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Lawyer Thinking, Revisited

Lawyer thinking vs. scientist thinking in apologeticsHey—what’s the difference between a jellyfish and a lawyer? One is a spineless, venomous blob, and the other is a marine animal!

Hey—how does a lawyer sleep? First he lies on one side, then he lies on the other!

Hey—whaddya call ten lawyers buried to their necks in concrete? A good start!

No, this isn’t a rant against lawyers, despite my recent discussion of lawyer thinking. I understand their important role in society. I even understand what it’s like to be in a minority that some in society find repulsive—I’m an atheist, remember?

J. Warner Wallace at the Please Convince Me podcast responded to my recent “Scientist Thinking vs. Lawyer Thinking” post. He is a homicide detective who applies his investigative thinking to Christian apologetics.

Wallace raises some interesting points. I’d like to respond to those and put to rest his fears that this is an attack on lawyers.

Wallace began by emphasizing that prosecutors weigh the evidence provided by the police. They don’t want to lose and only pursue strong cases that they are likely to win.

I understand. This isn’t the lawyer thinking I’m talking about. I’m only talking about the model used in the courtroom where the actions of lawyers are constrained. Collaboration and openness aren’t an option in the courtroom, unlike a scientific setting.

The prosecution and defense attorneys make the best argument for their side, regardless of their personal opinion of the evidence. A defense attorney might think that their client is actually guilty as charged, for example, but that information doesn’t come out in the courtroom. That attorney wouldn’t be doing their job if it did.

Wallace attacks the idea that science is the only way to find the truth, especially for past events. He points out that both the events in a crime and the gospel story are past events.

Agreed. History isn’t science. But a criminal investigation and history both use what I’ve defined as scientist thinking—a collaborative and open search for the truth. Lawyer thinking—presupposing one side of an issue and picking and choosing facts to support it—is unhealthy in either science or history. And this thinking must be especially unhelpful in a police officer.

Wallace emphasized four points.

1. “The nature of the courtroom vets the claims far more aggressively than any other environment.” The many discarded consensuses from the peer-reviewed scientific process show the flaws in the scientific method. The courtroom’s adversarial process is better.

You want adversarial? The scientific process is not for the faint of heart, as Creationists will tell you. Scientific careers are made by finding something new, and that means subjecting one’s findings to attack by others. Claims aren’t taken on faith, and scientists replicate each other’s experiments to validate or overturn the results (remember cold fusion?).

The review process is never over, and the better established the scientific claim, the bigger the acclaim for the scientist who overturns it. That’s why the claim by some Creationists that evolution is bankrupt and biologists know it is ridiculous. The biologist who overturns this consensus can count on a Nobel Prize and its $1.1 million prize money.

Science is also a meritocracy, with a high barrier to entry. No participant is flawless, but each is highly trained. There’s no equivalent of lay jurors within science.

Surely Wallace isn’t suggesting that we replace scientist thinking by lawyer thinking in the laboratory. The problem isn’t that lawyer thinking needs to be applied more widely but that it is already too easy for us to fall back on. It serves us well in the courtroom but would be no asset to science.

2. “Historical events by their very nature are unrepeatable.” Science isn’t the tool to use.

True, but scientist thinking is what historians use, not lawyer thinking. The only value in lawyer thinking is as a hideous example of what not to do.

To illustrate how scientist thinking is supposed to work, Richard Dawkins gave this anecdote in The God Delusion.

I have previously told the story of a respected elder statesman of the Zoology Department at Oxford when I was an undergraduate. For years he had passionately believed, and taught, that the Golgi Apparatus (a microscopic feature of the interior of cells) was not real: an artifact, an illusion.

Every Monday afternoon it was the custom for the whole department to listen to a research talk by a visiting lecturer. One Monday, the visitor was an American cell biologist who presented completely convincing evidence that the Golgi Apparatus was real. At the end of the lecture, the old man strode to the front of the hall, shook the American by the hand and said—with passion—“My dear fellow, I wish to thank you. I have been wrong these fifteen years.” We clapped our hands red.

No fundamentalist would ever say that. In practice, not all scientists would. But all scientists pay lip service to it as an ideal—unlike, say, politicians who would probably condemn it as flip-flopping. The memory of the incident I have described still brings a lump to my throat.

Wow—talk about a teachable moment.

3. “Science isn’t absent from the courtroom.” Forensic science is presented as evidence when appropriate. Science isn’t rejected or demeaned.

Understood. And lawyer thinking is still best left in the courtroom.

4. “Lawyers don’t make the final decision in a courtroom.” The jury or judge are the final arbiters, not the lawyers.

Similarly, a scientist doesn’t create a consensus solo; the scientific community evaluates that scientist’s claims.

One important difference is that there is no equivalent within science to letting someone off on a legal technicality (not reading the accused his Miranda rights, for example). Having a formal process is important and useful in the legal system, but science gets as many second chances as needed to get it right.

Wallace concludes:

[The courtroom model has] been established for a reason. It’s still the single best method of determining what happened in the past. It’s time-tested, it’s vetted, it has an elaborate set of regulations and precautionary rules that attempt to limit error to begin with, and then they provide for appeal when error occurs.

The courtroom process is fine, as are lawyers and lawyer thinking. What’s not fine is lawyer thinking misapplied, and lawyer thinking within the discipline of history would be an example.

Lawyer thinking does not follow the evidence where it leads; it begins the conversation with a bias to one answer and presents only information that confirms that presupposition. It’s natural and often feels right, but, outside the courtroom, it is not the best way to find the truth.

Make instead an egoless and collaborative search for the truth by following the facts where they lead.

Faith is no virtue.
Demanding evidence is no vice.
— Unknown

Photo credit: Wikimedia

About Bob Seidensticker
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  • Greg G.

    My verdict is that this is an excellent article.

    • Bob Seidensticker

      :)

  • Richard S. Russell

    There are a couple of other differences with a courtroom setting:

    (1) It’s close-ended. It takes place over a limited period of time, and then it’s done, one way or the other. Conclusions of innocence CANNOT be reviewed (due to the Constitution’s prohibition on double jeopardy) and conclusions of guilt very seldom are, in practice. (Appeals courts exist to address disputes over the law, not over the facts.) OTOH, there is no expiration date on a scientific finding. In fact, it’s misleading to even call them “conclusions”. They’re all subject to revision as new evidence comes rolling in.

    (2) It’s purposely designed to be unambiguous. Your choices are “guilty” or “innocent”.* There’s no “can’t say for sure”. (In theory, if a jury really CAN’T say for sure, it’s supposed to go with “innocent”.**) Science, OTOH, has no problem with “dunno”. It’s often the best answer, but the law won’t even recognize it.

    ––––
    *except in Scotland, where they also have an option of “not proved”.
    **riiiiigghht

    • Bob Seidensticker

      Richard:

      It’s close-ended. It takes place over a limited period of time, and then it’s done, one way or the other.

      The lawyer will reply to you that there is an appeals process, so a judgment isn’t fixed. Still, the deliberately formal structure of the courtroom is quite different from how science works.

      (Reminds me of the guy in an interview who was asked, “Tell me about a time when you broke the rules.” The guy replies: “There are rules?!”)

      (due to the Constitution’s prohibition on double jeopardy)

      I had to look it up. You’re right–fifth amendment.

  • machintelligence

    First

    Wallace began by emphasizing that prosecutors weigh the evidence provided by the police. They don’t want to lose and only pursue strong cases that they are likely to win.

    Nonsense. Some prosecutors will take any case to trial where the defendant doesn’t make a guilty plea. They don’t care if they have dismal conviction statistics, they get paid either way. Politics are also a factor (well, we need to charge somebody.)
    As you point out, lawyers are advocates (especially in civil trials) and out to win the best settlement possible for their clients. They are all too willing to appeal to emotion and use all manner of fallacious arguments to sway the jury. Even prosecutors have been known to conceal evidence to win their case.
    I have been a scientist, and served on five juries: give me a scientific search for truth any time.
    And finally a lawyer joke: What is the difference between a lawyer and a rooster?

    A rooster gets up every morning and clucks defiance.

  • Kodie

    Lawyers don’t stop partway through the trial and say, “I think you may have something here” to the opposing side. They might do something like that, I think the technical term is “sweating”, and try to come up with a strategy to discredit this new amazingly convincing argument.

    Prior to the trial, regardless of what the client/accusee may have done, it may be better to settle. That is, a lawyer will admit their client has done something wrong which may not be the same crime they have actually committed. So the penalty goes with the compromise, not for the actual crime unless convicted in court. What is this guy Wallace saying makes this a rigorous way to settle the truth about anything?

    • Bob Seidensticker

      I see the value of lawyer thinking, but only in the courtroom. I can’t imagine anywhere outside of a courtroom type of environment where it would be the preferred approach.

      Indeed, even in the jury room, they don’t use it! (Or they had better not.)

  • Greg

    I have always been one to defend lawyers because I believe they use a part of critical thinking that is very powerful: defining your terms. I also tend to defend them because I know many work very hard to defend minority rights, defend free speech rights, and defend the disadvantaged. I think both processes are complex, or at least should be, but it is hard to disagree that lawyer thinking is best left for the court room.

  • smrnda

    I agree with R. Russell that court cases have to be tried within a particular time frame. There are scientific claims that have been being evaluated for centuries, with the evidence for them getting stronger and stronger all the time. We have a better case for evolution now than Darwin had.

    Crimes or historical events can only really be feasibly investigated within a short time frame. Nobody caught Jack the Ripper and a great deal of forensic evidence and people important to the case are now dead. I’m sure someone has some ideas of who might have done it, but we can’t really test them.

    I’m very happy you mentioned the Dawkins quote where he praises the ability or desire of scientists to stay open to changing their minds based on new evidence, which is apparently seen as negative in so many other areas. I actually don’t see why we condemn politicians for ‘flip-flopping’ : a person’s take on public policy will change if they get new or better information, and when I run across a politician who has stayed with the same views their whole life, I get the impression of a person who made up their mind while young and has no interest in exploring where facts may lead.

    • Richard S. Russell

      I concur with your take on politicians and regret that “flip-flopping” has become such a term of opprobrium. Considering it to be a political negative keeps many politicians from original thinking or re-evaluating their positions. I wish there were some kind of evaluative spectrum for such things, so we had separate words like “tiny”, “extra small”, “small”, “medium”, “large”, “extra large”, “jumbo”, etc. to describe degrees of mind-changing. Then we’d have Barack Obama’s re-evaluation of gay marriage at one end of the spectrum and Mitt Romney’s virtuoso mind-changing performance — where he’d adopt every imaginable position on every conceivable issue, often within days of each other, sometimes between the beginning and end of the same sentence — at the other. I suppose it’s probably apparent that I think the former represents progress, while the latter is merely crass opportunism from an unprincipled serial panderer.

      On the bright side, now that the bar on flip-flopping has been set to Olympian standards, perhaps we’ll adopt a more lenient attitude toward politicians changing their minds: “Well, sure, he hasn’t been entirely consistent on this, but what did you expect? Lester Maddox? At least he isn’t Mitt Romney!”

      • smrnda

        True, and the opposite extreme is Ron Paul, who made up his mind probably at about the age of 10 or 11 (or as soon as he’d read Ayn Rand and found out who von Mises was) and hasn’t examined any other viewpoint since; he seems to have a perspective that clearly defines what is a Problem (problem = federal government) which prevents him from even looking at other perspectives on issues since it would require him to recognize other types of problems that can’t be addressed through his ideology. (My usual take is that he looks at something like say, pervasive racial discrimination in hiring or sexual harassment, and since to him, the only problem is making sure private property rights are never limited or regulated, he doesn’t seem them as problems. I think climate change denial is a part of this – if government regulations of business are bad, one must deny that deregulated capitalism can produce negative consequences, or you argue that lots of poverty, people with no health care etc. aren’t problems.)

        But changing your mind, like Obama on gay marriage, is at least a good thing; I tend to think he’s simply become more comfortable with it as it’s become less of a political liability, and it’s become more obvious to him that supporting it isn’t costing him any support – the people who oppose gay marriage wouldn’t be on his side anyway.I still don’t think it’s opportunistic on his part, more that he’s speaking up when it’s more necessary, and when he knows it will do more good.

        The problem is the media (and other politicians) refuse to distinguish between an intelligent change of mind and just saying one thing and then the opposite on the same day without any thought beyond ‘what will get me applause right now?’ But our media isn’t quite as thoughtful or capable of nuanced analysis at times.

        • avalon

          “Wallace began by emphasizing that prosecutors weigh the evidence provided by the police.”

          Does he mean scientific evidence like DNA, fibers, etc…?

          “Wallace attacks the idea that science is the only way to find the truth, especially for past events. ”

          Christianity ultimately rests on intuition and revelation, two methods soundly rejected in the courtroom.

          ““Historical events by their very nature are unrepeatable. Science isn’t the tool to use.”
          (versus)
          “Science isn’t absent from the courtroom. Forensic science is presented as evidence when appropriate. Science isn’t rejected or demeaned. ”

          Two contradictory statements. Science is used in the courtroom to find out what happened, but science isn’t the tool to use to find out what happened??!

          avalon

        • Bob Seidensticker

          That is indeed a contradiction. I’m not sure what Wallace would say.

          The quotes are his, but I might’ve gotten some of the subtleties wrong, so the contradiction might only be in my version of his events.

          I’ve emailed Wallace to let him know about my rebuttal to his rebuttal. If I hear that he’s responded, I’ll let you know.

  • Ryan

    From Wallace: “[The courtroom model has] been established for a reason. It’s still the single best method of determining what happened in the past. It’s time-tested, it’s vetted, it has an elaborate set of regulations and precautionary rules that attempt to limit error to begin with, and then they provide for appeal when error occurs.”

    There is incredible naivete on display in this comment, and it really sounds like the kind of thing one would expect out of Scalia, not someone actually interested in finding the truth (and yes, those two are clearly mutually-exclusive). The courtroom exists to solve a societal problem of resolving disputes (whether civil or criminal) with a (theoretically) objective third party and arbitrate the matter; it does not exist to determine reality, including history. As another commenter pointed out, the regulatory and precautionary rules (including appeal) are about either procedural or legal questions, but not about the facts themselves.

    Of course, saying that it has “rules that attempt to limit error to begin with” doesn’t mean much when you consider how many forms of bias are in play; clearly non-neutral main parties, a never genuinely impartial arbiter, and in the case of criminal issues a rather perverse incentive structure that affects both the prosecution and the police against the actual interests of justice. To argue otherwise is to be ignorant or to lie about the fundamental nature of what a courtroom does, as opposed to what it allegedly aspires to do; as one friend put it, “We have a *legal* system, not a *justice* system.”

  • Reginald Selkirk

    “Historical events by their very nature are unrepeatable. Science isn’t the tool to use.”

    Here’s an interesting recent application of scientific evidence-gathering being applied to history:Napoleon Wasn’t Defeated by the RussiansNew evidence that Napolean’s army may have been stopped primarily by typhus.

    • Bob Seidensticker

      Apologists like to demand, “Are you saying that science is the only valid way to find the truth?” I guess they want to cast the net as far as possible to possible bring in religion and faith.

      Is there a mode of thinking that’s common to science and history? I realize that beakers and oscilloscopes are rarely useful for history, but the thought process seems very similar between the two fields.

      • Richard S. Russell

        One essential similarity is the willingness to shrug and say “Don’t know. Can’t tell. Evidence is obscure or inadequate. We may never know.”

        Religionists, tho, are so terribly terribly insecure that they can’t live with that. They flock to anyone who claims to have the answers, even if they made them up, as long as they say so with adequate assurance and confidence.

        In a way, this is a tribute to our genetic heritage. Our one great advantage over the other animals is these big honkin’ brains of ours, and the language skills they permit, which allow us not only to understand the world around us but to pass that knowledge on to the next generation, so they don’t have to discover it all over again for themselves. This quest for knowledge is, in general, an admirable thing, but the ability to satisfy it with bullshit, propaganda, and mindless superstition is one of its downsides.

        • Bob Seidensticker

          On that big brain: Christians like to point out the ways we’re better than other mammals–compassion, courage, empathy, love, and so on are found to a greater degree in humans than other animals. But of course the flip side is revenge, rage, hatred, and so on that comes along for the ride.

          Evolution explains it nicely (some species has to be the smartest). A loving god … not so much.

  • Reginald Selkirk

    Wallace began by emphasizing that prosecutors weigh the evidence provided by the police. They don’t want to lose and only pursue strong cases that they are likely to win.

    The prosecution and defense attorneys make the best argument for their side, regardless of their personal opinion of the evidence.

    The responsibilities for the prosecutor and defence attorney are asymmetrical. A prosecutor is supposed to pursue justice, not conviction. There are rules requiring a prosecutor to turn exculpatory evidence over to the defence, for example. This is the ideal. However, it needs to be pointed out that prosecutorial misconduct is far from rare.
    .
    There are rules in the legal system which inhibit investigation. Evidence may be excluded if it is illegally collected, for example. And once a suspect has been tried for a crime, the double jeopardy rules prevent him from being tried again. That scientific positions may change over long periods of time as new evidence is uncovered is a strength of science, not a limitation.

    • Bob Seidensticker

      Double jeopardy is an excellent non-parallel that I should’ve raised. Thanks.

      • Reginald Selkirk

        OJ is certainly thankful for that one.

  • Zebra Rudd

    The purposes of lawyer-mediated disputes are to resolve, in a human timeframe, social disputes, in a manner that is acceptable to the majority of society. Because these disputes are social, many (and perhaps most) involve some fact-finding about subjective reality (intent, state-of-mind, …) as well as objective reality.

    Science seeks to describe objective reality. To some extent, neuroscience is starting to unlock the secrets of intent and belief, and someday those things, too, may be objective reality rather than the domain of subjective judgement — but not today, not now, and not here.

    Science excels at finding objective truths, eventually.

    Lawyering excels at resolving social disputes, much more quickly.

    Two different goals. Confusing these goals and confusing the methods is … absurd.

  • http://rgrydns2.blogspot.ca Richard Greydanus
    • Bob Seidensticker

      Richard:

      The idea that any human endeavor could be entirely open-minded–’an egoless and collaborative search for the truth by following the facts where they lead’–is utopian and has very little to do with actual scientific study

      Very little? It’s like I was describing something else entirely?

      Collaboration and consensus have nice rings to them; but they are ideals, things we aim at and hope for, never realized in actuality.

      Huh? We never achieve consensus and collaboration? All that study really has given you insight that I can only wish for.

      As I understand things, science in practice does this all the time. If your point is that there are imperfections, as in any human institution, you’re obviously correct.

      This is a very simple truism, and Bob seems to have missed its importance.

      Apparently so. How this distinction (human-created vs. natural) means that historians have no use for collaboration and are supposed to pick an opinion and doggedly stick to it regardless of any evidence provided by peers is lost on me.

      You do know what we’re talking about, right?

      In fact, the antagonism of a courtroom is highly consensual and collaborative.

      If you’re saying the entire courtroom process is designed to find the truth, yeah, obviously. But a particular lawyer, using what I’ve defined as “lawyer thinking” does not collaborate with his rival at the other table.

      The insults I got; insights … not so much. There was much to agree with in your article, which makes me think we’re talking about different things.

  • Richard S. Russell

    Couldn’t have said it better myself.

    (Unlike so many occasions, this is an appropriate place to throw in the word literally.)

  • Reginald Selkirk

    Check out this blog post:
    Quote of the day for Wednesday: Kaufmann on theology
    featuring a quote from Walter Kaufmann:

    Indeed, [theologians] resemble lawyers in two ways…

    • Bob Seidensticker

      Helpful insights.

  • Joe

    Some criminal defense attorneys who are assigned to defend someone they feel (or even know) is guilty would tell you that they are defending the Constitution’s guarantee of due process and counsel. I admire how some conduct themselves. Now the Johnny Cochrans of the world who engage in straw man arguments and ad hominem attacks are more the way Creationists debate.

    • Bob Seidensticker

      Joe:

      Some criminal defense attorneys who are assigned to defend someone they feel (or even know) is guilty would tell you that they are defending the Constitution’s guarantee of due process and counsel.

      I have no problem with lawyers and the courtroom process. But it is not as good as scientist thinking outside the courtroom. It certainly gets in the way when trying to uncovering the truth in science and history.


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