Speaking of lawyers, what kind of image do you have in mind? Is it Zhang Wei in ipartment or He in Why Shengxiao Mo? Is it Zhou Xingxing in Death Judge or Allen Shaw in boston legal? Maybe both.
I don't know what the image of a lawyer is in the eyes of all of you here. But I know that lawyers may not be a good image for psychologists.
There is a principle in psychology called "confirmation bias", which means that if you have begun to believe something, you will actively look for information that can enhance this belief, and ignore the information that denies this belief, even regardless of the facts. We have heard many stories, for example, Bigan gave up his heart, and the emperor had to kill the loyal minister who advised him; For example, in those cases of telecom fraud and health care products fraud, the old man should believe the liar, and he can't stop it. You persuade him, but he still thinks you are unfilial. This is the function of this psychological mechanism.
To explain this psychological mechanism, Leonard? Meng Lodino said in his book The Subconscious that there are two mechanisms when people make judgments. One is the "scientist mechanism", that is, there is evidence first, and then conclusions are drawn. Don't rush to conclusions before the evidence is sufficient; The other is the "lawyer mechanism", that is, you come to a conclusion first, and then you look for evidence. When you encounter evidence that is inconsistent with the conclusion, you will "I don't listen, I don't listen, I don't listen." Then he said that most people in this world are lawyers and few scientists.
Cognitive scientists Messia and Sperber wrote a paper, "Why do humans reason? At 20 1 1. Even think that people's logical reasoning ability is not used to pursue truth, but to convince others; Our brain is a debating device, and we are born with lawyer thinking.
This view is very interesting and insightful. Indeed, most of the debates we see, especially those on the Internet, are generated in this way. However, I don't like its name-you said that scientists represent objectivity and neutrality, which is of course no problem. However, how can lawyers become synonymous with subjectivity and prejudice?
Is it true that the lawyer said it was black, white and fake? The lawyer's way of thinking is to recognize people and ignore them. I will defend everything you say, and I will object to everything you say. Is this naming itself a "confirmation bias"?
When learning a subject or a skill, we often say that the key to learning well is to master its way of thinking. To understand science, you must think like a scientist; To understand art, you must think like an artist; Similarly, to understand the law, you must think like a lawyer.
However, if the lawyer's thinking is what psychologists call "stand first, regardless of the facts", and if the lawyer's job is only to help, then his value is not great, and there is no need to learn, because that is our instinct.
The significance of a lawyer is that he can not only help you in individual cases, but also give you planning and guidance as a whole. Behind this is a system and methodology. Therefore, when I saw those best-selling books, the titles were "36 plans for litigation" and "72 strokes for lawyers", I felt very annoyed. It's not that lawyers have no tricks, it's not what I mean, it's just that such a statement tends to make people ignore the bigger truth. But the problem is, if you only know one trick and a half, without the support of this whole set of thinking mode behind you, it is just-wild fox Zen.
So, what is thinking like a lawyer? Why do lawyers think so?
Let's start with two familiar scenes.
The first scene, a lawsuit.
I have a good friend, Marseille lawyer, who has a politically incorrect practice motto. He is called "protect your customers, but don't trust him too much."
Everyone knows this sentence: "protect your client, but don't trust him too much." What do you mean? This sentence is actually not insidious, nor is it a conspiracy theory, nor is it to undermine the trust relationship between lawyers and clients. It emphasizes that lawyers should have a calm and objective perspective.
Everyone has seen the movie Rashomon, right? Or, do you all know? The truth is never simple or pure. Looking at the same story from different angles, there are often different versions. The statements of the parties often inevitably have their own emotional color, which has been selected and tailored by their own value orientation. There is no right or wrong, but if a lawyer only looks at the problem from the perspective of the client, I'm sorry, you can't help him. Because all he got was approval, not help.
The duty of a lawyer is to help the parties get a positive evaluation of the law. When it comes to litigation, it is to help the parties get the support of the judge. How can I get support? First of all, you need to know how judges look at the problem and how our judicial system makes judgments.
what do you think? Please imagine that you are a judge, and two strangers you don't know come to you and tell different versions of the story. For example, Zhang San gave Li Si a sum of money. Zhang San said that this is the money I lent to Li Si. Li Si said that this is the money that Zhang San returned to me. Who owes who? How do you judge? Who do you trust? What makes you believe him? Everyone will definitely say, look at the evidence. A hand stretched out, and the evidence? Ok, take out a bank transfer voucher. You see, Zhang San did transfer a sum of money to Li Si. Okay, can we talk? I can't. Because the flow of funds is there, but the nature of money is unknown. What kind of money is this? Borrow money? Repayment? Investment money? Current payment? Or a gift? I don't know
All right. You asked Zhang San, and you said you lent him money. Where is the iou? Zhang San said he didn't have a loan. No IOUs? Then can you open your hand? Well, there's no evidence, right? Refute. Is it okay? According to statistics, the proportion of private lending cases concluded by Beijing No.1 Intermediate People's Court in the last eight years without any written loan agreement reached 19.92%. Do you refute all the cases of 19.92%? I don't think so, do I?
All right. You ask Li Si again. You said you had lent him money before. What about the evidence? Li Si said that he was given cash at that time, and after he paid back the money, I tore up the loan in front of him. Well, there is no evidence, but it doesn't sound unreasonable. How to judge now?
We often say that a lawsuit is just evidence; The judge is always asking, is this sentence reasonable? Give me proof. What does this mean? What is evidence? Why do you need evidence?
We want evidence because the river of time is gone forever, and we can never go back to the moment when it happened. We can never see, hear and confirm the objective truth of things with our own eyes. We can only guess what it was more likely to be like at that time by some traces after the event and the surrounding signs. It's quite crucial. You can see the leopard in the tube. That's the truth. And these marks and signs are what we call evidence.
So, with these traces and signs, everything will be fine? That's not true. The so-called material in life is called evidence in court. The difference between materials and evidence lies in whether you have legal significance, whether you can enter the scope of my legal consideration and investigation, and whether you can let me write a judgment accordingly.
How can it have legal significance?
First of all, we must solve the problem of evidence ability. Which means whether it can be used as evidence. Some illegally obtained evidence, or contaminated evidence, or unclean evidence, cannot be used as evidence in court. When we go to court, I'm sorry, we can only rule it out.
Secondly, we should solve the problem of probative force. What can you prove? Nothing can be proved. Is it a proof of inevitability or probability? Is it a proof of high probability or a proof of low probability? How strong is it? What's the effect? Are there any conflicts and defects? The probative power of an evidence often requires us to torture to get an answer. For example, is it a single orphan, or are there other materials that can confirm each other and form a chain of evidence? Is it strong enough, or is it likely to be weakened by the defense or proof of the other party? Will it change? What places may change? What will happen after the change? Wait, wait, wait, every question needs our repeated deliberation and torture.
Finally, we have to solve the problems of organization and deduction. Because the material itself is only bricks and tiles, bricks and tiles will not automatically become buildings, which requires you to treat logical thinking as cement and concrete and pour them together; It needs the applicable rules of law, burden of proof, standard of proof and so on. One pillar after another, build them into a building.
So when dealing with these problems, lawyers are actually like architects. He needs to find and even create suitable materials, and then organize and frame these materials in an effective and reliable way to build a solid building. A good lawyer, when he saw the materials, has been automatically upside down in his mind, organized to see if he can use facts and laws to build this building.
What is the pouring process like?
Take borrowing money as an example. Zhang San borrowed 50 thousand from Li Si before, and now there is an iou that says, "Today, I still owe 30 thousand." Is Hai owed 30,000 yuan or Huan owed 30,000 yuan? In other words, is the money to be paid back later 30 thousand or 20 thousand? If there is no other evidence, only a note, how to judge? Ladies and gentlemen, what's your's answer? What is the reason?
The correct answer is to see who has this iou. Because we usually put things like IOUs, IOUs and receipts in the hands of the other party or the party who has obtained rights. Therefore, if it is in the hands of the lender, it is that the sea owes 30,000 yuan; If it is in the hands of the debtor, it is that Huan owes 30 thousand. For questions like this, we should combine our common sense and use logic to infer. For example, the inference just now, the result is who has the note, and the presumption is beneficial to whom.
Our lawyers often emphasize to clients that we should leave marks and have a sense of leaving marks. Don't just call, don't just say yes, sign for it, send an email, and confirm it in writing; It is not enough to have the result of confirmation, but also to have the process of confirming identity, facts and premises; It is not enough to save a screenshot, but also to have the original record and the original carrier. ...
As the saying goes, "it's fun to go to the crematorium." People with occupational diseases like me hardly delete any chat records and hardly sign any blank paper. The reason for doing this is not because I like Wenshan's book sea, nor because I am suspicious, but to overcome the natural difficulty of restoring the truth. We should be able to restore the truth to a third party forcefully, reliably and credibly when necessary. There is a philosophical background and a profound epistemological foundation behind this.
The second scene, talk about the contract.
When it comes to negotiating contracts and doing business, people usually dislike lawyers. They think this is in the way: we have such a good atmosphere now and the talks are so smooth and pleasant. You have to come out and ask: What if you break up? How can you be accountable if you can't do it? Isn't this a party pooper? We agree that everything should be negotiated amicably. You must find out who is in charge now. Isn't this ruining the atmosphere? On the wedding night, when two people are jealous of each other, you have to kill them and ask, what do you think of how to divide the property during divorce? Are you happy we can't get married? Two words, trading killer. To put it mildly, I would say, did your lawyer make things too complicated? Can it be simpler? Will you stop being so wordy?
That's right. "Talk about breach of contract before signing a contract, divorce before getting married." That's us. But why should we do this? Do we all have the illusion of persecution?
Do you know what is the biggest controversy in the company commercial court of the court? Usually a dispute between shareholders. What is the biggest problem in litigation between shareholders? Our most common situation is that customers come to consult, or I invested money at that time, but the major shareholder controlled everything and wouldn't let me audit the accounts. I wanted to participate in the business, but I obviously made a lot of money, but I insisted that I didn't make any money, refused to pay dividends, and even said that I lost money. I want to invest more, so I said forget it. Then I quit altogether, and you gave me my money back. I quit, and so did the result. Or the minority shareholders poached, deliberately destroyed the company, and secretly opened another company, operating the same business, and poached the company's customers and resources; Or, when it comes to major decisions, it will be deadlocked. Either no one will give in, no one can make decisions, or no one cares.
When we ask, what about the shareholder agreement? No. What about the articles of association? Format template used by the industrial and commercial bureau. Are there any shareholders' meetings and resolutions on these issues? No, meetings have never been held, or meetings have been held, but they are all oral.
As soon as we heard it, alas, this matter of yours is complicated and difficult to handle. We have to fight several lawsuits in succession. For example, we may have to fight for the right first, then the right to know, then the right to share dividends, then the liability dispute that harms the interests of the company, and then the infringement of trade secrets, balabala and so on. And a series of lawsuits may not solve the problem.
Hearing this, the client fainted. Q, does the law care? What we want to explain is that the law governs, but different fields have different laws. For example, the company law has a basic principle, which is called fully respecting the principle of company autonomy. This means that the law will only stipulate some big frameworks, some principled and bottom-line things, and the rest will be left to you. It's your call, you have a high degree of autonomy, and I won't interfere. What is the way of autonomy? It is the shareholders' agreement, the articles of association, and these are the internal articles of association of your company; The resolution of the shareholders' meeting is a one-way method within your company.
Doing business is the same as signing a contract. Basic principles: if there is an agreement, it shall be implemented according to the agreement; If there is no agreement, it shall be legal. The first is the agreement between you. Your contract is the law between you. These things should be your autonomy, and the law will not control them, nor should it. Can a country be governed without legislation? Now it's your turn to legislate, but you don't do it. Who is to blame for this?
Hearing this, customers are often a little desperate. Some people have a deeper love-hate relationship, and even broke up and killed each other: Lawyer Deng, I know something. His ass is not clean. Do you think you can clean him up? What's more, he even said, can we find a way to file criminal charges and put him in jail? You see, we were in love, and now we are killing each other, and we have arrived in do or die.
So, ladies and gentlemen, not because we are pessimistic, but because we are planning and legislating. We should plan the road behind us bit by bit and design it bit by bit. We are laying a track for the train, and hope that the cooperative train will run better, safer, more stable and longer. It doesn't matter if you can't drive all the way. At least you can get off at the station without jumping out of the car, let alone blowing it up.
We often describe a mature and sound legal system, from cradle to grave. In fact, a good lawyer is more like a transaction designer. He let you cross the river without feeling the stones. He helps you plan a road map, opens a road on every mountain, bridges in case of water, holds your hand and takes you across the Liusha River. A good contract, like a manual, should be not only responsible, but also operational, not only complete, but also executive. You don't have to ask others how to do this transaction. There is no need to discuss it now, disrupt the battle, open the contract and follow the map one by one.
So, you think we have too many rules and regulations, in fact, we are legislating for transactions; You think that we emphasize norms only to follow the rules, but in fact, we are based on long-term, overall and overall consideration. This is an adult's career, based on understanding transactions and understanding human nature.
Back to the original question, what is the "lawyer model"?
If the lawyer mode is only synonymous with "confirmation bias", then from the perspective of scientific progress, the lawyer's way of thinking is not desirable.
But no, thinking like a lawyer, first of all, is legal thinking, which needs to analyze problems under the legal framework; Secondly, decision-making thinking, in the real world with limited cognition, tries to help you make a relatively favorable choice; Finally, it is the background of a philosophy based on epistemology, theory of human nature and social mechanism.
If the real scientist's way of thinking is to explore hard, then the real lawyer's way of thinking is to guide hard; One of us faces the nature and the other faces the society, but all roads lead to the same goal. When we understand this, we can have "sympathetic understanding" and "understanding sympathy" for each other, so as to better trust and support each other.
Thank you!