Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m F E B R U A R Y 2 0 1 8 19 Understanding how prospective clients think can impact how you market your law firm. Imagine yourself a prospective cli- ent landing on your firm's website. The website asks if you want to allow cookies in order to enhance your website experience. Being like most people, you are somewhat aware that cookies attach to your browser benignly. But you read something about them somewhere and your overall impression leans toward not allowing cookies. You congratulate yourself on being prudent, but your web experience becomes muted. The law firm suffers an opportunity cost. Continuing your search, you land on another site that clearly, but not alarmingly, states that a small piece of code — a cookie — shall be added to your web browser. Once again, you don't know anything more about cookies than you did five minutes ago, but you proceed regardless. Your web experience becomes far more customized, and the law firm discovers substantial information on future clients' interests. Most clients intuitively refuse to accept cookies given the choice. The critical part of the mind would not examine the situation since there did not appear to be an immediate need. A client merely advised of cookie use would likely proceed, confident in the notion that someone vetted the cookie usage for them. The concept of providing a default cookie option nudges the client into a better result. One would think that providing a range of options pro- vides greater satisfaction than fewer options. However, Thaler says that having too many options leads to greater stress and reduced satisfaction. Therefore, providing a default option increases the probability that a correct choice is being made. Thaler euphemistically refers to this as libertarian pater- nalism. People make better decisions by the correct arrange- ment of choices. The person in charge of this arrangement becomes the choice architect. A lawyer becomes a choice architect in numerous ways. In speaking with a client and laying out their options, the phras- ing of options impacts the client's choice. Many lawyers tend to say "on one hand this and the on other that," because they want to leave the choice of options strictly to the client. How- ever, in reality, one should determine what level of guidance the client requires. Normally, they would want the lawyer's best recommendation. Thaler parses the various tools that a choice architect has into five main aspects: incentives, mapping, defaults, feed- back, expect errors and structuring complex choices. For example, data visualization of legal information can illustrate the difference between complex choices. In retaining clients, understanding the process behind making decisions increases your value proposition or your benefits relative to the costs. By making the correct choice easier, you have channeled your client to the correct choice. You have reduced not so much the monetary cost to the client but the stress cost of making that decision. In making an intuitive choice, clients want to know what other people did in similar situations. Thaler found that a need to conform easily influences peoples' choices. Clients could operate on this basis to decide how to proceed on a case. They would rely more on what friends and other people have done in a similar situation. This points to the impor- tance of stories. Relating other individual's stories can add additional comfort to clients and make the decision easier. Adding stories to your advice makes a client's choice easier. To demonstrate this, Thaler identifies greater compliance in hotels where people are advised that previous guests picked the economical option of not having their towels replaced daily. People like to be part of the crowd, as this makes their decisions easier. Your law firm stories should reflect how generally others have proceeded. These concepts should be incorporated into continuing professional development for all lawyers. As a final example, do you think it is more likely that the number of lawyers in Canada is between 60,000 and 70,000 or between 70,000 and 80,000? As you can see, I have provided some anchoring information here and in the very first para- graph. The federation of law societies lists 117,000 lawyers practising today. When people rely upon their intuition, they can be swayed by other factors. These innovative concepts require greater examination and incorporation into today's law practice, particularly in cases where they might operate to your client's detriment. Did you feel the nudge? Gary Goodwin is in-house counsel for a conservation organiza- tion, and since he would like to keep it that way, all expressed opinions are strictly his own. CORPORATE COUNSEL Connect with Find more than 4,100 corporate counsel and over 1,500 organizations along with fresh editorial content, information on deals and links to important resources. Lexpert.ca/ccca ntitled-12 1 2018-01-23 1:06 PM

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