Part One

Chapter 1.The Lawyer and Policymaker as Problem solver and

decisionmaker: the roles of deliberation, intuition, and expertise

Getting it right and wrong

This course is a mixture of prescriptive materials on how to make good decisions and materials describing systematic ways that people make poor decisions. The former are drawn from common sense, statistics and decision science. The latter come from social psychology, the psychology of judgment and decision making (JDM), and the emerging field of behavioral economics. We hope that students’ understanding of decision making errors will result in better decisions for themselves, their clients, constituents, and other stakeholders. In any event, the insights from these disciplines are a useful aspect of professional students’ repertoire of knowledge.

Slide. Layout of the book.

Slide.Terminology. As we mention in the preface, the terms problem-solving,decision making, and judgment have different, though often overlapping, meanings. You might think of them as three overlapping circles in a Venn diagram. We often use “decision making” as a shorthand for all three.

  • Problem solving: We describe three sorts of problems. Two are deviations from the way things should be: something has already gone wrong or might go wrong in the future if we don’t take preventative measures. Here, problem-solving requires understanding what caused or will cause the undesirable situation and determining alternative solutions in terms of the interests and objectives at stake. A third sort of problem solving involves moving the world in the direction you desire even if nothing has gone or will go wrong.
    2 Slides. Problem Space, Navigating the Problem Space
  • Decision making. If the core of problem solving is sizing up the situation in terms of the interests and objectives at stake and mapping out possible solutions, thendecision making involves identifying the tradeoffs among solutions and choosing the best alternative. Most important decisions implicate several values, interests, or attributes (e.g., cost, quality, and safety for many consumer decisions). Sometimes one alternative will dominate others in all respects, but usually the decisionmaker must make tradeoffs. (More of this in Chapter 4 and 12.)
  • In its JDM sense, judgmentinvolves empirical perception and analysis; it is “sizing up” the external physical or social world—as distinguished from the internal interests or psychology of the decision maker. In its broader sense, it is wisdom or discernment involving internal as well as external matters.

Chapter 1 introduces two different methods of problem solving/decision making: (1) deliberative and (2) intuitive or schematic. The book approaches these differently.

Deliberative decision making is an analytic discipline, the foundations of which can be learned through repetitive exercises. We accompany Part I of the book with a number of exercises of this sort.

By contrast, our approach to intuitive or schematic decision making is descriptive—descriptive of the underlying psychological processes and of how one develops expertise. For the most part, intuitive decision making must be learned on the job, or perhaps through simulated clinical exercises—in either case, through reflective practice. Perhaps becoming better at deliberative decision making can improve intuitivedecision making as well. In Chapter 20, we quote Constantin Stanislavski's description of an actor's preparation:

One cannot always create subconsciously and with inspiration. No such genius exists in the world. Therefore our art teaches us first of all to create consciously and rightly, because that will best prepare the way for the blossoming of the subconscious, which is inspiration. The more you have of conscious creative moments in your role, the more chance you will have of a flow of inspiration.

Slide.Deliberative Decision Making. Our particular version of the multiple steps of deliberative decision making is pretty generic. Students are strongly tempted (as are we all) to skip steps and head toward what they see as an obvious solution. The Terra Nueva, Newport Records, Trampoline, Shark Attack, and other problems[1]provide opportunities to walk through most of the steps and show the potential dangers of skipping some.

2 Slides. Evers v. Newport Records. In Newport Records, Anna defines the problem as how to get summary judgment. Although it leads to some repetition of material in the book, we ask students in class to describe Evers’ plausible interests:

  • Case resolved; closure
  • Favorable judgment
  • Money now (for new venture)
  • avoid litigation costs

We ask students to generate a range of plausible solutions or alternative courses of action:

  • do nothing (get the money for his new venture elsewhere)
  • seek summary judgment
  • Go to trial
  • make a settlement offer

And we ask them to predict the consequences of the courses of action and assess their impact on the relevant interests or objectives. (Chapter 15 uses Newport Records’ litigate/settle decision to introduce decision trees.)

Although Newport Records doesn’t call for diagnosing causes and dealing with major uncertainties, Christine Lamm’s analysis of Terra Nueva in Chapter 2 does that explicitly.

Trampoline problem

The trampoline problem is a good way to get students to go through the steps of the deliberative process. It creates expectations that this is a “legal” problem, but most of the analysis and plausible solutions don’t involve the law at all.Here and formany of the other problems in this book you can, for example:

  • Ask students to send responses by email
  • Ask students to work on the problem in class, individually or in groups
  • In either case, then discuss the problem in the full class

Here, from a recent class, is a student-generated list of the client’s possible interests.

  • Reduce risk of liability
  • Keep the baby sitter
  • Ensure all children’s safety
  • Help her children make friends
  • Help compensate for her children’s shyness
  • Maintain a good reputation with other parents
  • Maintain children’s custody
  • Understand good practices for using trampoline

Here is a student-generated list of uncertainties to be resolved:

  • What are the risks?
  • Was the baby sitter following the instructions/good practices?
  • What were the conditions when the neighboring child was injured?
  • Who is liable for the injury, and under what circumstances?
  • Why can’t the kids make friends?
  • What are the benefits of the trampoline in terms the child’s interests, as compared to other activities?
  • How can safety be improved?
  • What are other peoples’ views (besides Ms. Trisolini’s) of the situation?

Only after students have gone through these two steps, ask them to suggest possible alternative solutions. (If you make this part of the initial exercise, quite a few students may define the problem and interests in terms of the solution.)

As a segue into intuitive decisionmaking, ask: Why can’t all DM be deliberative?

  • All problem solving begins with series of hunches or hypotheses (intuitive).
  • If we had limitless cognitive power and time, we could deal with all problems deliberatively.
  • But bounded rationality—in effect cognitive transaction costs—require satisficing (mostly intuitive).

Intuitive decision making

What are schemas? How do they work?

Imagine perceiving the world without any knowledge structures or schemas. I would look around the room and not be able to identify discrete objects—people, chairs, tables. Just a lot of incomprehensible data.

In fact, we place every perception into a pre-existing knowledge structure or schema in our memory.

  • We’re right 99% of the time.
  • Occasionally we’re surprised or disappointed: Walking into the store, we thought we saw a person but it was a manikin.
  • Sometimes we retain a belief in the schematic perception even in the face of evidence to the contrary. Cf. optical illusions.

Schemas are also important for understanding complex social/organizational phenomena.

Developing competence/expertise in a field requires learning sound schemas and pattern recognition.

Examples of using schemas in everyday life.

  • Solving crossword and other puzzles
  • Listening to a piece of music and identifying the composer or singer
  • Reading a crumpled or torn piece of paper where not all the words are legible
  • Skimming a book or article

Examples from book.

  • Christine Lamm’s dead computer. Why does she assume it’s the plug? How did she learn this?
  • Anna (new lawyer): hearsay, summary judgment schemas
  • Klein: firefighters
  • Neonatal nurses
  • Soldier suspecting IED

Q: examples from your experience?

Scripts. How to behave in a courtroom, in a classroom, subway, restaurant. Navigating a crowd in a busy airport.

The mix of intuitive and deliberative

Slide.Convergent/divergent.The basic point is that problem solving always starts with intuitions about the nature of the problem and solutions. The question is how and when one tests these intuitionsdeliberatively

  • Divergent: framing, identifying objectives
  • Both divergent and convergent: identifying causes
  • Convergent: evaluating and selecting alternatives

Some of your students may have read Malcolm Gladwell’s Blink, and drawn the conclusion that intuitive decision making usually trumps deliberation. But there are many examples in Blinkwhere this is not the case. And when it is, it’s usually decision making by experts, who have acquired expertise through lots of deliberation as well as feedback from practice. (More about this later.)

Affectoften plays a role in schematic processing: when you see a lion or snake you run, and in many social situations you have a gut feeling, long before there is any conscious cognition. Negative affect narrows range of deliberative DM decision making by taking some choices off the table.

This is a good place to discuss expertise. Can you recall developing competence/expertise in something, and what it felt like to be competent/expert?What does it mean to be an expert? To have know-how in a field? How does an expert approach differently from someone without know-how?

  • Knows more about the substantive (procedural) subject
  • Knows geography and extent of domain
  • In some cases, physical skills (sports, music, surgery)
  • Organization of knowledge in terms of schemas
  • Recognition of patterns (Darlene the nurse)
  • “flow”

Slide. What’s unusual about this hand?The downsides of schematic processing. After introducing schematic processing (as foundational to intuitive decision making), we show students the Bruner and Postman hand of cards. Many students don’t see what’s wrong because of their expectations.

Slide. Two systems. This is where we introduce the two-systems view of decision making that pervades the book and which is one of the cornerstones of JDM research. Here, or later, one can say a few words about the origins and intellectual history of JDM research. While they didn’t start on a blank slate, Amos Tversky and Daniel Kahneman are the founders. Tversky died in 1996. Kahneman received the Nobel Prize in Economics , in 2002, essentially for both of their work. The new field of behavioral economics grows out of the JDM research. (Chapters 14-18 deal with aspects of behavioral economics.) Although the two-systems approach precedes fMRI (functional magnetic resonance imaging), the imaging work indicates that affective responses (System 1) and cognitive work (System 2) may take place in different parts of the brain.

You can also introduce the idea of heuristics, though the book doesn’t focus on this until Part Two.

Slide.Bat and ball.

Slide.Heuristics.

Weend by tying the discussion of expertise with the students’ own aspirations. Where /how did Anna, Luis, and Christina learn what they know?What jobs do you imagine having, and what skills and knowledge will you need? What do you hope to get from professional school and from this course?

Chapter 2. Framing Problems and Identifying Objectives And Identifying Problem Causes

The main point about the decision context is that it limits the solutions that a particular decisionmaker can pursue.

  • Some students find the trampoline problem troubling because they believe that the lawyer-client decision context does not encompass the personal or psychological counseling that may be the best approach to Ms. Trisolini’s problem.
  • Like Keeney’s public utility charged with reducing radiation danger, Christine Lamm has limited authority to deal with the Terra Nueva problem: she can engage in rule-making, but she does not have the power to require tenants to evacuate the premises.

Problem definitions and frames. The trampoline case comes packaged as a legal problem, but (notwithstanding the comments about decision contexts) a good lawyer would not be limited by legal frameworks. A savvy problem solver challenges each proposed objective with a “why” until she runs out of “becauses.” But you can’t do this relentlessly for all problems, because probing further into the nature of the problem in order to arrive at the right solution can be time consuming and costly. There is a tension between going deeper and deeper about objectives and establishing a workable scope for the problem.

Symptoms vs. problems. It is important to ask:what triggered this problem? Why am I even considering it? But the trigger may be a symptom rather than the core of the problem itself.

Frames are inevitable. A frame is an instantiation of a particular schema. It comes with a host of expectations and constraints for interpreting and analyzing the world.

An initiative by the Hewlett Foundation to “reduce the need for abortion” provides an interesting example of framing designed (with reasonable success) to appeal to people on both sides of the abortion debate. The idea is to help young adultsreduce unintended pregnanciesby using contraceptives. Most social conservatives, including evangelicals, do not object to contraception, and many regard providing contraception for people engaged in sex outside of marriage as a lesser evil than abortion. No one on the pro-choice side regards abortion as a desirable method of birth control. Note that the characterization of a position as “pro-choice” or “pro-life” itself has a parallel framing effect. In designing this initiative, the Foundation learned that evangelicals and other social conservatives had very different reactions to “unwanted,” “unplanned,” and “unintended” pregnancies.

An important aspect of persuading others is to get them to accept your frames. In any event, be wary when someone else frames a problem—especially as a limited choice.

Part of expertise is having a perspective that does not inevitably accept a client’s or stakeholder’s framing of a problem. But experts have their own (narrow) frames, which may prevent them from registering and incorporating aspects of the story that are salient from another's perspective.

Values, interests, and objectives get at essentially the same thing, but indescending levels of generality.

Slide.Stakeholder analysis consists of looking at problem from different people’s points of view. This isn’t necessarily altruistic, but rather a way of understanding all of one’s own or client’s or constituents’ interests.

The book walks through a stakeholder analysis from Serrano’s point of view. You might ask students in class to do the same from Lamm’s perspective.

Causal analysis. Thisis acompletely different subject from objectives. In principle, it might have a chapter of its own, but we put it here to avoid overly short chapters.

Cause is about counterfactuals: the putative cause made something “go wrong” that wouldn’t have gone wrong absent the occurrence of the cause. The Kepner-Tregoe method (which, like our list of the steps of deliberative decision making, is just one of a number of systematizations of causal analysis) focuses on distinctions between what happened and did not happen.

We teach causal analysis through

  • Slide.Christine Lamm’s discussion of the causes of the illnesses at Terra Nueva, and
  • Slide.Perrin Stryker’s classic,Can You Analyze this Problem?, which can be ordered and downloaded online from the Harvard Business School. We don’t give the students the accompanying How to Analyze this Problem,which you can treat as a teacher’s guide. The case study misleads most students to focus only on the personnel issue, but it turns out that the problem can be analyzedand “solved” in technical terms. In outline:[2]
  1. Defining the problem:

Immediate: deviation from desired norm
reject-rate of burred panels on lines 1, 2 & 4

Longer term: personnel-labor management problem with Farrell and Valenti and upcoming contract negotiations

2. Specifying the problem’s “what,” “where,” “when,” and “extent”

Relevance of different extents? Could be random variation.

If any correlation with problem, though, we would expect Farrell’s line #2 to have higher > lower rejects because that’s Farrell’s line

3. Spotting distinctions and identifying changes responsible for the distinction

  • Lines 1,2,4 but not 3
  • Line 3: one stack, Cheetah
  • Stacks of old blanks used up before new Zenith blank
  • Explains why line 4 took longest
  • Line 3 shortest, but Cheetah

The main hint that the students are given is buried in this colloquy:

PETERS: It’s hard to say what might be causing it.We’ve been checking the sheets from Zenith Metals we started using this morning, and they looked perfectgoing through the blanker. Besides, it’s onlyon lines #1 and #2 that we’re getting burrs, somaybe we’ve got trouble with those presses.

…

COGGIN: What about that man who got hurt lastnight on overtime while unloading those sheets?

PATELLA: He’s been on the job for a couple ofmonths, but he tells me he wasn’t familiar withthe method of blocking that Zenith Metals uses.He’s not hurt bad, but he’ll get workmen’s compensation OK.

Of course, there may remain underlying personnel problems:in any event, students who were originally invested in this analysis tend to believe so. We ask students to submit a brief analysis by email, then discuss the problem in small groups in class, giving them a blank formto fill out, and then have a class-wide discussion.

Strategic planning

Terra Nueva and the Stryker case study involve gone-wrong problems. Strategic planning, whether done by a state or local government, or a nonprofit organization, is paradigmatic of forward-looking problem solving. The chapter ends with an example of strategic planning for the Hewlett Foundation’s Environment program’s work in the American West.