What Should Lawyers and Law Students Learn about Human Behavior for Effective Lawyering?

This article explores the significance of emerging multidisciplinary theories about brain function that dictate profound reassessment of basic lawyering assumptions about human behavior. These emerging theories indicate that, as human beings, our perceptions and memories are flawed, and as a result, lawyers work with distorted information that influences our thinking. ¹ This article describes how the brain functions to create these distortions, how this affects law practice, and how we can teach students to compensate for these deficiencies in thinking. ² I argue that these premises should be integrated into the teaching of law and lawyering to law students.

Several universal and unconscious dimensions to human behavior or brain function significantly affect the lawyer's conscious decisions and actions. New substantial knowledge about how the brain works as well as significant scientific attention to the biological basis of the human capacity for perception and decision-making exists ³ that  [*610]  explains biological bases underlying human behavior. This article explores how this knowledge about brain functioning enables law students to perform more effectively as they acquire the range of lawyering skills including the fundamentals of fact investigation, fact analysis, and problem solving in their law school curricula. ⁴

In section II, I explore the following specific premises of brain function that affect law practice: (1) we automatically think we know more than we do; (2) what we believe to be objectively true is not necessarily so; (3) the objects we perceive are not necessarily as they appear to be; (4) accurate memory recall is a falsehood; and (5) we have a structure for creating and storing memory that narrows what we are able to remember through a process using categorization and metaphor. I also illustrate how these premises interfere with the clear thinking lawyers need.

 [*611]  In section III, I propose a systematic framework of internal monitoring called "Intentionality" as a method for lessening the distortions created by our brains. I advocate that law schools teach students how their brains function to distort information and how they can use this Intentionality framework to gain self-awareness to compensate for this distortion and lessen the adverse effects of our default assumptions about the functioning of our mental processes.

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