The one skill to rule them all

No lawyer will ever be effective in their role without one particular ability

“Communication is only 7% verbal and 93% non-verbal.”1

“Aerodynamically, the bumble bee shouldn’t be able to fly, but the bumble bee doesn’t know it so it goes on flying anyway.”2

“When confronted by a threat, an ostrich puts its head in the sand because it thinks the rest of it cannot still be seen.”3

These are some of the most well-used amazing facts, beloved of bloggers everywhere.

Inspirational? Perhaps.

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Uplifting? Possibly.

Complete bollocks? You bet.

It is of course no surprise that there are falsehoods on the internet, but it is somewhat surprising that people believe them, especially since none of the above furphies stand up to the slightest critical analysis (not that this stops motivational speakers and leadership experts everywhere from citing them ad nauseum).

Sometimes such claims are said to be based on studies or research, especially the claim that 93% of communication is non-verbal. Speakers who make that claim – verbally, I might add – often cite a study by a Professor Albert Mehrabian, despite the fact that the good professor’s study says nothing of the sort.

Professor Mehrabian’s conclusion was that for inconsistent or contradictory communications, body language and tonality may be more accurate indicators of meaning and emotions than the words themselves.4 However, he never intended the results to apply to normal conversation and has in the past expressed frustration at the misinterpreting of his work. Of course, the claim that 93% of communication is non-verbal is easily debunked by putting it to the test: try telling someone your name without using verbal language.

The bumblebee claim seems simply to be implying that it is through persistence and hard work that the bumblebee can fly – in other words, if you try hard enough you can violate the laws of physics. I guarantee that if you jump off something and flap your arms with all your might, you won’t go anywhere but down (if you intend to test this one, I advise jumping off something short).

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It might well be fair to say that bumblebees should not be able to fly like an aeroplane, but that is OK because they don’t. They use a complex method which involves rotating their wings and is too long to go into here, but that should not be necessary since the very fact that we have all seen bumblebees fly should be enough to destroy the myth.

As for ostriches sticking their heads in the sand at the first sign of danger, you don’t need to be Charles Darwin to work out that if ostriches did respond in this fashion to the approach of a predator, there wouldn’t be any; a species that blindly offered itself up as a meal would soon be an extinct species.

Despite the fact that these myths are easily debunked, they persist. Why? Because people have lost the art of critical thinking – the ability to analyse a situation or claim, rather than jump to an instinctive position or the comfort of a long-held belief. We can see this in the rise of populist politics, or the ability of elders of any given religion to direct the way their flock votes or behaves in general.

Laypeople have that luxury, but solicitors are different animals – we must be able to critically analyse our client’s case or position, to test claims both outlandish and likely, and to ensure that we (and our clients) have the full picture in any given situation.

Solicitors cannot be mere mouthpieces for their clients, nor are they protected by virtue of the fact that they were simply following their client’s instructions. They cannot blindly believe everything a client says – no matter what kind of law they practise, solicitors need the ability to think critically; regrettably, that isn’t taught in law school, or anywhere else it would seem.

A solicitor must train his or her mind to detect inconsistencies both blatant and nuanced, to ensure the duty of competence is discharged; gullibility is not an option in the legal profession. That ability will not be acquired overnight, and must be developed over time, but there are some simple triggers that can assist.

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1. Extraordinary claims require extraordinary evidence5

This is one of the late, great Carl Sagan’s favourite sayings; it is a simple and useful rule of thumb when considering a client’s story. For example, if an unemployed client tells you he was at home watching the cricket on TV when a burglary of which he is accused was committed, you might take his word for it; if he claimed he was skiing the Swiss Alps you would be well-advised to ask a few more questions.

2. Experts don’t know everything

Often referred to as the ‘argument from authority’, a logical fallacy whereby you are asked to accept someone’s opinion because of who they are, not the veracity of the opinion itself. A perfect example of this is the saying, “if you want someone to accept your idea, tell them Benjamin Franklin thought of it first”.6

The upshot is that an expert is an expert only in his or her own field, not in everything vaguely related to that field. For example, in a construction dispute a wood scientist might be able to give valuable evidence as to how certain types of wood behave when subject to flooding or extreme heat, but they would be unable to advise on the structural adequacy of a staircase just because it was made of wood; the quality of the carpentry and the strength of the design do not fall within their area of expertise.

This is particularly important for solicitors, who must not simply accept the evidence of a witness (or a client), but bring their own forensic judgement to bear on each piece of evidence put forward in the case.

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3. They say…

Related to the argument from authority above, this refers to the meme-style snippets of wisdom which whirl around in society, and which are largely accepted despite the fact that no definitive authority is ever cited in support. For example, ‘they say’ you have to drink eight gasses of water a day, or that by the time you are thirsty you are already significantly dehydrated (neither of which is true). It should go without saying, but any claim for which no supporting evidence is supplied should be treated with great scepticism.

4. Straw man arguments

Beloved by some advocates and currently dominating many public debates, this refers to the practice of misstating an opponent’s position to make it sound ludicrous or indefensible. For example, person A states they support action on climate change, and person B responds by saying they cannot believe person A wants to shut down all the power stations in Australia. That is not person A’s position, but is a much easier argument to confront.

For a more fulsome examination of such logical fallacies (and how to detect them) Carl Sagan’s excellent ‘Baloney Detection Kit’ is an invaluable resource. The kit comes from Sagan’s treatise on critical thinking, The Demon-Haunted World: Science as a Candle in the Dark,7 mandatory reading for any solicitor seeking to be at the top of their game and anyone who seeks to avoid being caught up by urban myths, fake facts, and indeed simply survive our ‘post-truth’ world.

Critical thinking is a critical skill for all lawyers, and any who develop it will find themselves at a distinct advantage, whatever their area of practice.

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This article was first published on the Queensland Law Society Law Talk blog on Medium in March 2018.

Footnotes
1 A misrepresentation of Albert Mehrabian’s theory of communication – see ‘Silent Messages’ – A Wealth of Information About Nonverbal Communication (Body Language). Albert Mehrabian. Personality & Emotion Tests & Software: Psychological Books & Articles of Popular Interest. Los Angeles, CA: self-published. 2009.
2 Attributed to many sources, most often Mary Kay Ash.
3 This claim is regularly posted on social media and put forward regularly by corporate trainers and in other forums; the original source is difficult to establish.
4 sites.google.com/site/b1toastmasters/public-speaking-tips/7-percent-rule.
5 The phrase was used by Sagan in his seminal 1980 TV series, Cosmos, and he is widely attributed as the originator of the quote. It was apparently used earlier than 1980 by Physicist Philip Abelson, although he may have heard it from Sagan; neither man appears to have made any claim to authorship of the quote.
6 Authorship uncertain – attributed to David H Comins (of whom, apparently, little is known).
7 Sagan, Carl (1995) Random House.

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  1. One of my first year law lecturers required us to read Peter A Facione’s ‘Critical Thinking:
    What It Is and Why It Counts’ article in Week 1 at James Cook University (Cairns campus). It should be mandatory at law schools everywhere.

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