I just came upon some short videos by Daniel Kahneman, the author of Thinking Fast and Slow. The book is daunting (over 450 pages) but the videos are not. The videos are a short introduction to some of his thinking.
Kahneman is a noted cognitive scientist. One of his main premises is that we have two kinds of thinking. Thinking slow, which we use to form considered judgments. And thinking fast, which we use to form initial impressions. Much of our thinking is fast, below the level of consciousness. It’s important for us lawyers to understand both kinds of thinking.
One of the videos deals with framing. The term framing can have different meanings, I think. For us lawyers, framing can mean how a legal question is posed. ‘
Cognitive scientists use the term a different way. George Lakoff, another cognitive scientist and linguist, defines frames as “structures of ideas we use to understand the world.” They are a way we organize and simplify what we see going on around us. According to Lakoff, these frames can be seen at the neuronal level. Each frame has a few elements: roles, relations between the roles, and scenarios carried out by those playing the roles.
Simple frames deal with the most basic things, like the act of picking up an object. Simple frames can be combined to create more complex ones. And frames can be combined further, to create narratives: stories with a protagonist, events (good and bad), and emotions that fit different scenarios.
Some examples may help explain all this.
- A simple frame is the act of picking up a baby. The person acting and the baby have roles. And the act of picking it up is the scenario.
- A more complex frame is the act of a nurse picking up a newborn in a hospital nursery.
- A narrative could be a young woman going into emergency labor on the street, being assisted by a passerby, being brought to the hospital, and then having a nurse pick up the baby and bring her to her mother.
Narratives can be about particular people, about particular kinds of people or about people in general. And they may follow certain patterns, such as the Quest, the Voyage and Return and Rebirth. Competing narratives can be used to explain the same situation.
One example Lakoff gives is the story of Anna Nicole Smith. She was a pop icon for some, and an object of scorn for others. Her story can be understood sympathetically as a rags-to-riches narrative. She was born poor and ended up inheriting great wealth from her husband through her own hard work, caring and determination. Or, it can be seen as the story of a conniving gold-digger. A heartless seductress who took advantage of a vulnerable old man.
George Lakoff applies frames and narratives to moral and political decision-making. . One example is the rhetoric over the Iraq war. Bush started with a self-defense argument and narrative. We as a nation were threatened by Iraq’s weapons of mass destruction (WMDs) and were justified in defending ourselves as part of the “war on terror.” When no WMDs were found, the argument and narrative shifted. We weren’t defending ourselves; we were rescuing the people of Iraq. Saddam Hussein was the Villain, spying, torturing and killing his own citizens. The Iraqi people were the Victims. We were the Heroes, freeing the Iraqis from Saddam and bringing them democracy.
Lakoff proposes bringing conceptual frames into political discussion. But they certainly also apply to legal decision-making. We are undoubtedly using frames in our legal decision-making without being aware of it.
So where does all this leave us? I don’t know. But I do know we need to understand the neuroscience of framing.
If we understand frames, we can detect when we are being influenced. And may be better able to influence others. Judges, jurors, negotiation partners, clients.