserve energy to support survival.
Change is hard because it requires mental effort. It involves failure and discomfort. And the brain, which operates on a shoestring budget, is resistant to that.
Another factor at play is an individual’s level of trust in the payoff for going through the effort of change. Vedantam described results in a revised marshmallow test by University of Rochester researchers, where children were promised a second marshmallow if they resisted eating the first one. But when they did not get the second marshmallow, they were less likely to delay gratification the next time around.
Vedantam said this test indicated that our ability to do the difficult thing now for reward later is not just a question of impulse control, it’s also tied to the stability of the world around us.
“Every change that you have in an organization is a larger version of the marshmallow test,” he said. “You can blame people for being stubborn and you can accuse them of suffering from inertia, but very often people who are resistant to change have been burned in the past.”
Rebuilding bonds of trust within organizations tends to be a very important factor in driving change, he said.
Different Kinds of Change Call for Different Forms of Leadership
Where do leaders run into trouble? Confusing technical problems with adaptive ones, which can lead to ineffective solutions and frustrated teams.
“When you're confronting a problem in a workplace, it's very important to diagnose these two problems,” Vedantam said. “We try and impose a solution top down, and then we're mystified why the solution doesn't work.”
Technical problems are straightforward. Think of tasks like building a bridge or performing surgery. These, Vedantam said, are problems that experts can solve using well-established methods. In these cases, a top-down approach works well, as the solution is clear and doesn't require much input from others.
Adaptive problems, on the other hand, are more complex. They involve human behavior and require the people affected by the problem to be part of the solution, he said. For example, overcoming addiction or helping a child with their homework may seem similar to technical problems at first glance, but they actually require a much more collaborative approach. The solution needs to be tailored to the individual and their specific context, and the people involved must actively engage in the process.
“When you’re working with adaptive problems, you’re sharing the solution with the people whom you’re trying to lead,” Vedantam said. “In a technical problem, you’re able to impose a solution top down because, in fact, it’s a problem that’s been solved before.”
Change Takes Time and Conscious Endeavor
Change is more complex than we realize, especially in professional settings like the law. The insights that Vedantam shared at Everlaw Summit '24 shed light on the ways human brains make adaptation to change paradoxically harder to take on, even when it’s good for us. As technology drives more dramatic change in the legal profession, we’ll need to understand how our analog brains, amazing as they may be, can get in the way.
Vedantam's points – echoing the themes explored by conference speakers and attendees – are especially salient today, when the legal profession stands on the cusp of dramatic change that will call for partnership, collaboration, and a very conscious effort from leaders and individuals to bring their teams along.
