Awareness of cognitive bias can improve advocacy

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I have been thinking about the ways in which cognitive biases impact diversity within our profession for a while. Recently, however, I’ve started thinking about the ways cognitive biases can also help me become a better advocate. Let me explain.

In 2016, my New Year’s resolution was to create a compelling and energizing CLE about implicit bias (and its impact on our profession) and share it with anyone who would listen. As a part of this project, I did a lot of reading about the multitude of ways in which our brains play tricks on us. For example, in one famous study, researchers asked law firm partners to read and evaluate a memo. The memo contained 22 errors (including minor spelling/grammar errors, technical writing errors, factual errors, and analytical errors).

The researchers told half of the law partners that the memo was written by an African-American associate named Thomas Meyer — a third-year associate who attended NYU law school. And the researchers told the other half of the law partners that the memo was written by a Caucasian associate named Thomas Meyer — a third-year associate who attended NYU law school. The exact same memo averaged a 3.2/5.0 rating when partners believed the African-American Thomas Meyer had written the memo, and 4.1/5.0 when reviewers believed the Caucasian Thomas Meyer had written it.

In other words, it turns out that based upon the messages we have been fed many of us perceive quality differently based upon our expectations as to what a “good” lawyer looks like. Pretty depressing stuff, eh?

This research is fascinating, and it has forced me to rethink the ways in which I can change my own actions to limit the impact of my own biases.

But this research has also opened my eyes to the ways in which cognitive biases impact decision-making more generally. And more specifically, this new knowledge is helping me become a better legal advocate.

Daniel Kahneman’s “Thinking Fast and Slow” served as my entrée into the world of cognitive biases. Kahneman won the Nobel Prize in economics in 2002, despite the fact that he is a psychologist, not an economist. In a series of studies, Kahneman was able to challenge the assumption of human rationality that served as the foundation of modern economic theory.

“Thinking Fast and Slow” explains his research. And in the book, Kahneman asks us to consider a character named Linda:

Linda is 31 years old, single, outspoken, and very bright. She majored in philosophy. As a student, she was deeply concerned with issues of discrimination and social justice, and also participated in anti-nuclear demonstrations.

After hearing this information, Kahneman asks us to consider which is more probable — that Linda is a bank teller OR that Linda is a bank teller and active in the feminist movement.

Most people conclude that — based on the information provided — Linda is more likely to be a bank teller and active in the feminist movement. But here’s the rub. It is always more probable that someone is one thing than two things. Put another way, the probability of two events occurring in conjunction is always less than or equal to the probability of either one occurring alone.

So why do we mess up? We mess up because we like stories. And based on the facts provided, we fill in facts that we are not given to fit the story.

How can this bias help us in the law? Lawyers have always known that storytelling is important, but Kahneman reminds us just how crucial it can be. We can aim to tell stories where the missing facts seem obvious to the reader because they seem more representative of the narrative (even though mathematically less likely). And this lesson can improve both our written and oral advocacy.

How else can learning about cognitive biases help us become better advocates?

• The Bandwagon Effect is a psychological phenomenon in which people adopt beliefs and ideas, in part, because they have been adopted by others. We are hoping a judge hops on our bandwagon every time we cite persuasive, but not compelling, authority. And we are hoping to show the power of our bandwagon every time we provide a string citation. Learning about this bias has reminded me of the import of citing trends, developments, and nonpersuasive authority in my advocacy.
• The Anchoring Effect describes the human tendency to rely too heavily on the first piece of information offered (the “anchor”) when making decisions. In one study, German judges (with more than 15 years’ experience) read a description of a shoplifting case and then rolled a loaded dice (either resulting in a 3 or a 9). As soon as the dice came to a stop, the judges were asked about sentencing. On average judges who rolled a 9 said they would sentence the subject to 8 months; those who rolled a 3 said they would sentence the subject to 5 months. What does this mean for litigation? We need to think carefully about how numbers (including damage demands and sentencing recommendations) are used before the judge and jury.
• Confirmation Bias describes the human tendency to cherry-pick information that confirms our existing beliefs or ideas. How can we used this fact to convince? I aim for my written advocacy to build on foundational principles (with which everyone would agree). I try not to start with conclusions (against which some could react badly) and, instead, tell a story that will lead the reader to their own conclusions.

The more we learn about decision-making, the more we realize that — as much as we try — none of us is capable of making rational decisions in every instance. As advocates, there is a question as to how much of this reality we can and should exploit. I believe I have an ethical imperative to fight against cognitive biases when they disproportionality impact people of color or women. But what about when cognitive biases can help us tell a more compelling story?

These are the questions that will impact our profession over the next 20 years. And I want to make sure that I stay on top of the research so that — at the very least — I can ensure that my opposing counsel isn’t exploiting any of these biases at my client’s expense.

Sybil Dunlop is a partner at Greene Espel. Her practice focuses on representing individuals, corporations and public-sector entities in business and governmental defense litigation. She can be reached at [email protected].