In the law, the way we understand strength is often misguided by unconscious bias.
Certain lawyers are preferred over others. Certain firms are preferred over others. But whilst the assumptions that underpin some of these preferences pervade industries beyond the law, it seems that through the often stressful and emotionally charged environment of dispute resolution, there is a heightened risk of failing to interrogate our decision making. This not only perpetuates inequities, but leads us to experience ineffective outcomes for ourselves.
David and Goliath: A misunderstood story about strength
In today’s language, David and Goliath is a metaphor used to describe improbable victories. However, when we look closer at the story of David and Goliath told in Malcolm Gladwell’s book by the same name, there are interesting comparisons to the way many of us understand strength.
By being conscious of these perceptions, we may improve our ability to make more informed and effective decisions.
Gladwell shares the story of David and Goliath in the following video (which is also summarised below)…
3000 years ago, in the mountains of Israel, two armies perched on opposite sides of a valley stared across at each other for weeks, waiting for the other to attack.
Both armies realised that in order to attack the other, they needed to descend the mountain into the valley and up the other side – critically exposing themselves to their opponent. It was a stalemate.
Eventually, one side sent out their strongest warrior as an offer of one-to-one combat to determine the victor. They sent down a behemoth of a man. He was enormous in stature, coated in iron armor, wielding veining muscle and a craning sword. No one from the other side wanted to fight him.
The only person from the opposing army that offered to take on the giant was a shepherd. The shepherd was half the giant’s size, but explained to his army that he had been defending his flock of sheep from wolves and lions for years using a sling.
Since no one else stepped forward, the shepherd was chosen. The shepherd’s army insisted he take armor and a sword with him for protection, but the shepherd refused, since he had only ever used his sling before.
When the giant saw the shepherd approaching, he beckoned him to come forward to die, taunting that his measly sling was nothing but a stick.
Unfazed, the shepherd paused at a distance from the giant, picked out a stone from his bag, spun his sling around and hurled a stone straight into the giant’s most vulnerable spot: right between his eyes. The giant immediately fell to the ground, either dead or unconscious.
The shepherd closed in, stood above the giant and cut off his head with the giant’s own sword. The giant’s army turned and ran.
The giant was Goliath. The shepherd was David.
What this story reveals about how we misunderstand strength:
The relevant inputs for strength
The story of David and Goliath reveals that what we think of as strengths are not always helpful. Goliath had more armour but was consequently slower. He had a more frightening weapon but was limited to using it within arm’s reach. Gladwell poses that Goliath’s size may have been caused by genetic defects that affected his ability to even see David.
Qualities appearing to be sources of strength can often be the greatest sources of weakness. In litigation, aggression is, unfortunately, a prevalent example. The occasional client still requests a lawyer that will be a ‘head kicker’ to get the job done. But is this a desirable strength of a lawyer?
Generally, the more aggressive, bombastic, outrage filled, condescending or just plain rude a position is put, the less substance in the underlying argument. A lawyer who bashes the table to try and achieve a result will invariably be masking a lack of thought and effort. And if a lawyer’s job is to persuade, it is difficult to see how condescension will improve the chances of success – rather, it is more likely to entrench positions.
By contrast, underestimating an underdog’s strengths leads us to be continually surprised by their victories. In David and Goliath, David ticks all the boxes of an underdog as a smaller and ostensibly weaker opponent. Comparing the sheer force of Goliath’s sword and armour to David’s sling, you would not think twice about the outcome. But when the assumption of hand-to-hand combat is removed, David is clearly stronger. He has a plan for attack, is far more accurate with his choice of weapon and more appropriately estimates the strengths of Goliath. David had exactly what was required to win: the ability to expose his opponent’s most vulnerable spot.
By comparison, what is the most powerful weapon of a lawyer in any dispute? A simple, cogent argument supported by evidence delivered in a respectful and modest manner. In litigation, the more effective lawyer is the more precise, forensic, analytic, and thoughtful. In the arena of the legal system, a person with these qualities should win every time. So how is it that we become distracted by ancient virtues of strength? When an underdog has the strengths relevant to the situation at hand, why is it that we are surprised when they defeat a giant?
Extending the relationship between strength and performance beyond sense
If we hold subconscious perceptions about strength, it can also follow that we extend our expectations of their impact on performance beyond reality, or sense. Higher price, better lawyer. A firm with more resources, more likely to win.
However, there reaches a point when more may not equal better. Beyond a certain point, more of a seemingly good thing can have the reverse effect, which Gladwell refers to as the ‘inverted U-shaped curve’. It may be that the larger the system, the more difficult it becomes to solve problems collaboratively. A solution that is formed too quickly may lack the required understanding and investigation to ensure its quality. A higher price may subconsciously prevent us from questioning the advice we are receiving.
It can be difficult to consider, but also damaging not to realise that there are certain material or popular advantages that might actually limit us.
It is no secret that a gender bias exists in the law, and it is perhaps where the warped relationship between strength and performance is most discomforting. Male lawyer, more likely to be aggressive, more power, more effective.
According to The Law Council’s 2014 National Attrition and Re-Engagement Study (NARS), female barristers are “more likely than other females to report experiencing discrimination due to gender” and reported “being denied briefs because clients preferred male counsel.”
One reason for this could be the assumption that male lawyers are stronger, or more assertive, negotiators. Could the accuracy of this assumption be tested for its influence in dispute resolution? A recent study suggests that whilst women are not as good as men at negotiating for themselves in a business environment, when comparing experienced and well informed negotiators, women outperform men when they negotiate on behalf of someone else.
So what is it about the law that encourages the amplification of bias?
Clients approach lawyers facing difficult situations. Choosing a lawyer is the first, and often least informed decision to be made. It is therefore wrought with the most unknown, anxiety, and fear, which is perhaps the perfect setting for rational thinking to escape us.
But when we trust in society’s generally held values of what is better, we are not interrogating what it is we really get. We leave our own personal experience, and our own outcome, up to chance.
So when we engage a lawyer, the impressions we may form about them should not replace the questions we ought to be asking. Does this lawyer understand my objectives and priorities? Is there a plan for resolving my dispute? Am I being helped to understand what is included in the price? Am I being informed enough to be involved in decisions? Am I dealing with David, or Goliath?
Without this kind of consideration, the more common choices – those that our biases enable – remain at the surface. The giant’s weaknesses go undetected. The underdog’s victory remains a surprise.