The Science of Decision Making

BY Brendan Conley

The Science of Decision Making


Effective legal marketing depends on understanding how and why people make choices, but many common assumptions about this process are incorrect.

To build a powerful marketing strategy, learn the science of decision making.

Humans vs. Econs

Economists are fond of a mythical creature known as homo economicus, or “economic man.” John Stuart Mill described is as, “a being who desires to possess wealth, and who is capable of judging the comparative efficacy of means for obtaining that end.” Mathematical models of human behavior have been constructed based on the behavior of this ultra-logical version of homo sapiens. But rational, self-interested “econs” behave very differently from ordinary humans making real decisions.

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When faced with important choices affecting their interests, econs will conduct relevant research and engage in a cost-benefit analysis before choosing the option with the greatest probability of delivering the desired level of value. But econs exist only in theory, and while humans can make rational decisions, their choices are usually more complicated. Effective marketing needs to appeal to logical decision makers, but also to real people who are influenced by emotions, peer pressure, and cognitive biases.

System 1 and System 2

In his book “Thinking, Fast and Slow,” Daniel Kahneman summarizes his lifelong research into the science of decision making and behavioral economics, for which he won the Nobel Prize in economics in 2002. Kahneman’s work shows that humans use two different decision making processes, which he calls System 1 and System 2.

System 1 thinking is fast, emotional and automatic, while System 2 is slow, rational and deliberative. Human beings are capable of both, but System 1 thinking happens whether we like it or not, and System 2 thinking takes conscious effort. System 1 is operating when we have thoughts like “she looks like a trustworthy person” or when we have an immediate flash of annoyance at a pop-up ad. We employ System 2 when we weigh the pros and cons of a decision, or compare options according to a checklist of important factors.

Crucially, System 2 thinking is hard, so we do not do it as often as we should, even for major decisions. Kahneman describes a conversation he had with a financial executive who had decided to invest tens of millions of dollars in Ford Motor Company after visiting a trade show where he was impressed by the cars. When asked about his decision making process, the executive explained that his gut feeling told him that Ford made great cars. Kahneman notes that even this experienced professional had apparently given no consideration to the one question that matters, which is whether the stock is currently undervalued.

The investor did what everyone does sometimes, when faced with a difficult question: he answered an easy question instead. Kahneman refers to this as substitution. “If a satisfactory answer to a hard question is not found quickly, System 1 will find a related question that is easier and will answer it.” This can be an effective strategy for quick decision making, but it can also lead to significant errors. For certain major decisions, such as about legal and financial matters, there is no question that we would be better served by firing up System 2 and channeling our inner econ, but the simple fact is that we often fail to do so.

Visual Impressions

It is no secret that our attitudes about others are often influenced by what they look like, but the influence may not be what you would expect. And even when we think we are making rational, deliberative decisions, we may in fact be responding to visual impressions.

Alexander Todorov, a Princeton psychologist, conducted a study in which he showed participants photographs of two people and asked them one simple question: who looks more competent? The test subjects were not aware that they were looking at real candidates in previous campaigns for the U.S. House and Senate. Strikingly, participants’ snap judgments about who looked more competent predicted the actual winner between 66 and 73 percent of the time, even when they looked at the photographs for as little as one second. In a similar study, researchers showed candidates’ faces to children in a game asking them to choose a captain for a sea voyage. The children’s choices corresponded to the winner of the actual election 71 percent of the time.

Stephen Ceci, a Cornell psychology professor, conducted an experiment using the school’s system of student ratings. After taking a teaching skills workshop, Ceci decided to teach a course on developmental psychology which he had taught for 20 years, while changing his presentation to a more enthusiastic style of teaching, in which he gestured more and modulated his voice. He carefully ensured that the lecture content, textbook and student demographics stayed exactly the same. The result was that students who got the enthusiastic presentation gave much higher ratings, not only on the professor’s knowledge and how much the students learned, but on factors that clearly did not change, such as the quality of the textbook and teaching aids. In another study, researchers found that students could predict the ratings professors would receive at the end of the semester, just by viewing a silent video clip of their class that lasted for as little as ten seconds.

These studies illustrate compelling facts about human decision making. Our System 1 thinking makes automatic snap judgments based on visual information, and we are not always aware of the reasons for our own decisions. After all, the students would not have admitted – or even known – that they rated their textbook better because their professor gestured a lot. Additionally, System 1 thinking can be overruled by System 2, but it takes effort. In the experiment with politicians’ photos, when participants were asked to slow down and really think about their choices, their responses had less correspondence to the actual outcomes.


Substituting an easy question for a difficult one is just one of many heuristics – mental shortcuts – that we all employ on a daily basis. There is not enough time to research every decision thoroughly, so we use rules of thumb, educated guesses and gut feelings. Heuristics do not always give accurate results, but they give us something to go on and make decisions easier. Understanding common heuristics can help you design effective legal marketing materials.

Social proof is a widespread heuristic in which people look to others for clues about what choices they should make. Research has shown that people are strongly influenced by what other people say, even when it comes to objective observations. Subjects in an experiment were briefly shown a photo of an individual and then asked to pick the same person out of a lineup. When three other participants – who were actually working with the researchers – gave the same wrong answer, the subjects tended to override their own judgment and conform their answer to what the others said. Social proof has obvious applications in marketing: people use online reviews, website comments, and number of social media followers as a quick and easy indication of how competent and trustworthy an attorney or firm may be.

The availability heuristic is another psychological phenomenon that has clear implications for marketing. Simply put, an option that is easily recalled is judged to be more important. This principle underlies the strategy of brand saturation that is employed by so many advertisers. You cannot think about brands of laundry detergent without thinking about Tide, so if called upon to choose the best laundry detergent, you would make a list of options, and Tide would be on that list. Some law firms do aim for actual brand saturation in certain markets, but more often, prospective clients will not have a firm name in mind before they start searching. Taking advantage of the availability heuristic in this case simply means making sure that your firm appears in any list of options that the client creates. Increasingly, that list will be created automatically by an online search engine, with Google being the most prominent. Making your firm available in this situation means investing in effective search engine optimization methods to improve the quality of your website and move up in search engine results. Google is the biggest player, but some potential clients will use another search engine or perform their search on sites like Facebook, Yelp or Avvo. Your firm needs to make itself available for these searchers.

Marketing for Humans

We can apply the psychology of decision making to legal marketing by recognizing that people choosing an attorney or law firm go through complex thought processes. Importantly, while first impressions are strong and automatic, people can also employ heuristics, and sometimes make the effort to engage in deliberative decision making. Thus, marketing materials must be visually appealing, giving a positive first impression that conveys competence and care, and they must also be useful and informative, giving detailed answers to prospective clients who are taking the time to ask all the right questions.

In a competitive arena where an increasing number of potential clients are searching for an attorney online, your firm’s website must give the right initial impact. A modern, mobile-friendly website is indispensable. Your design team must consider practical matters such as ease of use as well as intangible factors like the emotional impact of photographs and the feeling that certain colors, fonts and other design choices convey. Always think in terms of what a user of your website will see at first glance, and what impression they will get from this glimpse of your firm.

Beyond the initial visual impression, your firm should have easily accessible content that satisfies users who are consciously or unconsciously making use of heuristics such as social proof. Some users will just glance at your firm’s star rating on Google’s reviews, while others will take the time to read through multiple reviews and testimonials. Some users will briefly glimpse at a few badges indicating memberships or certifications on your firm’s website, and get a subconscious impression of authority and competence. Others will take the time to investigate what these certifications mean, and compare which firms and attorneys have them.

Finally, some people looking for an attorney will actually slow down and use their System 2 thinking to try to make the best choice possible. Legal matters can and should trigger the “I need to stop and think about this” mode of decision making. For these users, a good-looking website with all the right signals will not be enough. Some prospective clients will be thinking deeply about their own legal situation and educating themselves about their options. However, the psychology of decision making still comes into play. Your firm makes itself available to these users by providing the most detailed answers online for a particular legal issue, by answering frequently asked questions, publishing long-form content, utilizing infographics and other similar content. The mental shortcut of “the firm that had the best answers to my questions would probably represent me well” can work to your advantage.

The perfectly rational decision maker exists only in textbooks. Human beings are complex thinkers, and effective marketing must consider their snap judgments as well as their considered choices.


Brendan Conley

Brendan Conley is a staff contributor to Bigger Law Firm Magazine and legal content developer for law firms throughout the United States.


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