The Bifurcated Lawyering Mind

Most of us walk around all day believing that everything we do, experience, think, feel, and worry about gets stored away in our memory, and that memory is an extraordinarily important part of the individual mind.

In fact, there’s a real distinction between two very separate memories, and minds, at work inside that one lovely brain of yours. Understanding the difference betweeen the two, and how they work together, can make you a more effective and happier lawyer and person.

Daniel Kahneman, the famous psychologist credited with creating the idea of behavioral economics, and whose latest book you should read, draws a bright line between two ways that we mentally react to and organize our lives. These are the current self and the remembering self. Most of us think we have one unified mind and that we have a pretty good handle on how it works. We do not.

The journey vs. the memory of it

Your current self deals with the banal, everyday details of living. These experiences come and go and don’t get any space on your memory hard drive. That space is saved for experiences that define the you that your remembering self creates.

Your experiencing self wants stimulation: good food, good coffee, good music, good sex. Your remembering self wants long-term memories. These can come from the list above, but more often are based on a number of other difficult-to-untangle factors, including the expectation we have of an experience before the event occurs.

Our remembering self doesn’t “record” what we experience. It sorts, rates, and places values upon what happened, and creates a memory that will affects our thinking going forward, often leading us to make poor decisions based upon this inaccurate memory.

The wisdom imparted by colonoscopies

One of Kahneman’s data points was surveys of people who underwent colonoscopies. For some patients, the tube was removed as soon as possible when the needed information was gathered. Others, after the examination was complete, had the tube left in for a while without it being moved (thus lessening the discomfort). Only then was it removed. The second set of patients rated the total experience as significantly less painful than the first set of patients, despite the fact that the procedure lasted longer and the total amount of very uncomfortable periods was the same. Similar results are found with people asked to place their hand in uncomfortably cold water. 60 seconds at a consistent temperature led to significantly worse memories of the experience than 90 seconds with the water warmed slightly during the last 30 seconds.

Kahneman concluded that duration of experience and “amount” of suffering really don’t matter. The highest or lowest points, and the way the experience ended, matter much, much more. I have a strong feeling this is why so many lawyers speak fondly of law school, and the farther in time they are from it, the fonder they are. It also explains why so many lawyers complain about how miserable they are, but change nothing. Their experiencing selves are unhappy, but their remembering selves re-write history to make it not seem so bad in retrospect.

Which client’s self are you counseling?

What does this mean to your client? If she can’t decide whether to litigate, your feelings about litigation based in your remembering self are not going to be at all helpful in describing what litigation is really like. Trial? Same thing. If you won your last trial, you’re not going to recall how awful the trial itself was. If you think about your practice, I’m confident you can find your own examples. And this all fits into the larger questions about whether what’s good for the lawyer is good for the client.

The only “treatment” I’ve been able to come up with for this desperate need to rewrite history is to keep a journal that includes notes about how you and your clients are feeling about their cases. Reviewing that journal might help you to stay in touch with both your own and your clients’ experiencing selves. That might improve your client communictions, although it might not make you happier in the long run. But it’s all about the clients. Right?

(photo: someone is erasing a drawing of the human brain from Shutterstock)

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