Cuts in legal aid and deregulation of the market mean that people with legal problems have increasingly complex decisions to make about what – if any – action to take. Lawyers need to understand how their clients think, say Professor John Maule and Simon Maule.
Recent changes in the legal sector have increased the scope and complexity of the decisions that the public take when dealing with legal problems. Deregulation has greatly increased the range of options available to consumers: such as, legal services provided by supermarkets, or online advice. Reductions in legal aid are forcing people to make complex trade-offs between the costs and likely value of different legal solutions, and may lead consumers to take decisions about their legal problems themselves, without seeking professional help.
Research on the psychology of decision-making suggests these changes will pose problems for consumers and reduce the quality of the outcomes of their choices. People find it difficult to make decisions that involve evaluating and choosing between many rather than a few options, when the evaluation involves making trade-offs between the value and costs of different options, and when the decisions are surrounded by uncertainty.
We have undertaken two reports on this subject for the Legal Services Board, the body which oversees regulation of solicitors in England and Wales. Contemporary research on human decision-making shows that people are generally ill-equipped to deal with decisions designed to solve legal problems, and we look at why this is the case and how we can help them make better decisions.
Theory and research on human decision-making
Current views suggest that people use two different types of thinking when making decisions. One, called ‘system one’ thinking, is fast, intuitive and goes on in the background throughout our waking lives. We are not aware of the processes involved but are aware of their outcomes, for example, particular options feel right or make us anxious. The outcomes of system one thinking can provide powerful guides to action, for example: choose what feels right; avoid what makes you anxious. The problem is that simple feelings and impressions can be misleading, so people often choose inappropriate options.
The second type, called ‘system two’ thinking, is based on reason and analysis, and is relatively slow and involves conscious deliberation. In this case, we are aware of and can control the processes involved, that is, can choose using logical rules or legal precedent. Since system two thinking is based on reason and deliberation, it is more likely than system one to lead people to choose better options. However, this form of thinking can only process relatively small amounts of information at any one time and takes mental effort, so runs in to trouble when problems are complex or people are tired or emotional. People use system two thinking sparingly and tend to rely on system one. Interestingly, when asked to provide an account of how they made a decision people do so as if they used system two, even when, in reality, they used system one.
Research has uncovered many different forms of system one thinking. One example is ‘availability thinking,’ which is used when people try to assess how likely it is particular outcomes will occur following the choice of an option; for example, the likelihood of a successful outcome when seeking custody of children during a divorce settlement. When making this judgment, most people have neither the necessary experience nor legal knowledge to draw on to allow system two thinking. Instead, they are likely to rely on availability thinking (system one), that involves assessing the ease with which they can remember past cases turning out positively. If memories of previous successes readily come to mind, then this is interpreted as indicating that their own case is likely to be successful. These memories are based on the experiences of friends and family, events seen on television, articles read in magazines and the like. If people cannot easily bring to mind past successful cases, then they judge their own likely success as relatively low.
This mode of thinking has some validity – things occurring more often in the past are both easier to recall and generally more likely to occur in the future. However, high-profile events, such as a celebrity or best friend successfully gaining custody, leave very strong memory traces that are very readily accessed, even though, in general, these events may not occur very often. As such, availability thinking can lead people to be overconfident about the likelihood of success in a custody case, leading them to take action when, in reality, the actual likelihood of success is very low.
Availability is just one of many examples of system one thinking that people use routinely when solving legal problems (see our full report for others). These forms of thinking allow people to resolve complex problems quickly in areas where they have limited knowledge and experience. However, they generally involve using biased information, such as high-profile cases, rather than a representative sample of past cases, which are processed in an inappropriate way; by using retrievability from memory, rather than objective measures of outcome success.
Decision tree of an example legal problem
Helping people make better decisions
We indicated above that an over-reliance on system one thinking leads people to use biased information and inappropriate thinking when processing that information. Helping people make better decisions involves addressing these two problems.
One approach, referred to as ‘just in case’, focuses on the first problem. This involves interventions that educate people at one point in time about events that they may meet in the future, so they are better prepared to make an informed decision when these events occur. This approach was advocated by the Low Commission in its report into the future provision of social welfare law services, when it recommended an increase in public legal education. It is also the cornerstone of interventions developed by Law for Life, the charity which promotes community-based legal education projects. A major problem for these legal examples and similar interventions developed in financial services is the lack of evidence that they actually work – participants show increased knowledge at the end of the intervention, but no improvement in decision-making later, when they have the opportunity to apply this knowledge.
Research on ‘just in case’ approaches in health settings provides some insights about these failures and how they may be overcome. For example, it is important to identify and overcome barriers that deter people from taking the best option, for example if it is seen as involving too much effort or being too time-consuming to implement. Also, it is important to build up self-efficacy: people may know what they should do, but do not believe they can successfully implement the best option. Research in the health sector indicates that addressing these and other barriers improves the success of ‘just in case’ interventions.
A second approach, often referred to as ‘just in time’, is designed to reduce the negative impact of biased information and inappropriate thinking. This approach provides support as a decision is actually being made by providing relevant information and/or helping users process information in an appropriate way. To date, the approach has not been evaluated in legal settings, though its success in health and medical settings suggests that it has considerable potential. There are a broad range of different types of intervention including:
•Checklists. Decision-makers are given acronyms that act as prompts to generate/search for information relevant to a decision situation that they might otherwise overlook. SWOT is a commonly used checklist, though it will be necessary to generate new checklists that are relevant to legal situations.
•Decision trees (see above). People capture their decision by drawing a tree-like structure, which includes three key aspects: the options available to them, the key uncertainties about what may happen in the situation, and the outcomes that follow from choosing a particular option when the uncertainty resolves in a particular way.
It is impossible for a person to retain all the relevant information about options, uncertainties and outcomes in conscious attention while also evaluating which option is best. Drawing the tree frees up thinking capacity and allows it to be focused on the evaluations necessary to determine which option is best.
These are just two of many ‘just in time’ interventions presented in our report.
Implications for lawyers
The research highlights the need for lawyers to recognise that an overdependence on system one thinking means that their clients often misinterpret and misunderstand legal problems and the professional advice they receive. Lawyers need to learn more about these forms of thinking and adjust their interactions with clients to overcome these misunderstandings. Also, lawyers need to gain a better understanding of the various techniques that are available to help clients think smarter. Inclusion of these techniques in everyday practice has the potential to improve the lawyer/client interaction. Indeed, at a time of increased competition in the legal services domain lawyers may gain competitive advantage by offering clients a service based on innovative research-led techniques that improve client decision-making. It is also worth noting that research shows that lawyers often use system one thinking that reduces the effectiveness of their decisions and the advice they give to clients. Lawyers need to recognise these forms of thinking in their professional practice and consider how best to stop them impacting negatively on their own decision-making and advice-giving. Finally, this area of research is developing quickly and is having an increasing impact on professional and policy decision-making. Keeping abreast of these developments is crucial for the professional development of lawyers and the legal profession in general.