3.1. Like a Tree With Blackbirds

• Jurisdiction: United States
• Publication year: 2021

3.1. LIKE A TREE WITH BLACKBIRDS

I was of three minds,

Like a tree

In which there are three blackbirds.⁵

Around 2,350 years ago, Aristotle circulated documents making up his Rhetoric, perhaps in connection with lectures. On some matters of technique, the Sophists beat him by about 100 years, but Aristotle's was the first deep study of persuasion in civic affairs and how it works in receivers' minds. Until recent decades, writers and scholars elaborated and contemporized Aristotle and the Sophists but added few insights.

Aristotle famously divided the means of persuasion into ethos, pathos, and logos.⁶ Roughly, these translate into character, logic, and emotion. Unfortunately, in popular minds, including minds of teachers of public speaking, the means have taken on an abstract or mechanistic aura. Much to the contrary, Aristotle analyzed how to create a relationship with the audience leading to common understanding and action.⁷ That requires knowing and connecting with what the audience cares about.⁸

Ethos, far from being a speaker's reputation, consists of the speaker demonstrating good character as the audience understands character. In Aristotle's context, character meant practical wisdom, virtue, and goodwill.⁹ Pathos lacks tragic weeping; it involves connection with the following and their opposites: anger, friendliness, fear, kindliness, pity, indignation, envy, and emulation.¹⁰ And logos is not an abstractly imposed form of logic, but whatever kind of reasoning and premises with which the audience is familiar and comfortable.¹¹ The proper balance depended on the circumstances of the time, or kairos. All these aspects of rhetoric except technical logic are both learned and projected by narrative.¹²

Aristotle taught how to inspire a decision in public affairs, be they judicial, legislative, or executive. He knew the speaker's best asset is not a technique but is knowing how the people in the audience make decisions. Aristotle grasped that people decide two ways. One is by relying on information delivered to them as it connects with a priori principles and processes—ethos and pathos. The other is by analyzing information—logos.

For centuries after the classical Greeks, philosophers and psychologists observed and debated the dual nature of human thought.¹³ Not much useful to advocates came from the discussion.

Millennia after Aristotle, academic psychologists applied scientific methods to studying human thought processes. Among the leaders, Daniel Kahneman and colleagues pursued how people make decisions. Kahneman and Vernon Smith won the 2002 Nobel Memorial Prize in Economic Sciences for developing prospect theory. Basically, they proved that in making financial decisions, risk aversion and amount at stake skew the strict mathematical rationality economists had assumed for more than a century.

Preparatory to developing prospect theory, Kahneman and Amos Tversky explored the substance and nature of errors people make by not engaging in sound rational thinking.¹⁴ They grouped error-prone processes as heuristics and biases.¹⁵ And continuing their work, they found they could not explain all bad judgments by definable defects. Rather, people manifested two distinct ways of deciding: one is fast, easy, and intuitive; the other is slow, effortful, and analytical.¹⁶

Kahneman and colleagues came to describe this dual "mental life by the metaphor of two agents, called System 1 and System 2, which respectively produce fast and slow thinking."¹⁷ Kahneman popularly published much of his and followers' work as Thinking, Fast and Slow in 2011; I will call it Thinking.

What has Kahneman to do with legal advocacy?

The legal profession and adjunct academics have poured huge energy into trying to figure out how judges think. The academic side generated battling encampments of formalists and legal realists. Most judges speak for the formalist position and deny pathos or ethos affects them. Lawyers observe otherwise. A disorganized body of nonscientific writing describes the judicial audience as having measures of intuition, gestalt, or emotion.¹⁸ It invokes everything from Aristotle to Jungian personality typology to pop psychology.

Four years before Thinking, two professors and a magistrate judge published "Blinking on the Bench," an article in the Cornell Law Review, that combined psychology scholarship with Malcolm Gladwell's praise for the power of intuitive decisions—blinks.¹⁹ They studied trial judg-es.²⁰ They adopted the System 1/System 2 model from Kahneman and colleagues' academic publications.²¹ Based on experiments both standard and designed specifically to mimic judicial decision making, they concluded: "Despite their best efforts . . . , judges, like everyone else, have two cognitive systems for making judgments—the intuitive and the deliberative—and the intuitive system appears to have a powerful effect on judges' decision making."²² Viewing excessive reliance on System 1 as a fault, they suggested how to induce more deliberative decision making, but they said nothing about how advocates might use the science of decision making to be persuasive.

Thinking overrode the pop-psych mess for the lawyer who wants to know how judges' minds work. It presents a complete theory of decision making. It is scientific. It teaches advocates, although Kahneman did not set out to be the Aristotle of the twenty-first century.

Jumping ahead, here's an illustration of how the science of decision making applies to appellate judging. Appellate judges claim they retain open minds while reading all briefs and hearing all arguments. Many lawyers don't believe this. Neither side monopolizes truth. System 1 operates always in judges' minds, continually producing impressions and opinions. In ordinary life, elements of System 1's streaming become beliefs if System 2 does not object.²³ When a judge says she keeps an open mind, she means she consciously engages System 2 to prevent beliefs from forming. However earnest may be her self-evaluation, and however successful she is in avoiding hardened beliefs, elements of System 1's process remain in her mind. An advocate can gain advantage from judges' System 1 thinking, particularly by telling good stories.

3.1.1. System 1 Thinking: Fast, Automatic, Intuitive

System 1 is on when we are awake, we cannot turn it off, and we cannot prevent it from forming impressions and opinions about everything we perceive. Unless we intentionally override it, we have no sense of controlling it, and it requires little or no effort. It works quickly and automatically. That is not to say it is stupid or mechanical. System 1 performs functions of perception and orientation in both physical and social worlds. For example, it detects hostility in a voice or facial expression and forms one's own face to express emotions. It understands simple sentences and arithmetic.

Experience can train System 1 to navigate and decide difficult puzzles. A chess master uses System 1 thinking to move pieces in a lightning game based on familiarity with patterns. System 1 can drive a car on an empty road—this explains why a drive in the country can be refreshing, while driving in freeway congestion is tiring—or it becomes a System 1 operation conducive to rear-enders. Shagging fly balls exemplifies training System 1: thousands of experiences with pattern enable the brain to decide trajectories accurately without wasting the time and effort required to engage System 2. In a game, the ball would roll to the wall before the fielder could calculate cognitively where it would be easily catchable six feet above the turf.

"The main function of System 1 is to maintain and update a model of your personal world, which represents what is normal in it."²⁴ "Update" is a key word. What is normal...