Uber, Behavioral Economics, Choice Architecture and Trial Work

There is a lot of discussion on whether lawyers should be required to have at least a certain degree of competency with technology as a core skill set, on a par with, for instance, the rules of evidence. Personally, I am not convinced of the need for any formal requirement: technology is so embedded in any efficient provision of legal services to a client and in any interaction with essentially any business client of any size, that simple economics are going to eventually drive to the margins any lawyer who cannot, on a day in, day out basis, engage with technology on an at least marginally competent level. In other words, there is no need to regulate the profession to ensure such competence, as the marketplace for legal services will do it for state bars and any other regulator: slowly but surely, lawyers who are not technologically proficient will be sidelined by the invisible hand of the market, regardless of what any professional licensure group does or does not do with regard to ensuring professional competence in the area of technology.

Now by this, I certainly do not mean that every lawyer needs to be a coder. But the ability to understand their clients when they talk about coding, or to understand both the tech and reasoning behind electronic discovery, is a core competency in this day and age. Those who can’t demonstrate it, won’t be practicing for much longer.

Its an interesting issue not because of any urgency in mandating technological proficiencies for lawyers – as noted, I think the marketplace will regulate that all on its own – but because it points to the importance of a broader knowledge base for representing clients, and the extent to which a competency in the core social sciences is more necessary, but much less sexy than talking about, competency with technology. I was reminded of this by this discussion of behavioral economics and choice architecture in this extensive New York Times article on Uber’s use of choice architecture to manipulate (too harsh a word? maybe manage is fairer, or at least less pejorative) the driving habits of its drivers. The article notes that:

Sometimes all that is necessary is the mere setting of a so-called default. Because humans tend to be governed by inertia, automatically enrolling them in retirement savings plans and then allowing them to opt out results in far higher participation than letting them opt in. Making Post-Play the default can have the same effect.

“If done right, these things can be socially beneficial,” Mr. Laibson said. “But you can think of all sorts of choice architecture that are quite contrary to human well-being.”

Even Mr. Hall, the Uber research director who downplayed the importance of behavioral economics to the company, did make at least one concession. “The optimal default we set is that we want you to do as much work as there is to do,” he said of the company’s app. “You’re not required to by any means. But that’s the default.”

As an ERISA lawyer, I am quite familiar with the concepts of choice architecture, and the uses to which it can be put, given its central role, at this point, in approaches to retirement plan design. In fact, it is interesting to note that it is this use of the concept that the author of the article on Uber holds up as an example of a benign use of the concept. But I am also familiar with it and comfortable with its use in other contexts, including trial presentation.

A few years back, when behavioral economics and choice architecture were first moving out of the theoretical and into practical application in retirement plan work, I was trying a long case in front of a jury and, right before the end of the trial, the judge asked the parties to agree upon special questions for the court to submit to the jury. For those of you who aren’t litigators, special questions are typically a series of questions that a jury has to answer in deciding a case. In certain complex cases with lots of moving parts, they can end up being a series of questions that the jury is asked to answer in order, with the answer to one question then leading to a couple of possible answers on the next question, and so on. In those types of cases, the special questions essentially become a decision tree, with the answers along the way eventually leading the jury to a final conclusion in favor of one party or the other. For a defendant, this kind of detailed special questions can often be very helpful, because typically a jury can end the case in the defendant’s favor at any of several decision points in the series of questions; for a plaintiff, they are often disadvantageous, because in most cases a jury will have to find in the plaintiff’s favor on each question in succession to find a defendant liable.

As is typical in these types of things, the judge made this request on the last day of witness testimony, with the jury hearing the parties’ closings and then being given the case – including the special questions – the next day. This means that the lawyers on both sides have to work out and agree upon the special questions during the night, while simultaneously trying to finalize their proposed jury instructions and draft their closings to the jury. For many lawyers, as you might imagine, the special questions get short shrift over the course of the night, in favor of time spent on the jury instructions and the closing (trial lawyers are all hams, of course, so naturally writing the closing almost always takes pride of place in prioritizing these items). At that trial, however, I could see that choice architecture could be woven into the special questions, creating a series of questions that, unobtrusively, could influence the jury’s progress through the decision tree that the special questions presented to them. Moreover, it appeared that certain ways of structuring their decisions – primarily in terms of the order in which they passed on certain points – would make it more likely that, at some point along the run of questions, the jury would end up with an answer that would end the case in my client’s favor, rather than continuing along to the remaining questions. The lawyers on the other side of the case, clearly lacking even a passing familiarity with the concepts of behavioral economics and choice architecture, agreed to the structure that we proposed, and, eventually, the jury did in fact find in my client’s favor as it worked its way through the list of questions, somewhere about halfway through the eight or nine questions.

Now, I am not saying this decided the case. In fact, I am quite certain it was my stellar closing that won the case (every trial lawyer thinks every jury case they have ever won turned on their closing, and that every jury trial they have ever lost turned on legal errors by the judge), but the structure of the jury questions certainly didn’t hurt.

So, at the end of the day, is there a point here? Well, Steve Martin wrote in a memoir that the first time he appeared on the Tonight Show, Johnny Carson, during a commercial break, told him that the thing about comedy is that you end up using everything you have ever come across in your life. I think courtroom work, and trial work in particular, is like that, and not understanding current thinking on choice architecture leaves a hole in the knowledge base that a good lawyer should bring to that work. At the end of the day, knowing the key social science concepts of human behavior is a lot more important than simple technological proficiency, but it is the latter, not the former, that the legal industry seems to be focused on currently.