“Intuition of truth, not preceded by perceptible meditation, is genius” – Lavator, Aphorisms on Man
In my last post I identified 5 methods of knowing, the first of which is Intuition.
Colloquially, we tend to regard intuition as an instinct or sixth sense, something that happens ‘without us’. In so doing we fail to give it the credit it deserves. Intuition is very much us. As part of cognition, intuition is a worthy member of the methods of knowing and one that we want our new and junior colleagues to develop, and apply.
We can assist our colleagues to trigger their intuition at work by ensuring that they are exposed to repetitive experience and specialization, allowing them increasingly to recognize patterns in people and things, and in actions and reactions, as is the case in other disciplines. In geometry, by way of example, “geometrical intuition” is “a kind of skill to imagine, create and manipulate geometrical figures in the mind when solving problems.” Lawyers exercise the same kind of skill:
“The human mind is wired to see patterns…[w]hen we subconsciously spot patterns, the body starts firing neurochemicals in both the brain and gut…not only are these automatic processes faster than rational thought, but your intuition draws from decades of diverse qualitative experience (sights, sounds, interactions, etc.). It’s also faster than rational thought, which means intuition is a necessary skill that can help decision-making when time is short and traditional analytics may not be available.”
Patterns
Scientists refer to this phenomenon as a looping process and a “predictive processing framework.” As our junior colleagues develop a body of experience, the brain increasingly has something to measure a new experience or stimulus against. This strengthens intuition and makes it more reliable.
Intuition does not of course replace reason, logic or the other methods of knowing, it supplements them. And just as we can assist our colleagues in applying logic and reasoning to their work, we can do the same for intuition. The key, as noted above, is repetitive experience and ‘specialization”. While random and disconnected assignments are part of the job, a diet made up of little more will not do much to improve the ability of our junior colleagues to sense. We need to ensure, again, that our colleagues recognize patterns: patterns in events and circumstances, patterns in terms, patterns in issues and in consequences. The very best way of ensuring this is to allow them to see and be engaged in not just some pieces of a significant action or transaction, but in all pieces of it; and increasingly not in all types of matters or transactions but in the same kinds of matters or transactions.
Putting Intuition to Work
It is not at all difficult to appreciate how and when our new and junior colleagues will benefit from our efforts to assist them early on in developing this necessary skill. An educated instinct will assist them when they have to:
- consider file opportunities originating from cold calls or referrals
- determine the efficacy in light of prevailing circumstances of alternative precedents or forms in the drafting of contractual agreements
- interview and counsel clients in business matters
- counsel and prepare clients or witnesses in litigation matters
- negotiate or settle business transactions
- examine witnesses at a hearing
Intuition has been referred to as “that quiet voice that suddenly speaks up to lead you to an unknown truth”. I like this description. This will not happen without training.
The most important thing all lawyers are called upon to do, whether inside or outside a courtroom, is assess credibility. Intuition more than arguably has a role to play. As explained by Bastarache and Abella JJ. in Gagnon, (SCC, 2006) assessing credibility “is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events”. And as Cory J. stated in Lifchus (SCC, 1997) at para. 29, “[a] juror should not be made to feel that the overall, perhaps intangible, effect of a witness’s demeanour cannot be taken into consideration in the assessment of credibility.”
The Cambridge English Dictionary defines “intangible” as “something that exists but that cannot be touched, exactly described, or given an exact value”.
That then is intuition, and our new and junior colleagues will require it.
This blog post was written by K. Scott McLean, General Counsel and Director of Practice Development. He can be reached at (613) 369-0375 or at [email protected].
