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Book Review R Birke Summer 2013 Magazine-8

Book Review R Birke Summer 2013 Magazine-8

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Published by sandra_rodiguez7255
Saltman Director Sternlight's book, "Psychology for Lawyers: Understanding the Human Factors in Negotiation, Litigation, and Decision Making" was recently reviewed in the Dispute Resolution Magazine.
Saltman Director Sternlight's book, "Psychology for Lawyers: Understanding the Human Factors in Negotiation, Litigation, and Decision Making" was recently reviewed in the Dispute Resolution Magazine.

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Published by: sandra_rodiguez7255 on Sep 03, 2013
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Summer 2013 27
Psychology for Lawyers: Understanding the Human Factors in Negotiation, Litigation and Decision Making 
A welcome volume that is thorough,readable, entertaining and educational
Reviewed by Richard Birke
Starting with the Conclusion
Psychology for Lawyers
is a great book. Whether youare a transactional lawyer, a litigator, a managing partneror a mediator, you owe it to yourself to buy it, read itand build its lessons into your practice. Authors JenniferRobbenolt and Jean Sternlight have produced a bookthat is thorough and readable, based in theory yetimminently practical, and as entertaining asit is educational.The book consists of 15 chapters.The first seven are a primer inpsychology, the next seven applypsychology to legal practice and aconcluding chapter helps the readeruse psychology to achieve satisfac-tion as a lawyer and as a person. Ina mere 460 pages, the authors bringlawyers a wealth of information. Inmy view, this is a clear best-in-classand a “must buy.”Now that the conclusion is allwrapped up, we can work our wayback from the beginning. We’llstart with some history.
A Brief History of theIntersection of Law andPsychology
For most of history, the intersec-tion between law and psychology has been dominatedby a single question: whether a criminal defendant lacksthe capacity to understand whether his actions are rightor wrong. If Wikipedia is to be believed, “not guilty byreason of insanity” was argued in the time of Hammurabi.In more modern times, criminal law continued todominate the law-and-psychology discussion. In her aptlytitled 1979 opus, “Eyewitness Identification,” psychologistElizabeth Loftus showed that cross-racial identificationstended to be particularly unreliable and that eyewitnesstestimony was subject to the vagaries of human memory.Even more recently, Loftus and other psycholo-gists began to grapple with false, altered orimplanted memories in cases involvingallegations of sexual abuse.While the intersection mayhave expanded, a mere smidgenof the law — that is, the criminallaw — has enjoyed all the attention.And it still enjoys the lion’s shareof attention by those who study thescience of mind. The MacArthurLaw and Neuroscience Project’semphasis on free will and criminalityis just one example of this continu-ing fascination.For about the last three decades,law professors teaching negotiationhave become aware of the relevanceof cognitive and behavioralpsychology to the practice of law.In the late 1980s, professorRobert Mnookin (then teaching
Richard Birke
is Professor of Law and Directorof the Center for Dispute Resolution at theWillamette University College of Law. He thanksall his colleagues for their continued interest in lawand the science of the mind. He can be reached atrbirke@willamette.edu or http://www.willamette.edu/wucl/faculty/profiles/birke/.
Book Review
28 Summer 2013
at Stanford) brought psychologists Amos Tversky andLee Ross together with economists, game theorists andlawyers to explore the intersections between legal nego-tiation and psychology. At least since 1991 (when I wasenrolled in one of his classes) and probably long before,Harvard’s Roger Fisher designed modules in his negotia-tion courses in which psychologists would help guide alegal negotiator through the journey toward understand-ing interests.In the past two decades, these collaborations betweenlegal academics and psychologists have borne a greatdeal of scholarly fruit. Many terrific book chapters,articles and even the rare self-contained volume describethe various connections,overlaps and intersectionsof negotiation and psychol-ogy. The aforementionedTversky and Ross each wroteimportant chapters in a bookentitled “Barriers to ConflictResolution.” Mnookin haswritten and spoken exten-sively about the topic of psy-chological barriers to conflictresolution. Shortly beforehis passing, Fisher wrotewith Dan Shapiro about the role of emotions in negotia-tion. Russell Korobkin, Chris Guthrie, Jeff Rachlinskiand many others (including myself and the authors of 
Psychology for Lawyers
) have added articles about theimportance of understanding the human component of negotiation and decisions, and in particular, the kinds of negotiations and choices that lawyers see in their work.However, despite all this great progress in the field,until Robbenolt and Sternlight wrote the book thatis the subject of this review, no one had captured allthe essentials in a single volume. The closest thingis a well-regarded article in the
Ohio State Journal of Dispute Resolution
titled “Good Lawyers Should be GoodPsychologists.” That article was written by — you guessedit — Robbenolt and Sternlight. Their new book is the fullexpression of the vision that began with that 2008 article.
Merely a Slice of the Psychological Pie
Psychology is a sprawling discipline, and the psychol-ogy section at any large bookstore (remember those?)might contain thousands of volumes. So in a mere 460pages of text, Robbenolt and Sternlight wisely refrainfrom taking on the entire field of psychology and omitdiscussion of aspects of psychology that are not directlyrelated to lawyering. For example, there is no discussionof developmental psychology, and neither Freud nor Jungmakes an appearance in the book.The first seven chapters are a primer on those aspectsof psychology that apply to the common activities of the lawyer. The topics and the titles of Chapters Onethrough Seven, in order, are:• Perceiving and Understanding the World• Memory• Emotion• Judgment Shortcuts• Decision Making• Persuasion and Social Influence• Interpersonal CommunicationThis is a phenomenal 162 pages of material. Up untilnow, when laypeople wanted to learn about how thehuman mind can be tricked and misled, I (and others)would recommend ScottPlous’
The Psychology of  Judgment and DecisionMaking 
as an introductorybook. It was recommendedto me in 1993, and I’ve rec-ommended it dozens of timessince. With all due respectto Professor Plous, I nowwill recommend the firstseven chapters of Robbenoltand Sternlight’s book —especially to lawyers. Theauthors have packed moreinto their 162 pages than any other work I’ve seen, andit’s accessible (as the Plous book also is) and current(which the Plous book is not).These seven chapters cover a wealth of materialconcisely. For example, Amos Tversky and DanielKahneman’s Nobel Prize-winning work, known asProspect Theory, fills thousands of pages in a wide varietyof prestigious journals of medicine, psychology, businessand law (of course you remember this theory — losseshurt more than commensurate gains feel good; we arerisk-seeking in the face of losses and risk-averse in thedomain of gains — mostly; and whether something is again or a loss can be a cognitive illusion). But few lawyersin a busy practice have time to wade through all thatliterature and figure out how the theory applies to thecases sitting on their desks.Robbenolt and Sternlight have synthesized all this intoa three-and-a-half page summary that includes a quotefrom a Supreme Court Justice and good advice on howto spot this psychological concept at work. So it is withliterally hundreds of psychological principles. Robbenoltand Sternlight have collected and distilled, organized andpresented vast amounts of psychological source material inuser-friendly chunks, in an accessible, user-friendly order.Each lesson stands alone and does not require furtherexplanation. At the same time, the lessons inspire thestudent to learn more. While the first seven chapterscan stand on their own as a primer in the psychology
Robbenolt and Sternlight wiselyrefrain from taking on theentire eld of psychology andomit discussion of aspects ofpsychology that are not directlyrelated to lawyering.

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