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Lessons From Behavioral Science: Decisionmaking, Willpower, and Fatigue

August 22, 2011

An evolving area of social psychology has begun to delineate the powerful effects of “ego depletion,” mental fatigue’s corrosion of the quality of our decision-making. Apparently, struggling through decision after decision doesn’t just make us less happy but also more suggestible and less judicious.

Of course, this directly impacts lawyers. One of (if not the) core functions of lawyers is to exercise our professional analytical judgment in advising clients. Yet, we tend to work long hours and are highly susceptible to the modern plagues of sleep-deprivation and insomnia. Which means that as you attempt to heroically power through your work, you may be risking sub-optimal (or even sub-par) performance. A simple solution that some self-aware professionals have arrived at is to simply avoid making crucial decisions later in the day. As an appellate lawyer (and as a blogger), I have consistently found that the best formula is to let any brief sit overnight and proofread it in the morning. There always plenty of improvements I can make with fresh eyes. If I am up against a tight deadline and don’t have that luxury, I will recruit a trusted colleague (if not my unit chief herself) to help me go over anything I’m drafting, no matter how routine the case. Likewise, at hearings I typically ask the judge for a few moments at the conclusion of a hearing to compose my thoughts and take a deep breath before making oral argument, even if the judge and opposing counsel seem to want to launch right into it.

On a related note, because we know that we have a finite reservoir of will power, we can make the most of what we have by using it carefully. In other words, exercise willpower for the things that matter most—whether it’s focusing on an important work assignment, sticking to a healthy diet or saying “um” and “uh” less. Interestingly, it also helps, apparently, if we believe in ourselves. A Stanford study last year found that subjects who believed they had more ability to focus and otherwise exert self-control actually did better  in those areas when the stakes were high. So, for the folks trying to “win the future,” it seems the golden formula is sufficient rest, judicious timing and allocation of decision-making energy, and simply believing in yourself. (There goes the power of confidence asserting itself again.) Sounds simple, but perhaps easier said than done!

It's tough being a tired, overworked young lawyer! (Photo courtesy of

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