Michael Sean Quinn, Ph.D, J.D., Etc., Author

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(Resumes: www.michaelseanquinn.com)
 Douglas O. Linder and Nancy Levit.
 THE GOOD LAWYER: Seeking Quality in the Practice of Law. Oxford
University Press, 2014, with an enormous bibliography to be found in the
footnotes. My exposition, commentary and critique is presented in several
parts. This one is on background and foundations. 

(On May 7, 2015 a number of purely form changes were made to this entry upon being noticed for the first time, e.g., paragraphs printed twice; plus there was a change of address.)


                                 Reasoning: Fast and Slow

Part I should be read first. It pertained to foundations, topics, most
important sources. Other parts with concern other specific matters and they
will be organized by questions about, commentaries on,  and therefore
arguments with different chapters. Part II of the Blog, already published, is about Chapter
One of the book, and that chapter was about the good lawyer, empathy and the
good lawyers’ being empathetic. Part III of the Blog, is about Chapter Two of the book, and it is about
courage, being courageous and being a  good lawyer.
 Part IV
is about their Chapter III, and it is about good lawyers needing “ample
willpower,” presumable to get to lawyerly goodness and then stay there.

Part V here is about their Chapter V, and it is
about forms of reasoning. (I am jumping their Chapter IV, for now, because
willpower and forms of reasoning go together. They are both desirable internal
characteristics in persons making external relation virtues possible or
improved.)The title of Chapter V is “The Good Lawyer Uses Both Intuition and
Deliberative Thinking.”






“REASONING:  FAST AND SLOW”

The thesis of the authors is quite
simple; here is my rendition of it. 
Intuition is a central part of quality thinking because it provides
reliable recognition of patterns, and that is central to lawyerly, if not all
practical, advanced thinking.  (Imagine
trying to build a complex building without it.)


Intuition is
sometimes not there at all (as in, “I don’t have an intuitive feel for this
kind of situation.” Or, sometimes it is to be 
disdained or never considered,
such as Sophia’s intuitions on the
X topic being unreliable since
biased, though she doesn’t know it, (as in, “That fellow is Turkish not Greek,
so you can ever trust a word he says.”


The sketch of the
authors in this chapter is to about how these two epistemological activities
should be interconnected. Everyone deploys them both.  What is important is to get them working
together in the right sort of way. And this is a very important point for good
lawyers—and even great lawyers. I believe these propositions whole-heartedly. I
wonder about a variety of things, however.


Is it obvious how one
gets them to work together pretty much all the time? Is there a formula, or
protocol, for performance? Is there a way to learn now to do this?



The authors say that intuition
precede reasoning–what they call “deliberative thinking”– and for the most part, play a larger role in our decision-making, both in our lives and our professional careers.” Is it really true that
reasoning plays a larger role in our daily life activities and decision-making,
is that intuition? 


The authors distinguish
intuition from “flash belief,”“instant insight,” “immediate grasp” and “quick knowledge
from the gut.” They call intuition “pattern recognition.” Sometimes that’s what
it is, sometimes not.  If it is always
pattern recognition, then it is a form of reasoning, since it proceeds from a
generalization of which one is not conscious, i.e., a pattern, evidence for
that generalization, of which the thinker is not conscious, and then its
application, of which the thinker is not conscious. Recognitions do not come
without reasoning, as in “This is like that.” If thinks as the authors understand them, is intuition a form of
reasoning?


If that’s true, isn’t
it the case that we have one form of reasoning testing another form of reasoning
(or thinking). This idea is recognized by the recent well-known psychologist
that famously has distinguished fast and slow thinking, is it not? But
intuitions are not or need not be this sort of process.  They may be thought of as being “flash
beliefs,” not “instant insight” since that entails instant knowledge but mere
“instant belief,” sometimes true, sometimes not; sometimes rational, sometimes
not. Of course, the same analysis applies to “instant grasp” and “quick
knowledge from the gut.” Neither of these is a form of knowledge but simply
belief.


Is intuition recognition
of patterns always taken to be true? Isn’t that part of the meaning of “recognition.”
Surely one does not recognize one’s mother if he picks out her twin aunt as
she? Thus, 
isn’t intuition a hypothesis, or, shouldn’t it be understood as a hypothesis, even if the person who has the intuition does not realize its
nature or epistemic status? And if that is what it is—a hypothesis—might it be
the case that the rest of the reason should try to reject it and accept it only
it survived attempted refutation? Is studying Sir Karl Popper a good idea?


The authors say that
“[o]ur fast-thinking lets us down because it neglects ambiguity, has a bias
toward confirmation rather than skepticism, causes us to plunge ahead without
considering options, assuming it has enough information for a decision when in
fact it doesn’t, invents when none exist, frames problems too narrowly to
supply good answers, is generally terrible at weighing probabilities and making
calculations, and leads us to make very bad predictions about the future. Apart
from that, the system works great. The list of cognitive traps that our
automatic thinking system can cause of to fall into is too long for us to
consider them all. . . .”


“Other that th[ese]
the system works fine.” Really?  Maybe
the authors have formulated a sophisticated joke, and I’ve just missed it.


In any case, doesn’t
the correct substantial point—as opposed to methodological point about what
works well—prove that (1) intuition is always subject to skepticism, (2) that
intuition is a form of reasoning, and (3) it is subject–subordinate–to the
rigors of reason?


“Knowing when
[knowable] mistakes are most likely to be made—knowing when we are about to
fall into a cognitive trap—is one of the things that separates that separates
the good lawyer from the bad lawyer.”  So all propositions relative to lawyering if
though to be known by intuition are subject to rejection by the “Rule of
Reason? If a lawyer is to be a good lawyer, s/he must learn how to recognize
relevant epistemological mistakes, true? And the good lawyer knows that this
must be done in any attorney-client situation that is not trivial? (My
emphasis.)


 Should it be noted that there are only two
kinds of lawyer qualities: good and bad. 
Might there not be middle in there? The average lawyer? The ok lawyer if
he sticks to the simple? The lawyer with a grade of C, when compared to other lawyers?
But if there are just ok lawyer, thus which are neither good nor bad, and that
category is not being discussed here, isn’t the good lawyer the high quality
lawyer and the properties discussed in this book maybe not simply for judging
non-bad lawyers but the provision of concepts and steps for becoming an
excellent lawyer, though not a great one? Fine with me; I like the idea!


One last point, in the end, how intuition and reasoning are understood conceptually does not matter, except maybe for law school teaching purposes. Surely all good lawyers should be able to  use both and often in the same project.   In addition, all good lawyers should be to some degree skeptical of both of them, just as that lawyer is skeptical for a variety of reasons, i.e., thoughts, about reports regarding facts.  At the same time, one wonders whether the good lawyer should be more skeptical regarding “fast thinking” than “slow thinking.”  The general consensus is that he should be. Of course, this would make some lawyers irrational: contemplative Buddhist lawyers like that, and what about lawyers who depend heavily on stories as a form of persuasion.  After all grasping and embracing stories requires a form of intuition.


A POST SCRIPT: 

David Brook wrote a column in NYT on 8/28/14 entitled “The Mental Virtues.” He listed the following: 
  • love of learning, 
  • courage,
  • firmness,
  • humility,
  • autonomy, &
  • generosity.                                                                                                                                                                                                                                                                                             Brooks says he got these from the 2007 book by two professors, Robert C. Roberts (Baylor University) and W. Jay Wood (Wheaton College) entitled INTELLECTUAL VIRTUES.  

Michael Sean Quinn, PhD, JD, CPCU, Etc

Michael Sean Quinn, PhD, JD, CPCU, Etc. (530)

One of Texas's leading insurance scholars, Michael Sean Quinn is a past chair of the Insurance Section of the State Bar of Texas and has a broad legal practice.

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