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The Depths of Dialogue: Ethics and Behavioral Economics in Collaborative Lawyering

This book explores the ethical and behavioral aspects of collaborative lawyering through the lenses of ethics, interests, and behavioral economics. It delves into the social justice model of legal professionalism, the denial of access to justice, and the interactive relationship between lawyers and citizens. By examining normative and psychological obstacles to decision-making, it sheds light on how lawyers can influence outcomes unknowingly. The text introduces readers to behavioral economics, explores decision-making processes, and discusses strategies for improving client interactions. With reflective exercises and insights on reshaping justice in a changing legal landscape, this book offers a comprehensive guide for legal professionals seeking to enhance their practice.

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The Depths of Dialogue: Ethics and Behavioral Economics in Collaborative Lawyering

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  1. Insert title here The Depths of Dialogue: Ethics, Interests and the Behavioural Economics of ‘Collaborative’ Lawyering Philip Drake & Stuart Toddington

  2. Our Jurisprudential & Philosophical Foundations A social justice model of legal professionalism. A non-linear ethical dimension to legal skills Habermas’ communicative ethics The denial of access to justice and constitutional rights. Refashioning the relationship between lawyer and the citizen. Dialogical and collaborative interaction. Behavioural economics.

  3. Normative and psychological obstacles to client decision making • Introduction to Behavioural Economics. • Exercise: • “A bat and ball cost £1.10 in total. The bat costs £1 more than the ball. How much does the ball cost?” • System 1 thinking • Quick, intuitive, requires little mental effort and is often based on affect i.e. how options make people feel • System 2 thinking • Analytical, deliberative and requires a good deal of mental effort to implement. (Maule 2013)

  4. Framing Exercise When thinking in terms of losses, more likely to take risky actions. When thinking in terms of gains, more likely to be risk averse. As lawyers we can influence a decision without even realising this! (Maule 2013)

  5. Motivated Reasoning • Motives and processing information in biased ways. • Attempt to rationally justify the irrational. • Adverse consequences: • Short term desire for punishment; and • Ignoring longer term consequences. • Unrealistic positive views & over optimism.

  6. Simulation heuristic Using a mental simulation to predict likely outcomes. Biased in favour of positive outcomes. Unrealistic optimism and over confidence Reflective Practice?

  7. Endowment Effect Exercise Loss aversion. Once something is owned, it is valued higher.

  8. Incidental Emotions • Emotions based on appraisal mechanism, assessing progress against achieving key goals. • Six key dimensions: • Certainty; pleasantness; attentional activity; Control; anticipated effort; and responsibility. • Anger is associated with belief that one can influence situation and cope with it. • Sadness is associated with a feeling of low personal control over events.

  9. Decision Strategies First option, rather than the best option(s)? Structures to identify and determine options Wise counsel.

  10. “The type of reform needed that will uphold the rule of law by enabling justice to be delivered fairly and impartially in the fundamentally changed financial circumstances requires fundamental re-thinking of our processes and procedures”. “... serious consideration should be given to introducing a more inquisitorial form of processing civil proceedings where both or at least one party is unrepresented” The Lord Chief Justice of England and Wales, the Right Hon The Lord Thomas of Cwmgiedd. Reshaping Justice. 3 March 2014. Delivered to the organisation “Justice”.

  11. The Future? • For the profession • Fixed fees? • Wise Counsel v Hired Gun? • For legal education • Apprenticeships • LETR • Do we need to reconsider how we deliver legal education: • Autonomy? • Real life practice or simulation? • Learn lessons from medicine, social work and other areas? • Training v Facilitated learning

  12. What we have been doing... Developing autonomous learners. Taking responsibility for own learning Ethical outlook, with professionalism and legal values. Reflection Understanding law’s role in society and the importance of access to justice. Holistic Approach to the law

  13. What next... CPD for Sols? Can the solicitors learn from the students?

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