Lawyers making business decisions - thinking slow, thinking fast or not thinking at all?

Unless you lived under the proverbial rock in a desert for the past 7 years, you will have heard of Daniel Kahneman’s book, “Thinking, Fast and Slow.” In it, he proposes that we have two modes of thinking: "System 1" is fast, automatic or instinctive, and emotional; "System 2" is slower, more deliberative, effortful, and logical.

These aren’t two distinct groups that have an insurmountable wall between them. For example, when we first learn to drive a car, we engage System 2 thinking, but over time, we gain expertise and intuitive processing skills which are governed by System 1 thinking. You can, no doubt, think of many such “migrations,” including, in the legal profession, where newly qualified lawyers and veterans approach issues with different thinking systems.

We need to look deeper into decisions made in System 1 mode. Intuition is difficult to decipher: it can be expertise-based, but sometimes it’s just a quick associative response that isn’t backed up by any expertise. The latter is often made because System 2 requires time and effort - something we are often not prepared to invest.

That approach is prevalent when lawyers make business decisions. Over the years, I’ve observed countless practitioners on executive committees, in practice leader positions, or other “management roles,” make decisions intuitively and quickly when they really should have been engaging System 2 thinking. But they weren’t willing to put in the time and effort. Plus, they actually thought they had "good intuition" because no one was around to tell them otherwise.

Shouldn't we reflect on our approach to making decisions? Are we thinking slow, thinking fast or not thinking at all?