Tigran Eldred started his career as an appellate lawyer, working on behalf of criminal defendants who had been convicted of serious offenses. This often meant he needed to investigate whether his clients had received adequate representation by their trial attorneys. Too often, though, when he would question a trial lawyer about why certain decisions were—or were not—made before or during the trial, the lawyer would become very defensive. Some lawyers would not even be willing to speak to him. This astounded him, as these are lawyers whose job it had been to zealously represent the interests of his clients. Frustrated, Eldred started to explore some of the psychological research that might explain why someone might place self-interest over the duties owed to their clients. The result was his first paper, which explored the psychology of conflicts of interest in criminal cases. Eldred has been interested in, and developed a greater understanding of the psychological dimensions of, ethical decision-making ever since.
Now he teaches and writes, at New England Law, in Boston, in an area generally known as “Behavioral Legal Ethics,” which seeks to apply the lessons of behavioral ethics research to the types of ethical decisions that lawyers make. The field of legal ethics is well-suited for this interdisciplinary approach, Eldred says: Lawyers are bound by a set of detailed ethical rules that prescribe their behavior, including situations that involve conflicts of interest, how clients are billed, the role of confidentiality, duties to courts and third parties, and many others. To prepare for practice, law students are instructed on the profession’s rules and how they apply to particular circumstances. “Interestingly,” Eldred told me, “professional ethics instruction became mandatory after Watergate in response to the question everyone was asking: ‘Where were the lawyers?’”
What has been largely missing from legal ethics pedagogy, Eldred says, is a behavioral perspective about how people—lawyers included—actually make ethical decisions. He believes research in the field of behavioral ethics, led by many of Ethical Systems’ collaborators, brings a nuanced and empirically sound understanding of the situational and psychological factors that influence ethical decision-making. “Those of us who work in the field of behavioral legal ethics seek to apply these insights to the ethical dimensions of lawyering,” he said.
I recently caught up with Eldred to chat about his work.
You run a blog on behavioral science, law, and ethical decision-making. How do you understand the relationship among those subjects?
The blog is a wide-ranging discussion of how behavioral science helps to inform law and ethical-decision making. Many of our posts focus on particular aspects of behavioral research and how it helps to explain the ways that lawyers make ethical decisions. For instance, I often post about ways to teach behavioral science in the professional responsibility classroom. There are posts on confirmation bias, ethical fading, and partisan bias. My co-bloggers also post on related matters. For example, Molly Wilson, a PhD in psychology with joint appointments in law and psychology at St. Louis University, has posted on how Solomon Asch’s famous line experiments help to explain behavior by corporate lawyers. She has also posted a series of entries about the behavioral aspects of criminal sentencing, as well as other ways psychological insights inform ethical decision-making. We’re proud that the blog has become a space for this important discussion in the legal community.
In February, you announced a new video program you created, for the Practising Law Institute, on motivated reasoning and legal ethics. Tell us about that.
This is also a project that Molly Wilson and I worked on together. We were fortunate enough to be asked to create an online interactive video, entitled Motivated Reasoning and Legal Ethics, for the nation’s largest provider of continuing legal education. In it, we review the major research on the psychological and situational dimensions of ethical decision-making, using simulations to engage the audience about real world experiences that can be ethically fraught. For instance, what happens in a law firm when the boss subtly suggests that a young associate over-inflate legal bills for a client? Or what pressures might cause a prosecutor to fail to disclose potentially exculpatory information that arises during the heat of a trial? I’m thrilled with the production value of the video, with professional actors performing the simulations. It’s exciting to know that lawyers in law firms and other organizations throughout the country are being exposed to the behavioral science of ethical decision-making in this new and interesting way. And I should note, we are very grateful that the Practising Law Institute is making the video available free of charge to professors to teach this material to law students.
How do you teach legal ethics, using what you call “experiential techniques,” from a behavioral perspective?
I’ve been teaching behavioral science to law students for about five years now and I’ve found—to no surprise to your readers, I’m sure—that experiential teaching techniques are by far the most effective way to engage the material with students. For instance, I introduce confirmation bias by having students offer answers to a variation of the Wason 2-4-6 Hypothesis Discovery Task, named after British psychologist Peter Wason.
I provide the students with a sequence of three numbers (2, 4, 8) and tell them that the sequence is an example of a rule that I have in my mind and that their task is to figure out the rule. I also explain that the students can propose their own sequences of three numbers and I will tell them whether the sequences fit the rule. A student usually hypothesizes quickly that the rule is “any multiple of 2.” After I explain that is not the rule, other students suggest possible rules, such as “always double the proceeding number” (which again is wrong). They also propose their own sequences—such as 5, 10, 20—which invariably fit the rule (as this one does). After a bit of time, the students become befuddled, not understanding why they can’t figure out the rule despite generating sequences that seem to fit. Finally, I reveal the rule, which tends to produce a bit of guffaw among the students, but the point is made: They have been displaying the power of confirmation bias by offering sequences of numbers that seek to confirm their pre-existing hypotheses about the rule, rather than offering sequences that would disconfirm their hypotheses. I find this exercise provides a wonderful introduction to how confirmatory reasoning, belief persistence, and related reasoning errors can produce poor (and sometimes unethical) choices.
There is a nice video on YouTube that displays how this type of exercise works (and reveals the answer to the rule!), in case anyone is interested.
How have law students responded to your behavioral-science perspective?
I’ve written an article about my experiences teaching Behavioral Legal Ethics, and in it I discuss some of the reactions from my students. While I haven’t performed a scientific sampling of student responses, to date the comments I have received have been very favorable. For example, one student noted, “Knowing the rules will only be helpful if you are aware of how you will act when faced with ethical dilemmas,” while another stated, “I found the psychology of legal ethics extremely helpful. It really allowed me to focus in on the issues I know I will be challenged with when I enter the legal profession.” My sense is that my students appreciate learning the context of ethical challenges they might confront as lawyers. They also find experiential teaching to be much more engaging than more standard forms of instruction.
In a paper on the psychology of conflicts of interest, you wrote that, “Too often, the Supreme Court has made assumptions about the behavior of defense lawyers without empirical support.” How does behavioral science inform the way the Supreme Court should think about defense lawyers?
In the last 40 years, the Supreme Court has analyzed conflicts of interest in a manner that, I believe, makes unsupported assumptions about how criminal defense lawyers respond to allegations about their own misbehavior. My argument is that lawyers—like all people—are poorly equipped to recognize and address their own conflicts of interest. As a result, I propose that constitutional standards for conflicts of interest should be treated more like the ethical rules concerning conflicts, which focus on the risk that a conflict will influence a lawyer’s behavior rather than whether a conflict has, in fact, caused an adverse effect on the legal representation that a client received. I’m happy that my analysis has been cited by a few state courts that have looked at these and similar issues—and who knows, maybe someday the Supreme Court will cite behavioral research in forming its opinion on this topic.
You recently shared a paper on your blog, calling it a “fascinating discussion of the role of behavioral ethics in the context of judicial decision-making.” Which points or lessons stood out to you the most?
Interestingly, in a series of decisions about the constitutional standards for judicial conflicts of interest, the Supreme Court seems to be a bit more behaviorally realistic about conflicts of interest than it has been about attorney conflicts. For instance, in a case from a few terms ago, the Supreme Court—in deciding whether a justice on the Pennsylvania Supreme Court could properly adjudicate a death penalty case when he had previously been the prosecutor who authorized capital charges against the defendant—noted that “bias is easy to attribute to others and difficult to discern in oneself.” The Court went even further, noting that when a judge is asked to participate in a case in which he or she previously served as a prosecutor, there is “a risk that the judge would be so psychologically wedded to his or her previous position as a prosecutor that the judge would consciously or unconsciously avoid the appearance of having erred or changed position.” Unfortunately, in making these important observations, the Court did not rely on or cite any of the significant scientific authorities on this point, as I have lamented elsewhere.
As legal scholars continue to identify situations where empirical research can be useful in judicial decision-making, hopefully we can nudge courts to be more mindful of citing available research when it is appropriate to do so. The article shared on our blog is such an example. In it, the author argues that the ethical standards for judicial conflicts of interest should mirror the ethics rules for lawyers, which require lawyers to think about how an outsider observer, who we call the “reasonable person,” would assess a conflict of interest. Citing research on this point, the author argues that taking an outsider’s perspective is likely to produce better results.
What do you make of the news that a Harvard professor of law was dismissed from his faculty dean position because of pressure from students who didn’t like him representing Harvey Weinstein?
This is actually an easy answer for me, one that does not depend on behavioral science. The rules of professional ethics make clear that a lawyer’s representation of a client “does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” The reason for this rule is simple: Access to legal representation should not depend on the controversial nature of the client’s cause, or the client’s lack of popularity. Once society starts making decisions about which people are and are not worthy of representation, we start down a slippery slope whereby the protections afforded by the law may be rationed based on who is perceived to be “deserving.” As a former defense lawyer who has represented many clients accused of heinous crimes, I know how dangerous that can be. A lawyer who decides to represent Harvey Weinstein should not suffer opprobrium or worse for doing so—we must remember that the lawyer is not the client and that every person, no matter what he or she has been accused of, is entitled to legal representation.
What aspect of the judicial system do you think is the most ripe for reform or refinement, from a behavioral-science perspective?
Behavioral science has been a major force in legal scholarship over the last few decades, with many scholars arguing that assumptions embedded in almost all aspects of legal doctrine—contracts, torts, criminal law, many others—need to be reality tested based on what the behavioral science tells us about decision-making. To take but one example, we know from the psychology of decision-making that people tend to make different estimates of risk prospectively than they do in hindsight, when they often overestimate the probability of past events. This can have profound effects in the area of tort law, where juries in civil cases are asked to assess retrospectively whether a defendant is responsible for an injury that has already happened. Hindsight bias can cause a jury to overestimate the care that a defendant should have provided in a particular case, resulting in more blame than warranted for injuries that have already happened. Figuring out how to address the effects of this type of jury bias is just one example of how behavioral science is helping test the assumptions the law makes about human behavior.
Professional responsibility scholars have also been making inroads, arguing that legal ethics is ripe for this type of behavioral analysis. Whether we are considering conflicts of interest by lawyers, the standards used to determine if someone has the moral character to be a lawyer, the role of supervisors in subtly encouraging unethical behavior by subordinates, the power of conformity in organizational settings, or in many other areas, behavioral science has much to teach us about how unethical choices are made, even by lawyers who possess the best of intentions.
Brian Gallagher is Ethical Systems’ Communications Director. Follow him on Twitter @BSGallagher.