The beginning, the middle, as well as the end of it all, is wordsthe words that we hear, that we read (on

faces as well as pages), that we exchange, that we write, that we say, that we argue, that are transformed into understanding, into analysis, into reasoning, into choices, into decisions, into actions, into positive results. Lawyers lay historical claim to being a profession that engages in the difficult work of helping other people make the proverbial world go around, including affirmatively contributing to the resolution of disputes where in the best case the outcomes are pragmatic compromise and clear forward motion rather than the fury of stalemate or the despair of defeat that is a dead-end. That assertive claim is to add more than just another laboring oar but to include empathy and intelligence along with labors usual blood, sweat, and tears. To begin with, it demands the mastery and performance of the nontrivial and substantial tasks of attentive listening and observing. Whether the task is an altercation between children, friends, family, strangers, business entities, or nations there are personality characteristics that a diligent lawyer will intensely listen to, observe, as well as read and digest the writings from, as well as to scrutinize thoroughly a morass of relevant evidentiary facts (and pray never ever forget Sherlock Holmes observation in Conan Doyles Silver Blaze that what was most important was what did not happen the dog did not bark). Effective and honest listening is a talent and skill that requires endless attention and effort. Our egotistical minds would much rather run-off in eleven different directions than to stay focused on the here and now and this is especially the case where what there is to be heard is poorly articulated, a muddle of emotions plus facts, a recapitulation where important things may be missing, a catharsis as much as a story with coherence. Just as a Hindu yoga, such as Ram Dass (who formerly was Richard Alpert, a tenured Harvard professor of psychology), counsels that we be here, now, this principle of focus is brilliantly portrayed in a famous dialogue between the brilliant

Swiss scientist Louis Agassiz and an eager graduate student (E. Pound, ABCS OF READING, Routledge, 1934): A post-graduate student equipped with honours and diplomas went to Agassiz to receive the final and finishing touches. The great man offered him a small fish and told him to describe it. Post-Graduate Student: Thats only a sunfish. Agassiz: I know that. Write a description of it. After a few minutes the student returned with the description of the lchthus Heliodiplodokus, or whatever term is used to conceal the common sunfish from vulgar knowledge, family of Heliichtherinkus, etc., as found in textbooks of the subject. Agassiz again told the student to describe the fish. The student produced a four-page essay. Agassiz then told him to look at the fish. At the end of three weeks the fish was in an advanced state of decomposition, but the student knew something about it. Nobel prize winner Daniel Kahneman challenges us one and all in THINKING FAST & SLOW, Farrar, Straus & Giroux, 2011 to comprehend our vulnerability to cognitive illusions. Most prominently he admonishes us to appreciate that we are biologically programed to most of the time think fast. System One is amazingly fast, allowing us to recognize faces and understand speech in a fraction of a second. It must have evolved from the ancient little brains that allowed our agile mammalian ancestors to survive in a world of big reptilian predators. Survival in the jungle requires a brain that makes quick decisions based on limited information. Intuition is the name we give to judgments based on the quick action of System One. It makes judgments and takes action without waiting for our conscious awareness to catch up with it. The most remarkable fact about System One is that it has immediate access to a vast store of memories that it uses as a basis for judgment. The memories that are most accessible are those associated with strong emotions, with fear and pain and hatred. The resulting judgments are often wrong, but in the world of the jungle it is safer to be wrong and quick than to be right and slow. This is the system that a good lawyer needs to supplement (or in automotive jargon turbocharge) as he or she walks into a meeting with clients. This is the system that the better lawyer also turns-on as he or she begins to observe the room and the people in it.
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System Two is the slow process of forming judgments based upon conscious thinking and the critical examination of evidence. It appraises the actions of System One. It gives us a chance to correct mistakes and revise opinions. It probably evolved more recently than System One, after our primate ancestors became arboreal and had the leisure to think things over. An ape in a tree is not so much concerned with predators as with the acquisition and defense of territory. System Two enables a family group to make plans and coordinate activities. After we became human, System Two enabled us to create art and culture. The question then arises: Why do we not abandon the error-prone System One and let the more reliable System Two rule our lives? Kahneman gives a bitter but simple answer to this question: System Two is lazy. To activate System Two requires mental effort. Mental effort is costly in time and also in calories. Precise measurements of blood chemistry actually show that the consumption of glucose increases when System Two is active. Thinking is hard work, and our daily lives are organized so as to economize on thinking. Many of our intellectual tools, such as mathematics and rhetoric and logic, are convenient substitutes for thinking. So long as we are engaged in the routine skills of calculating and talking and writing, we are not thinking, and System One is in charge. We only make the mental effort to activate System Two after we have exhausted the possible alternatives. As a professional lawyer, each of us is obliged to engage both of our systems of fast and slow thinking for the benefit of his or her clients. These benefits include (a) the dividend of us straining to hear what the clients complaint is really about (nota bene that it may well be something that is not amenable to a legal remedy!), (b) apprehending the facets of the clients distress plus an initial sense of the dimensions of the problem from the clients point-of-view, (c) beginning to begin to categorize and characterize the legal issues that may lurk inside this Gordians Knot upon closer examination. And these are only the beginning steps of compassion plus wisdom that a 21st century advocate and jurist are ethically and professionally obliged to marshal in the task of his or her having that first interview with a new client. #30
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