Given that lawyers deal so much with human behavior in their daily work, you'd think law students would be required to have a strong grounding in psychology. Unfortunately, that's not the case.
Even though behavioral science offers great insights into many of the issues practicing lawyers confront — from eyewitness testimony to interviewing and counseling clients — "law school courses do not usually focus on the part of the job that involves understanding human psychology," says psychologist Jennifer K. Robbennolt, PhD, a professor of law and psychology at the University of Illinois College of Law.
Robbennolt is working to change that. She and Jean R. Sternlight, a law professor at the University of Nevada Las Vegas Boyd School of Law, have co-written "Psychology for Lawyers: Understanding the Human Factors in Negotiation, Litigation, and Decision Making" to give students and practicing lawyers a crash course on the psychology-law intersection. The book details psychological research relevant to such key aspects of legal practice as persuasion, ethical lapses, judgment, decision-making, communication and the need to use empirical methods to inform practice rather than intuition or trial and error as many lawyers do.
The Monitor asked Robbennolt about the psychological research that can most benefit lawyers and about opportunities for psychologists at the intersection of the two fields.
What do you think lawyers are most naive about when it comes to behavior?
Lawyers have a wealth of experience about how people behave — and a lot of information about how to be a good lawyer is passed down from attorney to attorney. But as psychological research shows, people tend to overestimate their ability to learn from experience. So, we think it is really important that lawyers recognize the limits of these ways of honing their craft.
Given that lawyers spend most of their time interviewing, counseling, negotiating with and trying to persuade other people, it is really important that they think about what the science says about how people think and behave and how that might inform the way they think about best practices.
What special insights does psychological research have for lawyers in regard to how emotions influence thinking and behavior, including lying?
Psychologists know that emotion permeates everything we do. This is certainly true for the types of situations that lawyers tend to encounter — disputes that are clearly emotional, such as divorce, personal injury, breach of contract, discrimination or criminal charges, but also such matters as the incorporation of a business, an adoption or estate planning. Lawyers need to know how emotions can complicate decisions that they and their clients need to make, even when the decisions may not have an obviously emotional aspect.
At the same time, psychological research can also help lawyers understand the ways in which they can use emotions — their own emotions or their clients' — as a source of information or motivation, as a way to communicate with others, or as a window into different ways of approaching an issue. For example, an attorney might use her client's emotional reaction to a proposal as a source of information about the client's priorities. Or the attorney might structure her time to draw on the effects of different moods — brainstorming when she is in a positive mood and doing detail work when she is not.
All of this is complicated by the fact that lawyers — like most of us — have a hard time accurately gauging other people's emotions. This has many consequences, including miscommunication, but is also one reason why it can be very difficult to tell whether someone is lying. We help readers of our book better understand and use emotions by highlighting the functions of emotions as well as their costs, and by describing the complex ways that emotions can be experienced. Research finds that being aware of emotional triggers, using distraction or trying to reappraise the situation can be more effective at managing emotions than suppression, venting or rumination.
Your book also discusses the balance between lawyers' productivity and well-being. Why did you include this?
Some lawyers and legal educators are concerned about dissatisfaction in the legal profession and what might be done about it. Psychologists can inform those discussions with research on subjective well-being, the notion of "grit," the ways people can choke under pressure and how we manage our time.
Lawyers don't tend to get much preparation in how to manage these aspects of their practices, but the psychological literature provides much practical advice about how to effectively use deadlines, the dangers of multitasking, how to structure group decision-making processes, and the importance of and impediments to learning from mistakes, to name just a few relevant areas. Psychology also teaches broadly that well-being in one's job turns on the degree one can find autonomy, competence and challenge, interest and variety, and meaning in one's work.
What does the literature tell us about the skills needed to be a successful lawyer?
A recent collaboration between law professor Marjorie Shultz and psychologist Sheldon Zedek, PhD, has shed a lot of light on that question. They identified a set of skills that many of us might associate with lawyers: They are good reasoners, skilled legal researchers, effective writers and speakers, good negotiators and dedicated advocates. But their research also identified qualities that many people might not automatically associate with lawyers: That they are innovative, entrepreneurial and good problem-solvers.
Good lawyers are also effective at developing relationships with clients, staff, colleagues and others. And they are skilled at perspective taking, engaged and passionate about what they do, good at managing stress and able to act with a high degree of integrity. We are struck by how relevant psychology is to every single one of these aspects.
As you wrote this book, did you identify any opportunities or career niches for psychologists who are interested in law?
Yes. Already, many psychologists serve as expert witnesses on substantive issues in litigation or as experts with regard to various aspects of the legal process — such as eyewitness identification.
And many psychologists also serve as trial consultants. The popular perception of trial consultants tends to center on jury selection, but psychologists can and do contribute much more. Psychologists can use their knowledge and skills to help lawyers prepare witnesses for depositions — helping witnesses tell their stories effectively, helping them overcome habits of poor communication and manage their anxiety or overconfidence, and so on.
Psychologists can also help attorneys more effectively interview and counsel their clients, craft persuasive arguments, design effective exhibits or conceive useful analogies.
Where should psychology focus more attention?
There is really no area of law or legal practice that couldn't benefit from more psychological research. Psychologists have tended to focus primarily on topics like jury decision-making, eyewitness testimony and criminal law. Much less attention has been paid to other areas of law — areas like property, tax, estate planning, intellectual property, contract law, constitutional law and many more — although this is slowly starting to change.
Psychologists can also pay more attention to lawyers' daily activities. Trials are relatively rare. Instead, lawyers spend much of their time interacting with clients, doing discovery or due diligence, negotiating, writing and managing their caseloads. Issues of confidentiality, conflicts of interest, the adversarial system and other facets of the legal context make this a rich setting within which to study these interactions and the processes by which lawyers and clients make decisions.
If lawyers and law students could take away just one message from the book, what should it be?
The broad message we hope readers come away with is that psychological research has real relevance for all the kinds of things that lawyers do. Lawyers should not simply rely on received wisdom or experience, but think about how the findings of psychological research might have implications for how they go about their work. We report lots of specific findings from the psychological research and give specific advice on how lawyers can be more effective in various areas of practice.
But perhaps most important is developing lawyers' empirical mindsets — convincing them to question their practices and look to psychological science for relevant findings. That has the potential for a longer-lasting impact on the practice of law than how any particular psychological phenomenon might affect lawyering.
"Lawyers should not simply rely on received wisdom or experience, but think about how the findings of psychological research might have implications for how they go about their work," says Dr. Jennifer K. Robbennolt, a professor of law and psychology at the University of Illinois.