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A decade ago, the comedian Steven Colbert invented the word “truthiness,” a word that means “truth that comes from the gut, not books” and “the quality of preferring concepts or facts one wishes to be true, rather than concepts of facts known to be true.” Truthiness encapsulates how humans often make decisions – motivated by a gut feeling and then backtracking, if pushed, to justify the conclusion.  We often arrive at the answer we want to be true, sometimes at the expense of the answer that is supported by the evidence.   Our brain has developed many tricks to help us tie up the annoying loose ends and quell any disturbing cognitive dissonance as well. 

The Problem with Truthiness

Understanding the human propensity towards truthiness, and taking steps to combat it, will make you a more successful law student and lawyer in several ways.  First, you may be using “truthiness” to make important decisions.  Unless you have expertise, this approach to decision-making is bound to backfire when the facts stubbornly pop up and undermine you sometime in the future.   

Second, you have to understand that your client, judges, jurors and a host of actors in the legal system are also using “truthiness” frequently to make important decisions.   If you remain oblivious to these problems, you may be surprised when your logical arguments and careful analysis are swept aside in a jury vote or a judge decision.   What might have happened?  The decision-maker(s) cherry picked facts and law that fit their gut as to the right outcome.  It is an occupational hazard in any job dealing with humans.  You have to be prepared. 

Psychologist Daniel Kahneman won the Nobel Prize for his empirical work dealing with humans and their love-hate relationship with rational decision-making.  He has described two types of brain activity, which you can read about in his book Thinking Fast and Slow.  System 1 thinking is the quick intuitive mode that lets us zip through the world on cruise control, deferring to unconscious thought processes. 

System 2, on the other hand, refers to the thoughtful mode – reasoning and logic – that require effort.  In contrast to the relative ease of performing system 1 thinking, system 2 and its processes of deliberation feel like a lot of work and we often defer to system 1.  It is simply easier to “go with your gut.”  Examining what underlies gut reactions and intellectually justifying them can be frustrating, time consuming, and difficult because it requires thinking.  So going with truthiness is much easier on the brain and your brain will fight for its leisure time.

Slow is Better, Sometimes

Yet the gut reaction is dangerous until you are sure your gut knows what it is doing.  The brain’s quick “intuitive” response is not always the right response.  Gut reactions may be based on stereotypes, cognitive biases (which I will talk about in the next few posts), short-term optimism, or incomplete information that can lead you to the wrong conclusion in law school and practice.  

Before you should feel at ease in exercising quick judgments, you have to make sure you are basing your reactions on the right stuff.  As we gather expertise in the law, our gut reactions can be trusted on some matters.  If you have years of experience as a litigator, you probably have picked up some knowledge about jury behaviour and you might trust your gut partially in this high stakes situation.  But during law school especially, take precautions against letting truthiness drive your intellectual response.  The first step is to understand the need to override the automatic reaction lest you quickly come to the wrong conclusion. 

For example, many people might initially voice wholehearted support for free speech – “Yes, of course I support this valuable constitutional right.”  But when confronted with examples of flag burners, potential terrorists, or racists – not to mention assorted annoying people bothering you at parks or ringing your doorbell - they may find the protection of free speech in individual cases unpalatable. 

Justifying the suppression of speech in the case of certain individuals - and not others - requires reflective consideration of the reasoning and consequences of the rules.    When forced to articulate the reasoning behind a position, simple inconsistencies or gaping holes in reasoning may be exposed because relevant factors or long term issues have not been considered.  The Socratic method, although annoying, is an exercise in poking System 2 thinking to justify System 1 responses.  

A Cure for Truthiness: Become a Skeptic

A more skeptical attitude can help you uncover hidden and perhaps wrong assumptions across a variety of issues.  That skepticism starts with the best way to approach learning and it may not be what got you through college.  

Your skepticism in law practice should extend to the facts (investigate the client’s story carefully), laws, policies, and even the desired result of any legal action.  For example, the lawyer may assume winning a monetary judgment is the best result, because in the legal business, money is often considered the best result.  But a particular client might want her job back, an apology, or even a better relationship with the opponent. 

Once you have adopted a more skeptical stance with regard to your own gut, you will need to anticipate and rebut the gut reaction in other people.  That point may seem obvious but a lawyer, ironically, can become so steeped in the case that she forgets that others’ minds exist with different understandings.  For example, a client’s gut reaction may be that they want to file a lawsuit or not settle for less than the moon and the stars, but they are often uninformed of the legal barriers, not to mention the emotional toll of legal actions.  They exhibit “future blindness” or the inability to understand that which they have not yet experienced.  The lawyer’s role is to fill in these gaps of information to help the client see the full picture and make a more thoughtful decision. 

Understanding the brain’s gravitation to the gut helps you anticipate and respond to judge or jury reactions.  If you are fighting a gut reaction negative to your case, it is critical to understand the basis of that reaction if you are going to successfully dislodge it.  One possibility is to re-frame your case, a concept that I will talk about in a future post.  In the meantime, be careful of the lure of truthiness.  

Marybeth Herald is a law professor at Thomas Jefferson School of Law and author of Your Brain and Law School.