Whenever I was trying too hard to get something wrong to turn right as a child, my grandfather used to tell me: “when you’re in a ditch, stop digging.” Although he was a rancher who never went to college – this pithy locution was consistent with what behavioral science has since taught us. We are all susceptible to falling prey to the cognitive bias of what is termed the Sunk Cost Fallacy. In innumerable ways, we tend to double down on an investment, relationship, exercise or endeavor whenever we have allocated effort, emotion, time or money to it. We do this regardless of whether current and ongoing “costs” will outweigh actual benefits. In doing so, we tend to ignore evidence and data points that indicate we should cut our proverbial bait. A sunk cost, is quite literally, that which has been incurred and is not susceptible to recovery. It is gone. And yet, our minds tend to treat those expenditures of dollars, time or effort as if they were recoverable. Acting from a more rational position, we would accept that the milk was spilled and we would take into account only future costs against future benefits.

Some posit that our persistent inability to avoid sunk cost fallacies stems from our seemingly inherent aversion to loss – the state of mind where losses are felt to a greater extent than gains. In other words, we feel the loss $1,000 more acutely than we do the gain of $1,000. From our loss aversion, we can often spend money on a number of forms of insurance that are irrational to purchase. We can also avoid, out of fear, taking certain risks that make objective sense. Because our human minds are highly supple and subject to influence, we can also fail to assess options through what is called the “decoy effect” – a notion related to loss aversion. When we pick between options behind Door #1 and Door #2, the addition of a demonstrably inferior option behind Door #3 compared to Door #1, that is also slightly inferior to Door #2, can have profound impact on our choice in ways that are not conscious to us. Advertising, marketing, pricing and product placement rely on decoys all the time. They are consciously deployed not to get us to choose the decoy, but to actually choose a certain desired target. Unconsciously, in dating or political markets, inadvertent decoys can “nudge” or frame our analytic assessments of the options. Ultimately, the decoys we face effect our choices and give us a means to rationalize decisions that are otherwise irrational.

As a divorce lawyer and divorced parent, I see these themes play out in myriad ways almost daily, in the uniquely charged and psychologically fraught arena of a relationship that is ending both legally and emotionally. Too often, issues arise because choices and their timing was or is off. Whether it is a potential client choosing an attorney initially or as replacement counsel, a spouse navigating the process of deciding whether to divorce (and/or what process to utilize), or a party managing the analysis of whether to remain in a deadlocked mediation or alternative dispute resolution – the sunk cost fallacy and related concepts inevitably arise. Lawyers are no less immune to the problem, unfortunately. Whether in litigation or mediation, the emotionally intelligent attorney must always reflect upon whether a particular strategy or tactic is being employed because it makes sense or because we are doubling down on a pet theory, claim or approach. Like many professionals, lawyers can suffer the curse of getting “high on our own supply.” It can be as challenging to unpack our own motivations, drives and desires in a case as it is for our clients to do so in their divorce. It is difficult to weigh hard decisions objectively from a place of reason, especially at a time when feelings are strong.

And, of course, the thing that makes us unique as a species is that we are not uber-rational automatons making decisions based on a balance sheet, algorithm or scientific formula. We love and sympathize, we feel regret, vengefulness and anger, and we are always and already instinctive and emotional beings with egos. We can never and should never attempt to exorcise that basic emotive core either as practitioners or participants. Instead, in matters large and small, and especially where divorce and marriage are involved, we should aim for more modest ends: namely, to challenge ourselves critically, personally and professionally, to look at the issues involved clearly, transparently and logically – with our heads no less than our hearts. And in doing so, we must be prepared and willing to let go, modify, or reconfigure our plans, communications, strategy or tactics when appropriate.

Brendan Hammer is a partner at Schiller, DuCanto & Fleck LLP. For more information or to reach Hammer, call 312-578-6129 or visit sdflaw.com