This week, we look at what happens when we’re faced with overwhelming choice (whether actual or perceived) in our lives, what the research says, and two things lawyers can do better.
If you’re fortunate enough to live in a developed country and also have Internet access to read this post, count your lucky stars.
Did you realise that if you earn more than AUD$40,000 a year, you’re in the top 1.81% richest people by income in the world? Think about it. It’s mind-boggling. To put things in perspective, check out this website.
Google however tells us that there is never enough. Its predictive search function is a revealing foray into our collective minds. It reflects both the humorous and materialistic. For example, typing ‘you are rich if…’ brings up the following results:
I’m not entirely sure how you’ve made it in this life if you ‘own a gas station’. Change this search phrase slightly to ‘you are rich if you…’ and the dollar signs start making their way into the picture.
What I’d suggest is for Google to incorporate the annual inflation rate. This is to ensure that these monetary values don’t lose their currency (pun intended).
In any event, we hardly think twice about how skewed this result is. A significant proportion of English speakers live in materially (or materialistically) wealthy countries.
Too many choices, not enough time
In a world obsessed with material wealth, we barely talk about the kinds of problems in a world with too many choices—or perceived choices. For example, a high school student might have the following choice matrix:
- Should I go to university or trade school?
- Should I study Arts or Medicine or Law or Engineering or Science, or …?
- Should I go travelling or save up?
- Should I have pasta, rice or potatoes for dinner?
- The list is never-ending.
Lawyers are no different from everyone else. Have you heard of the ‘keep your options open’ mantra? Ironically, it can result in more confusion and uncertainty. ‘Keeping your options open’ defers the need to make hard choices.
Some choices close the doors to other options for a significant period of time. For example, choosing one profession can close the door to other professions for at least some time. Our inner-realist tells us that we close doors to other options by making certain choices. Our inner-optimist would say that you simply open different doors.
One thing is clear. We recognise the opportunity cost of choosing one option over another. However if we adopt the mantra of ‘keeping options open’ throughout our lives, it can mean that we never commit to making hard choices.
I wrote a silly limerick this Friday evening, as you do.
There was once a man from Analysis
Who had serious decision paralysis
He drank some wine
And then was fine
‘Oh!’, said he, ‘that wine started a catalysis!’
No wonder wine is so popular amongst lawyers. I jest.
On a more serious note, decision paralysis is a very real issue in modern society. It is with some irony and circularity that we also have the choice to be paralysed by our choices. So without further ado, let’s get to what you’ve been waiting for—the curious case of the gourmet jams.
At the turn of the 21st century, two researchers from Columbia and Stanford investigated this precise question. They wrote a paper titled ‘When Choice is Demotivating: Can One Desire Too Much of a Good Thing?’. The short answer is yes. You can read the full paper here, or my foray below.
I note that our researchers ran these experiments before the ubiquitous rise of web search engines. (Remember those days when Yahoo was still hip?) Nonetheless, these experiments are still relevant to how humans deal, or fail to deal, with overwhelming choice.
Experiment 1: The gourmet jams
Shoppers at an upscale grocery store encountered a tasting booth for gourmet jams. They either saw a limited (6) or extensive (24) selection of jams. The experiment ran over two weekends.
More shoppers approached the tasting booth when it displayed the extensive selection of jams. 60% approached, compared to 40% for the limited selection.
However, the results were striking when it came to the important decision to buy. In the extensive-choice scenario, only 3% of the shoppers who approached bought a jam. In the limited-choice scenario, 30% of the shoppers who approached bought a jam.
When faced with mind-boggling choices, most humans choose to completely defer decision-making.
Experiment 2: The uni essay topics
Our researchers gave students in an introductory social psychology class the opportunity to write a two-page essay as an extra-credit assignment.
Students split into two groups. The first group had to choose an essay topic from 6 potential topics. The second group had to choose from 30 potential topics. They were told that their performance on the assignment would not affect their class grades. Submitting the essay in itself would earn them two extra points on their next mid-term.
Unbeknownst to the students, our researchers assessed intrinsic motivation by looking at two factors:
- the percentage of students who completed the assignment; and
- the quality of essays written.
In the limited-choice condition, 74% of students submitted an assignment. In contrast, only 60% of students submitted an assignment in the extensive-choice condition. As for the quality of essays, students in the limited-choice condition performed slightly better[*] than students in the extensive-choice condition.
[*] For all you statistics nerds out there, the difference was statistically significant.
Experiment 3: Bring out the chocolate bribe
To address any flaws that might have cropped up in the previous experiments—and to confirm the choice-overload findings—our researchers ran a third experiment. This time, they recruited students from Columbia University for a chocolate experiment. It involved choosing an array of chocolate under three conditions:
- extensive-choice (30 chocolates);
- limited-choice (6 chocolates); and
- no-choice (our researchers chose for them).
Hilariously, our researchers had to consider that chocolate might not entice some students. Part of their experimental design involved the following:
‘To eliminate any participant who might have an aversion to chocolate, all potential participants were prescreened on the basis of two questions. First, all potential participants were asked, “Do you like chocolate?” Only those who responded “yes” to this item were then recruited to be participants in this study.’
To cut to the chase, the researchers found that the participants in the extensive-choice condition:
‘… enjoy the choice-making process more–presumably because of the opportunities it affords–but also feel more responsible for the choices they make, resulting in frustration with the choice-making process and dissatisfaction with their choices. Indeed, participants in the extensive-choice condition reported experiencing the decision-making process as being simultaneously more enjoyable, more difficult, and more frustrating. Later, after actually sampling their chocolates, extensive choice participants reported being more dissatisfied and having more regret about the choices they had made than did limited-choice participants.’
So what do these experiments tell us us about choice? We can’t avoid the need to make plenty of decisions daily based on the extensive, or some would say excessive, information available to us. But we should be developing some principles and parameters for making better decisions. A topic worthy of another blog post, but for now, let’s check out two practical tips for legal practitioners.
What this means for lawyers
If you’re a lawyer or law student, these experiments are particularly pertinent. Here are two ways that we can manage the gourmet jams in our lives.
Tip 1. Ban your scattergun approach
When faced with a legal question, I find it helpful to start by collecting my thoughts. I find that the easiest way is to write down, in a succinct way, the question I want to answer. This sets the parameters for my inquiry. Written down, it is easy to work out if you’ve deviated from the actual question you’re trying to answer. It does wonders in focusing the mind.
If I’m unsure about the area of law, I go straight to a good textbook or commentary on the topic. There is nothing worse than using a scattergun approach by typing a few keywords into a case search database and trying to work it all out from there. Even Google does a better job locating relevant articles and cases. A search engine I sometimes find helpful is Fee Fie Foe Firm. It trawls through articles published by Australian law firms.
Finally, always go back to first principles. There’s no need to reinvent the wheel. If you have a good textbook, you’ll realise that someone has already done all the hard work. It’s your job to apply the established legal principles with skill.
At this point, resist the urge to over-complicate matters. Convoluted arguments tend to be garbage and are bound to raise eyebrows. Lawyers often fall into this trap when trying to execute some fancy footwork. Or when they attempt to hide the elephant in the room under a carpet. Which leads me to my next point.
Tip 2. Use logic, not mologic
The next tricky task is making sure that all our arguments are consistent. This is crucial where you seek to rely on the following chain of logic:
If not X then Y, if not Y then Z.
During my time as a judge’s associate, logic did not always reign supreme at the Bar table. There were times when a barrister would seek to put forward all possible contentions. This was even if a contention or result was logically inconsistent with the others.
Barrister: Your Honour, I submit that in the alternative…
Judge: [One eyebrow raised] You realise that you can’t have both.
Barrister: Yes… your Honour…
A good barrister immediately drops the alternative argument.
The solution to this is to pick your strongest argument and run with that. Covering too many bases detracts from the strength of your overall case. I think this principle applies equally to many areas of life.
The Australian High Court judge, Justice Keane AC, noted this problem in a 2015 speech to the Queensland Bar Practice Course:
‘A common complaint of judges about barristers is that the arguments presented by the Bar are becoming less helpful because of the undue length and complexity of the arguments presented for our determination.
The length and complexity of Counsel’s arguments do pose real problems for judges in trying to digest the cases of the parties and they can cause judgments to be unnecessarily lengthy and complicated.
Experience over the last three decades has shown, I think, that some barristers, writing in their chambers free from the pressures of oral argument, put their names to written arguments that they would never put orally, in open court. When the case comes to court, there is the annoying ritual incantation: “We rely upon our written submissions.”
And so the judges are left to write lengthy essays about issues no one really cares about.
There is the somewhat harsher view that the problem of overly elaborate arguments presented by Counsel is due to a diminution in the judgment and courage of modern barristers.
In this view, the multiplicity of arguments and their diffuse articulation are symptoms of an inability on the part of Counsel, whether through lack of experience or learning or judgment, to pick their best argument, to state the good point succinctly and to stick with it. …’
So don’t let the Fear of Missing Out (or FOMO) get to you. Less is often more.
Finally, let’s not forget the importance of rest and switching off from this ever-connected world from time to time. It’s only then that we can start making better decisions.