Following up on my ode to the slippery slope, Mike at Crime & Federalism has an important post about how we think, and why we do it wrong, that’s a must-read.  Mike reviews the book, “Don’t Believe Everything You Think: The 6 Basic Mistakes We Make in Thinking,” by Thomas Kida, and it is indeed enlightening.

Oddly, Mike only lists 5 “mistakes”, the book title notwithstanding.  The “mistakes” are:

The narrative fallacy
Confirmation bias
Mistaking coincidence for causation
Memory sucks
We are super simple Simons

Check out Mike’s post for an explanation of each of the “mistakes”, then come back when you’re done.  I’ll wait. . .

Okay, now let’s consider why they are crucial to criminal defense lawyers.  If our purpose is to persuade, it’s critical that we do so effectively or we’ve just sent our guy up the river.  The first step is not to allow our own thought processes to fall into these traps.

Defendants come to us grasping at straws.  They are desperate to convince us that they can and should win by falling into the very thinking traps Kida notes, particularly with issues of memory (gestalt theory), coincidence (which I discuss often under the heading of inductive reasoning) and oversimplification.  Confirmation bias is simply telling them what they want to hear.

If we can recognize their flawed thinking, we can avoid heading blindly down a path to disaster.  It’s often difficult, it not impossible, to get clients to see why their heartfelt beliefs will crash and burn as a defense, and that’s unlikely to change even if the error of their thinking is pointed out.  Reason is overcome by desperation in the defendants’ mind, but we can’t afford to let that happen in our own mind.

After realizing that we, like everyone else, indulge ourselves in fuzzy thinking, we can recognize the error in our approach, eliminate the ineffective, indulgent arguments and develop a strategy that is directed toward winning over the only minds that matter, the jurors’.

But these errors come back into play again, this time as the mechanism to convince a gang of 12 who suffer from the same malady of fuzzy thinking.  Turn the tables and use these tricks as the tools of persuasion. 

Every lawyer knows how defendants offer incredibly complex excuses for their conduct, usually challenging fact after fact with long-winded, highly improbable explanations that make perfect sense to them but require a jury to adopt so many assumptions that the chances of their accepting the defendants excuses are nil.  Well, Kida tells us to simplify. and he’s right.

By cutting the lengthy tale of woe down to two or three sentences, we can sell an explanation that would never fly otherwise.  Frame it as a story and enjoy the benefits of the narrative fallacy.  Offer coincidence as if it were causation and they will accept it.

This is great stuff, not just for understanding ourselves and why our own thinking is so often less than perfect, but as weapons for the fight. 

I see that Gideon has also posted about this, and reminds us of Occam’s Razor and Bennett’s Chainsaw, discussed here as well.  If Gid felt compelled to point to Mike’s post, it’s got to be important.