Where Does Memory Come From?

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The human memory is crucial to a trial. It is the essence of a lay person’s testimony. So where does memory come from?

In the Organized Mind neuroscientist Daniel Levitin explains.

When we experience an event, a unique set of neurons is activated. The act of remembering something is a process of bringing back on line those neurons that were involved in the original experience… Once we get those neurons to become active in a fashion similar to how they were during the original event, we experience the memory as a lower-resolution replay of the original event. If only we could get every one of those original neurons active in exactly the same way they were the first time, our recollection would be strikingly vivid and realistic. Remembering is imperfect; the instructions for which neurons need to be gathered and how exactly they need to fire are weak and degraded, leading to a representation that is only a dim and often inaccurate copy of the real experience. Memory is fiction. It may present itself to us as a fact, but it is highly susceptible to distortion. Memory is not just a replaying, but a rewriting.

We have a better time remembering unique events. For example, the memory of locking your front door today may be forgotten. You lock the front door every day, so the experience shares similarities with many other door locking times. Making it easier for the brain to get fooled by competing memories.

However, out of the ordinary events are easier to retrieve. “[T]here is nothing competing with them when your brain tries to access them from its storehouse of remembered events.” Memory retrieval requires our brains to sort through multiple instances and pick out the one we are trying to collect.

Evolutionary wise it makes sense that we have an easier time remembering unique events. We need to register the change in order to maximize our chance for survival.

Additionally, having a strong emotion attached to an event, makes it easier to remember. A strong emotion can consist of being frightened, elated, sad, or angry. These emotions make it more likely that we will remember the event. This is because our brain creates neurochemical tags that accompany the experience. It is like placing a highlighter over the event.

Again this highlighting function makes sense from an evolutionary standpoint. If a strong emotion is linked to the event, it’s probably because we need to remember it for our survival. E.g. the smell of rotten food or being backstabbed by a friend. Unfortunately, even though we may have an easier time retrieving the memory, the “highlighter” associated with emotion doesn’t mean the memory is more accurate.

Memory is fallible.

(This post was originally posted on slaw.ca. Views are my own and do not represent the views of any organization.)

Why Multitasking Doesn’t Work

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The brain seeks out novelty.  And multitasking feeds that addiction.

How many times today did you check your phone while doing something else? Did you just check it? Did you get some “important” text?

In “The Organized Mind”, neuroscientist Daniel Levitin explains that multitasking is an illusion. When we are multitasking, we are really shifting quickly between tasks. We aren’t doing 5 things at once. We are shifting focus between 5 things. And there is a huge metabolic cost to shifting focus from one thing to another.

Levitin explains that multitasking depletes the brain of neurochemicals, making you more tired. Ultimately putting you in a state of aggression. That is why people who focus on one thing at a time accomplish more and are less tired.

Asking the brain to shift attention from one activity to another causes the prefrontal cortex and striatum to burn up oxygenated glucose, the same fuel [the brain] need[s] to stay on task. And the kind of rapid, continual shifting we do with multitasking causes the brain to burn through fuel so quickly that we feel exhausted and disoriented after even a short time. We’ve literally depleted the nutrients in our brain… repeated task shifting leads to anxiety, which raises levels of the stress hormone cortisol in the brain, which in turn can lead to aggressive and impulsive behaviours… staying [on task] uses less energy than multitasking and actually reduces the brain’s need for glucose.

The brain burns glucose the way a car burns gasoline. In an hour of daydreaming, the brain uses 11 calories. (Daydreaming restores the brain’s neurochemicals.) In an hour of reading, the brain burns about 42 calories. In an hour of sitting in class, the brain burns 65 calories.

So why do we love multitasking? The answer is that we are hardwired to love novelty and accomplishment. When we check our phone, we get to see something new. When we send an email, we get to feel a sense of accomplishment. The brain gets a reward of hormones. Levitin explains:

The very brain region we need to rely on for staying on task is easily distracted by shiny new objects. In multitasking, we unknowingly enter an addiction loop as the brain’s novelty centres become rewarded for processing shiny new stimuli to the detriment or our prefrontal cortex, which wants you to stay on task and gain the rewards of sustained effort and attention… The awareness of an unread email sitting in your inbox can effectively reduce your IQ by 10 points, and that multitasking causes information you want to learn to be directed to the wrong part of the brain.

To make matters worst, multitasking requires decision-making, which further depletes the brain’s energy. Do I answer this message now or later? How do I respond to the email? Interestingly, making little decisions can take up just as much energy as making big decisions.

So next time you hear the siren calls of multitasking, don’t be fooled. “Make no mistake: E-mail, Facebook, and Twitter checking constitute a neural addiction.”

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(Views are my own and do NOT represent the views of any organization.)

 

Third Party Funding of Litigation: Hulk Hogan Edition

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“I love my grudges. I tend to them like little pets.” – Big Little Lies 

Funding your lawsuit just got easier. People can now start online campaigns to raise money. Including signing up for Kickstarter, Gofundme, IndieGoGo, and so on.

However, the most interesting source of funding is Peter Thiel. The co-founder of PayPal. In the case of Hulk Hogan versus Gawker, Peter Thiel allegedly funded Hogan’s lawsuit against the media company Gawker. This lawsuit dealt with the publication of Hogan’s sex tape.

Peter Thiel allegedly funded the lawsuit as part of a personal vendetta against the media company Gawker. A vendetta that allegedly started almost ten years earlier, when the company outed him as gay.

As a result of this vendetta, Hogan’s lawyers were allegedly instructed to draft the pleadings in a particular way. Particularly to avoid triggering Gawker’s insurance. Forcing Gawker to fund their own defence and to pay for any judgment against it out of its own pockets.

This tactical manoeuvre was only possible because of Peter Thiel. Had Hogan been required to pay for the lawsuit himself, he probably would have intentionally triggered the insurance coverage for Gawker. And he would have settled the case with the insurer. In order to avoid incurring more legal fees and to guarantee that he would recover some money.

However, by cutting out the insurer,  Thiel could ensure that any judgment against Gawker would be paid personally by the company. Allowing him to bankrupt Gawker. Which he ultimately did when Hogan was awarded around $140 million in court.

As they say, “revenge is a dish best served cold”.

(Views are my own and do NOT represent the views of any organization.)

Silencing Meghan Markle

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Last month, rumoured future princess Meghan Markle disbanded her social media accounts and closed her lifestyle website. You can see her proudly talking about her website in this Holts Muse clip. As a feminist, her descent into silence disturbed me. Transformed into yet another “princess”, whose power lies in a wave or a smile. To quote Shonda Rhimes in this week’s Scandal:

They don’t give a crap about what you’ve sacrificed to get here, every drop of blood, bead of sweat and fallen tear — they just want to turn you into a figurehead … into some princess whose only power lies in a wave or a smile.

But does joining an institution mean “shuffling off this mortal coil? And only speaking with institutional approval?

The answer appears to be “yes”.

Interestingly, judges in Canada experience a similar pressure. Once outspoken in private practice, their ascendence into the judiciary often means a sacrificing of one’s public voice. A muting of one’s self. A dulling of the critique.

This stands in contrast to the United States. Where judges have social media accounts. Which remain active. Which remain thought-provoking. Which remain civilized. Well after their appointments to the Bench. For an example, see Judge Dillard’s account here: https://twitter.com/JudgeDillard

I believe that our judges should be encouraged to connect with the public, including on social media. When done tastefully, it breathes humanity into an often sterile institution.

At one time, institutions had no choice but to speak through a unified spokesperson. But, the emergence of social media allows for judges, members of established institutions, to have their own voice. And to invite the public into an institution, too often shrouded in exclusivity.

Given social media’s power in connecting us, why should joining an institution – be it the Royals or the judiciary – mean the silencing of one’s voice? Isn’t there enough room to be both an individual and a member of some greater institution? Why all the subordination? How does this type of silence help institutions maintain their relevancy?

(Views are my own and do not reflect the views of any organization.)

Living with “Option B”: Sheryl Sandberg’s New Book

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With the rise of social media, everyone’s life on Instagram, Facebook, Snapchat etc. looks perfect. Everyone appears to be living an “Option A”, idyllic kind of life. But life is never perfect. “We all live in some form of Option B. This book [Option B] is to help us all kick the shit out of it.”

Option B triumphs where Lean In never did. Partly due to Sheryl Sandberg’s writing partner, the great Professor Adam Grant at the Wharton School of the University of Pennsylvania.

Where Lean In encouraged women to pursue their ambitions, and basically promised women that they too could have it all. Option B is a more nuanced and thoughtful book.

Option B has the depth that Lean In never did. A recognition that we are not all handed the same deck of cards, and not everyone can lean in all the time. Sometimes health problems, familial obligations, or deaths prevent us from doing so.

Following the death of Sheryl Sandberg’s husband, she was living through a nightmarish Option B. This was compounded by the fact that people weren’t sure how to react to her. Their discomfort was palpable.  People would greet her with the standard meaningless greeting of “how are you?”. She felt like responding, “My husband just died, how do you think I am?” But held back.

Sandberg and Grant write that “All over the world, there is cultural pressure to conceal negative emotions. In China and Japan, the ideal emotional state is calm and composed. In the United States, we like excitement (OMG!) and enthusiasm (LOL!).” American culture demands that we answer positively. We need to be awesome. “Admitting that you are having a rough time is almost inappropriate.”

To counteract this, they encourage us to practice self-compassion. “Self-compassion comes from recognizing that our imperfections are part of being human.”

In addition to practicing self-compassion, Sandberg and Grant recommend that we count our blessings. And That we count our contributions. And that we count our moments of joy.

For example, after the death of her husband, Sheryl Sandberg journaled every night. At first, she was skeptical because she was barely functioning. But she found journalling helpful in managing her grief. Originally she wrote down three things she was grateful for. She later turned to writing down three things she accomplished each day (like getting dressed, focussing in a meeting…). Eventually, she transitioned to writing down three moments of joy, which she continues to do to this very day.

Paying attention to moments of joy takes effort. This is because we are wired to focus on the negatives.

But by focussing on the joyful moments, we can become happier. Happiness is the frequency of small positive moments, and not the intensity.

To bounce back after negative events, we need to avoid three behaviours. (1) personalization – the belief that we are at fault. Sometimes it is not you, it is really them. (2) pervasiveness – the belief that an event will affect all areas of our lives. (3) permanence- the belief that the aftershocks will be forever. Studies have shown that we recover faster when we realize that hardships aren’t entirely our fault, don’t affect every aspect of our lives, and won’t follow us forever.

Resilience comes from deep within us and from support outside. It comes from gratitude for what’s good in our lives and from leaning in to the suck. It comes from analyzing how we process grief and from simply accepting that grief. Sometimes we have less control than we think. Other times we have more.

I learned that when life pulls you under, you can kick against the bottom, break the surface, and breathe again.

(Views are my own and do not reflect the views of any organization.)

Court Forms: Confusing by Design

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You name it, there is probably a court form for it. A form for service. A form for requisitioning something. A form for confirming something. A form for costs. A form for a back page. And so on. Navigating these forms requires experience and ideally a law degree. But the increasing numbers of self-represented litigants means that our forms need to be examined. They need to be user friendly.

I have watched countless self-represented litigants struggle with understanding court forms and court processes. All the while, watching government clerks guide them through these forms. And who can blame the self-represented litigants? Does it make sense that you get the forms online, fill them in, then file the form in-person? Does it make sense that the forms do not include rules about service? Does it make sense that the way lawyers count days in Ontario is different than the way everybody else counts a day? Does it make sense that sending someone a document after 4pm equals service on the following day? Does it make sense that serving someone by email is a pain in the a**?  Does it make sense that you go to court to book a date with the court?

But the longer I interact with the system, the less absurd it looks to me. I become more and more desensitized to the structure. I become used to the confusing design of it all. Instead, it begins to look normal. Of course, you don’t count a holiday. Of course, you fax it. Of course, you file it in person. Of course, you need to have the original (even though the whole document was created electronically). Of course it takes years to resolve your claim.

But how does our court system maintain its legitimacy if it remains out of date. If it continues to cling on to paper? If it continues to communicate in legalese? If it continues to process cases slowly? If it puts civil cases on the back burner? If it continues to go on like the Internet is some kind of phase, like a moody teenager.

Why do we think that treating our courts “like some kind of fossilized Jurassic Park will enable them to continue to provide a most needed service to the public in a way the public respects? How many wake-up calls do the legal profession and the court system need before both look around and discover that they have become irrelevant museum pieces?” (Bank of Montreal v Faibish, 2014 ONSC 2178)

Luckily, it appears that our government is beginning to change things. The Ministry of the Attorney General will be launching an e-filing service in five locations on April 24, 2017.

The Ontario Bar Association announced that “Phase 1 of the service will enable e-filing of the documents required to initiate a civil action in the Superior Court of Justice, auto-issuance of statements of claim and notices of action, and online payment. The pilot will be launched in Brampton, Ottawa, London, Newmarket and Sudbury, with a province-wide rollout to commence later in the year. The second phase of the service will be introduced shortly after the full rollout of phase 1, and will enable the e-filing of additional document types.”

I eagerly await these changes. I hope that the electronic filing assists users with the confusing rules about service. Ideally by incorporating prompts about service in its design and prompts about other rules (like adding a party).

(This is not a sponsored post. Views are my own and do not reflect the views of any organization.)

Tomorrow’s Law Firm

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In The Future of the Professions Richard and Daniel Susskind state that we are starting to see technologies displace traditional ways of working. We are still in a transitionary phase between the era of the print-based society and the Internet based society. During this transitionary phase, traditional professionals working in conventional institutions will still be needed as the main interface between the lay person and the specialized knowledge. However, as we fully progress into an Internet/technology based society, traditional professionals will no longer be THE DOMINANT interface between lay people and knowledge/expertise.

It is in this context of reading the Future of The Professions and other like minded articles that I predict the future of law firms.

1. Tomorrow’s law firm will look different.

2. Most firms won’t be built upon the billable hour. Or the billable hour masquerading as something else. It will charge clients based on the end product. The focus will be on the end product. And technology will transform how the end product is created.

3. Anything that can be outsourced or automated will be outsourced or automated.

4. Law firms will be managed by non-lawyers, with specialized training.

5. The raison d’être for firms will shift towards client experience.

6. Law firms will use gamification to get employees to work harder, preferring the carrot over the stick.

Currently Uber is using gamification to incentivize its drivers. Using psychology to make drivers take on more riders. Or using psychology to make its drivers go to certain areas at certain times.

In the New York Times article, “How Uber Uses Psychological Tricks to Push Its Drivers’ Buttons”,  they say:

The secretive ride-hailing giant Uber rarely discusses internal matters in public. But in March, facing crises on multiple fronts, top officials convened a call for reporters to insist that Uber was changing its culture and would no longer tolerate “brilliant jerks.”

Uber’s innovations reflect the changing ways companies are managing workers amid the rise of the freelance-based “gig economy.” Its drivers are officially independent business owners rather than traditional employees with set schedules. This allows Uber to minimize labor costs, but means it cannot compel drivers to show up at a specific place and time. And this lack of control can wreak havoc on a service whose goal is to seamlessly transport passengers whenever and wherever they want.

Uber helps solve this fundamental problem by using psychological inducements and other techniques unearthed by social science to influence when, where and how long drivers work. It’s a quest for a perfectly efficient system: a balance between rider demand and driver supply at the lowest cost to passengers and the company.

Employing hundreds of social scientists and data scientists, Uber has experimented with video game techniques, graphics and noncash rewards of little value that can prod drivers into working longer and harder — and sometimes at hours and locations that are less lucrative for them.

In sum, Tomorrow’s Law Firm will look different than the firms of today. They will be meaner, leaner, and smarter.

(Views are my own and do not reflect the views of any organization.)

The Last Tuesday in May: The OBA Gala

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On the last Tuesday in May, the Ontario Bar Association will be hosting its inaugural Young Lawyers Gala. The keynote speaker will be Michael Bryant, the former Attorney General of Ontario and current change-maker.

The Gala is a unique social event. Designed to bring together the next generation of legal leaders and influencers in Ontario, hosted in the elegant setting of the Gardiner Museum (111 Queens Park, Toronto).

Like the Met Gala, the event is a fusion of business and art. As Anna Wintour said in the Met Gala documentary The First Monday in May: “You need the mixture of art and commerce.” One cannot survive without the other.

Similarly, to succeed in the law you need the mixture of art and commerce. You need the marriage of analytical thought and networks. Nothing survives without the two.

So on May 30, 2017,  come join the Ontario Bar Association, as we herald in the first Gala of its kind. A Gala of young lawyers, created by young lawyers, for young lawyers.

Lawyers, law students, and articling students, I hope to see you there.

(This is not a sponsored post. Views are my own and do not reflect the views of any organization.)

The Notorious RBG: The Life & Times of Ruth Bader Ginsburg

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Ruth Bader Ginsburg is a force to be reckoned with. Brought up in Brooklyn. Raised by Jewish immigrants. She was determined to succeed.

The book The Notorious RBG chronicles her life, with references to words of advice. “RBG often repeated her mother’s advice that getting angry was a waste of your own time.” And shared her mother-in-law’s advice that sometimes it’s best to be a little deaf. Crediting these beliefs as helpful in creating a healthy marriage.

Before becoming notorious, RBG graduated high school at the top of her class. After high school, she attended Cornell University and then Harvard Law School.

Despite her credentials, she had difficulty obtaining work. RBG had three strikes against her. She was Jewish. She was a woman. And she was a mother. She was rejected as a clerk to the Supreme Court, and she was turned down by a New York law firm.  The firm had already hired one woman and felt that one was enough.  Eventually she found work as a law clerk with a federal judge.

After clerking, RBG went on to teach law at several universities. While teaching, RBG appeared before the Supreme Court on many equality related cases. Acknowledging that “change in our society is incremental… Real change, enduring change, happens one step at a time… Present the court with the next logical step… then the next and then the next. Don’t ask them to go too fast, or you’ll lose what you might have won.”

Following her time as a professor, RBG was appointed to the bench. Part of RBG’s success goes to her supportive husband, who encouraged and enabled her to reach new heights. Ten days before his death in 2010, he wrote in a note to her that “… What a treat it has been to watch you progress to the very top of the legal world!!!…”

While working at the Supreme Court, RBG keeps a disciplined schedule. In writing decisions, her mantra is to “Get it right and keep it tight… If you can say it in plain English, you should.” She writes numerous drafts until getting it right, noting that: “I think that law should be a literary profession… and the best legal practitioners regard law as an art as well as a craft.”

Ruth Bader Ginsburg is truly an inspirational woman.

(Views are my own and do not represent the views of any organization.)

Do a Trial

This week I had the great pleasure of volunteering at the Advocates’ Society “Do a Trial”. Below is a list of helpful tips I learned:

  1. Stop talking like a lawyer. Remove legal jargon.
  2. You don’t want to sound like a lawyer. Members of the public don’t like lawyers.
  3. Outline the issues in the opening that you want the judge to answer. Give a roadmap of the evidence – who, what, where, when, why, and how. Only say facts with certainty if you know you can prove it.
  4. It is important to know what use you can make of a witness.
  5. When questioning a witness, know what points you want to make. Each point should be its own page of questions. Repeat phrases throughout. So it flows from one question to the next.
  6. Questions in direct should address – who, what, where, when, why, and how. Avoid talking about stuff that doesn’t matter.
  7. The direct examination should be a narrative.
  8. “Tell me more”. “I’d like to move towards X” – Can be great transitional statements.
  9. Cross-examination should be short statements put to the witness. Build to the conclusion.
  10. Facts have to be pursued. They have to be elicited through the witness.
  11. Reinforce the story through the witness.
  12. When you say phrases like “You concede”, the witnesses antennas go up. They know to fight you on that point.
  13. In closing, focus on the facts you want the judge to remember. And it should address what you want the judgment to say. Point out what you think the crucial things are. And link them to the issues in the case. Headline the issues. “Put the trial back on its rails”.
  14. When you object, remember to wait for the judge’s ruling.
  15. Don’t read something out loud if it is more than 6 words.

(Views expressed in this blog are my own and do not reflect the views of any organization.)