In August 2011, an article was published in the New York Times about “decision fatigue.”  John Tierney, a frequent columnist for the Times, describes a series of studies examining the effects of making multiple decisions over a period of time and experiencing what has been coined “ego depletion” whereby as human beings we have finite amount of energy with which to make thoughtful decisions.  This energy gradually depletes as decisions accumulate until the “decider” finally finds themself making snap decisions with considerably less consideration than they had before. Basically, it is possible that a person finally reaches a point where they will make a decision less on their wants and needs and more just to have the question out of the way and to move on. 

As a series of experiments described my Mr. Teirney indicate, people become indecisive because they fear losing options.  The anecdotes provided in the piece demonstrate how mentally fatigued people are less likely to make trade-offs and will, instead, seek to preserve the status quo or eliminate the nuance the decision (i.e. compromise or make trade-offs) and make the decision one dimensional.  The status quo is not always the best decision for the situation, but it has familiarity in its favor.

The article is fascinating for a lawyer because our clients have undoubtedly been through a “Rubicon”-like scenario as described by the scientists Mr. Tierney’s interviews.  After repeated analysis, decision-after-decision, negotiation, explanations, more decision-making, it is not surprising that a client at 4:30 p.m. is more amenable to settlement, than he was at 8:30 a.m.  They can feel worn down.  That is not to say that the decisions are wrong, but the science indicates that the decision-making has changed as the mental fatigue increased.  Lawyers are not immune to this physiological effect, either.

There is no real “cure” to ego depletion, merely a few things to mitigate its effect. Ultimately, when a client is faced with an important decision late in the day, the relationship between the attorney and the client will be a critical element to ensuring the “right” choice is made and not just “a” choice is made.