Small Law Firms

Take Advantage Of Lazy Decisions

As a lawyer, presenting the default option as the best, or at least your preferred option, is a small, nuanced thing to do, but it can can make a difference.

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A while back Consultant’s Mind had a post on on the book Nudge. I picked up the book again recently and it made me think about the post.

Nudge puts forth the argument that while people think they are making informed choices, more often than not they are relying on default choices (click to enlarge).

Essentially people will default to the status quo. The option of least resistance and thought. The most efficient and requiring the least amount of effort. The option of not caring enough to do something different. A good example of how prevalent default choice is, see the following example:

As Consultant’s Mind notes, “30-40 years of stocking away $$ from your paycheck is certainly not trivial. It’s a non-decision that can cost hundreds of thousands.” But people are too lazy and can’t be bothered to take the small amount of effort to make an informed decision. People choose the path of least resistance. Reading the post, and more material at the Nudge blog, got me thinking about Hick’s Law.

The Time to Choose

Hick’s Law essentially states that the more options presented, the longer it takes to make a decision.

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Hick’s Law, named after British psychologist William Edmund Hick, or the Hick–Hyman Law (for Ray Hyman), describes the time it takes for a person to make a decision as a result of the possible choices he or she has. The Hick-Hyman Law assesses cognitive information capacity in choice reaction experiments. Wikipedia.

This can more easily seen in a graph.

Options freeze us up, slow us down. It can be evidenced at the micro-level. While I have no research or data to back it up, it’s possible that Hick’s Law manifests itself at the macro-level resulting in default choices. When presented with numerous choices requiring an informed decision-making process, people select the default choice because it is the quickest decision to make.

The big takeaway seems to be that at a deep level, people are option averse. We don’t like to be presented with too many selections.

Lawyers Don’t Like Anything New

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Lawyers are known for being risk averse. They are pessimistic and look at most situations with skepticism. Take that with the above and combine it with adherence to precedent, then it’s little wonder that the profession is slow to change (not that that’s necessarily a bad thing).

So, knowing this, along with the above about default choices, what does this mean for lawyers?

  • Put your best recommendation first.  When you storyboard your recommendations, and present options, put the best one first. The order of the options matter.  Don’t bury your best thought in the middle of the deck. Put your best foot forward. This is true for arguments as well. Make your strongest argument or point the default one. Don’t stick it in the middle of your brief. Judge’s are just as lazy as anyone else. Busier too. Make sure whatever you really want them to read is the first thing you present to them.
  • Beware of default choices.  
    • “We can’t do that, we tried that before.”  [default choice]
    • “The partners will never agree to that.” [default choice]
    • “We have never handled that type of matter before.” [default choice]
  • Expect resistance to change.  Don’t forget that your firm has a default choice too. The status quo option for them is to NOT listen to you. It is easier for them to do nothing, take the default choice, and ignore changes you recommend. The same is true for clients.

Presenting the default option as the best, or at least your preferred option, is a small, nuanced thing to do, but it can can make a difference.

Keith Lee practices law at Hamer Law Group, LLC in Birmingham, Alabama. He writes about professional development, the law, the universe, and everything at Associate’s Mind. He is also the author of The Marble and The Sculptor: From Law School To Law Practice (affiliate link), published by the ABA. You can reach him at keith.lee@hamerlawgroup.com or on Twitter at @associatesmind.

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