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Bar News - August 13, 2010


Opinion: Loss Prevention: Taking the Cake

By:

Your rational brain can resist temptation. ("Donít put off that phone call.") Your emotional brain, not so much. ("Waitíll tomorrow.") Hereís how to give your rational brain the advantage.

A tired brain, preoccupied with its problems, is going to struggle to resist what it wants, even when what it wants isnít what we need.

- Jonah Lehrer1

Can I have another piece of chocolate cake
- Crowded House, "Chocolate Cake"

Imagine this: A group of people are gathered in a room to take part in an experiment. Everyone is given a slip of paper and instructed to take all the time they need to memorize the number on the slip, and, after they commit the number to memory, to walk down the hall to a second room where theyíll recite their numbers. What the participants donít know is that not everyone is memorizing the same number. Some have a two-digit number, and others have a seven-digit number.

As participants walk down the hall to the second room, holding their numbers in their heads, theyíre intercepted by a woman who offers each person a choice of snacks, as a thank-you for participating in the study. Participants can pick either a bowl of fruit salad, or a big slice of chocolate cake.

The result? The people with seven-digit numbers in their heads were almost twice as likely to choose the cake as the people with only two digits to memorize.

According to Professor Baba Shiv, who conducted this experiment at Stanford University, those five extra digits were a cognitive load on the brain that made it harder to resist the cake. The rational part of the brain was fully occupied with the seven-digit number, leaving the emotional part of the brain in the driversí seat.

And the emotional brain went straight for the delicious instant gratification of the cake - you can almost hear participantsí internal Homer Simpsons moaning, MmmmmÖÖcaaaaakeÖ. Test participants with two-digit numbers still had plenty of room left in the rational brain, and thus could make a disciplined, reasoned decision - Cake has lots of calories; fruit is good for me - Iíll have the fruit.2

If a seven-digit number is enough to max out the rational brain, just imagine the brainís response to a busy day in your law practice - filled with work to do, clients to meet, calls to return, e-mail pouring into your inbox, bills to pay, and things to remember, plus trying to remember where you put the list of things to remember.

Science writer Jonah Lehrer suggests that the cognitive overload of the office can, indeed, make it difficult for us to resist temptation:

[A]fter a long day at the office, weíre more likely to indulge in a pint of ice cream, or eat one too many slices of leftover pizza. (In fact, one study by researchers at the University of Michigan found that just walking down a crowded city street was enough to reduce measures of self-control, as all the stimuli stressed out the cortex.)3

And in the practice of law, there are temptations greater than pizza and ice cream. Perhaps few of us are really tempted to steal from clients or to falsify billing statements. But a decision to do so has to be coming from the emotional "want it now" brain. A rational brain would quickly dismiss the impulse to cheat clients: Itís stealing, and itís wrong to steal or, more cynically, Iím sure to get caught sometime, and it will be an embarrassing disaster for me if that happens. The emotional brain moans So. Much. Money.

More familiar to most lawyers are the little temptations we face every day. Your rational brain would tell you to return that phone call from Difficult Client right away. If you wait, Rational Brain would reason, heíll be even angrier. He might not pay the bill we just sent out. And if we donít win his case, heíll be that much more likely to make a malpractice claim.

But while Rational Brain is busy working on a complicated brief, answering e-mails and calls, and trying to remember if itís your turn to take your daughter to dance class, Emotional Brain takes over. I just donít want to deal with him today. Difficult Client will still be there in all his crabby glory tomorrow. Iíll call him then. Or maybe Monday. Or maybe Iíll wait until he calls again.

So it is hopeless? Should we just abandon ourselves to chocolate cake, double billing, and procrastination? The answer, not surprisingly, is "no." You can take steps to block out the siren song of Emotional Brain,4 and you can work on pumping up Rational Brain and your ability to resist temptation. And as a bonus, it may make you happier.

Unload the overload

If just walking down a busy city street can reduce your self-control, imagine what happens when you spend time in an office stuffed with papers, files, un-read periodicals, and piles of random stuff. Cleaning up some of the clutter will reduce some of the external stimuli that keep Rational Brain in the background while Emotional Brain has its way with you.

And it may make you happier, too. Gretchen Rubin, author of The Happiness Project, recently offered some "Happiness Tips for Lawyers" on the popular blog Above the Law.5

One of her tips is to take control of your physical environment: "A messy office seems like a minor hurdle to happiness, but people are surprisingly affected by their physical environments. Being surrounded by clutter drains you Ė not to mention the time you waste looking for stuff." If, like me, you use your vehicle as a mobile office, muck that out, too.

Now that youíve got your physical surroundings under control, how about exerting some control over other, more insidious stimuli? You can, if you wish, allow yourself to be bombarded with information all the time and everywhere, thanks to smartphones and other technological marvels.

But Ms. Rubin urges you to "control the cubicle in your pocket" and disconnect - every day, one day a weekend, whatever Ė so you can "do deep thinking and spend time with your family." At least, she suggests, you could "turn off sound alerts or vibration on your Black-Berry, so youíre not prompted constantly to check."

Drive yourself to distraction

People who are better at delaying gratification, says Mr. Lehrer, "donít necessarily have more restraint. Instead, they seem to be better at finding ways to get tempting thoughts out of their minds."

He cites a study in which four-year-old children are given a marshmallow, and told that if they can resist eating the marshmallow for 20 minutes, they will receive a second marshmallow. The children who succeed in delaying gratification are the ones "who sing songs, play with their shoelaces or pretend the marshmallow is a cloud." They "excel at controlling the spotlight of their attention," according to Mr. Lehrer.6

Exercise is an excellent distraction, and yes, itís good for you, but Ms. Rubin suggests that it may make you happier, too. "People who exercise are healthier, more energetic, think more clearly, sleep better, feel cheerier, and perform better at work." She recommends that lawyers try to exercise outside Ė even if itís just a short walk at lunchtime.

Your mental spotlight can shine on many things Ė an upcoming vacation with your nearest and dearest, a hobby that restores your soul, your plan to run a half marathon by the end of the year, your goal of training your dog Sadie not to steal food off the kitchen counter.

Itís not really fair to call these things "distractions" - they are the stuff of which life is made. And by keeping them in your sights, you may be better able to block out the siren song of Emotional Brain.

Flex your cortex

Like a muscle, Rational Brain can be strengthened through exercise. Lehrer posits that practicing mental discipline in just one area can improve our ability to exercise self-control in other areas.

Just as you wouldnít start an exercise program by strutting into the gym and lifting the heaviest weight you see, donít overload Rational Brain by trying to break all of your bad habits at once. Pick just one. If procrastination is your poison, you might resolve to return all phone calls (or have someone else return them) by the end of every day.

Practicing this discipline will strengthen your willpower. The next time you set out to resist an impulse or break a bad habit, it will be a little easier. In the mind, as in the gym, slow and steady really does win the race.

Attorney Karen Erger, former vice president and director of loss prevention with ISBA Mutual in Chicago, now works with Holmes, Murphy & Associates in Cedar Rapids, Iowa.

Reprinted with permission of the Illinois Bar Journal, Vol. 98 #6, June 2010.

Copyright by the Illinois State Bar Association.


1. Jonah Lehrer, Blame it on the Brain, Wall St Journal (December 26, 2009) available at http://online.wsj.com/article/SB10001424052748703478704574612052322122442.html (Lehrer). Mr. Lehrerís blog, The Frontal Cortex (http://scienceblogs.com/cortex/) and his book, How We Decide (Houghton 2009), are full of fun and illuminating insights about the work of the brain.

2. Id, and Morning Edition: Willpower and the "Slacker" Brain (NPR radio broadcast, January 26, 2010) (transcript at http://www.npr.org/templates/transcript/transcript.php?storyId=122781981).

3. Lehrer (cited in note 1).

4. Although itís desirable to resist some impulses of the emotional brain, it would be wrong to assume that the emotional brain is "bad" or simply an impediment to clear thinking. Mr. Lehrerís book, How We Decide, makes a strong case that both parts of the brain play desirable roles in the decision making process.

5. See http://abovethelaw.com/2010/04/happiness-tips-for-lawyers/.

6. Lehrer (cited in note 1).

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