By Dr. Ken Broda Bahm:
Does knowing about hindsight reduce your susceptibility to it? Not as much as we would hope. It is especially an occupational hazard for social scientists and others who study attitudes and bias; we tend to think that our ability to identify and describe the bias makes us immune to its effects. Biases and other mental mistakes, we might implicitly believe, are reserved for careless thinkers, while we ourselves are able to see and avoid those pitfalls. The problem with that is that it is just another bias: a “meta-bias” as science writer Samuel McNerney recently described in Scientific American. It is a belief, a “bias within the bias,”McNerney writes, based on the belief “that everyone else is susceptible to thinking errors, but not you.” And in this case, “you” doesn’t just mean the scholars and students of social science, but includes anyone who considers themselves smart, careful, or reasonable…which is just about everyone.
If it isn’t the case that bias is just something experienced by other people, then that truth has some implications for those preparing for trial, and it means looking out not only for those you’re trying to persuade, but for yourselves as well. Looking at jurors, judges and arbitrators, witnesses, and the litigators themselves, this post considers how the meta-bias of perceived immunity to bias can skew our perceptions and limit our persuasive effectiveness.
Taking aim at popular decision making authors like Malcolm Gladwell, Daniel Kahneman, and Sheena Iyengar, McNerney cautions that the books can leave readers with a false conviction of being better decision makers. “The common sendoff, ‘now that you know about these biases, perhaps you’ll decide better,'” he notes, “instills a false confidence – it’s the trick we’re all failing to notice.” Even when we understand the rule, we continue to believe we’re the exception. Commenting on a world that is no stranger to litigation, for example, McNerney reminds us of construction projects that “often finish late and over budget because planners, after researching previous late and overbudget projects, confidently estimate that their undertaking will never suffer the same fate.”
Part of it is probably the Lake Wobegon effect of most of us feeling that we’re above average, and part of it is due to the nature of cognitive bias as a generally unconscious process. “We’re self-affirming spin doctors,” McNerney concludes, because we tend to trust our own cognitive processes. Even when we reflect on the existence and extent of bias, that isn’t a cure. There are several ways this reality should influence the landscape for legal persuasion.
Adapt to Jurors’ Bias Blind Spot
Jurors have a blind spot when it comes to their own biases. I’ve recently written on the folly of a voir dire system that relies on jurors’ own self-report of bias. Depending on the admission that “I can’t be fair,” presumes not just honesty, but also an unrealistic level of awareness of the stumbling blocks to one’s own decision making. And the public nature of group voir dire may even make it worse. As McNerney notes, a discussion of bias can actually make us overconfident and lead to an unwarranted faith in our own neutrality. For example, it is easy to imagine one potential juror seeing others removing themselves for cause and thinking, “Well, that isn’t me.” For that reason, it is a good idea when assessing bias to prefer questionnaire responses over verbal answers delivered in-court and to ask about beliefs and behaviors instead of any self-described inability to be fair.
Adapt to Judges’ and Arbitrators’ Bias Blind Spot
Even sophisticated litigators act as though a legal education conveys immunity to human psychology, and that can create a blind spot when it comes to adapting to arbitrators and judges. In our experience, when litigators have a legally-trained target audience, they relax their communication techniques a bit. They’re less likely to explain, to use metaphors and themes, to tell a story and to otherwise package an argument. Of course, it doesn’t make sense to address a lawyer in the same way you would address a plumber, but a failure to give sophisticated audiences the same time and attention you would give to a lay audience is a mistake. It’s a blind spot we impose on them, and they may or may not impose on themselves. The best recommendation in response is to make sure we are analyzing our own individual audience every time. A legally-trained target probably hasn’t graduated to settling the dispute on a rarefied plane or pure law. Instead, we are probably still dealing with messiness and subjectivities of human perception and influence.
Adapt to Witness’s Bias Blind Spot
Witnesses, particularly sophisticated ones, can sometimes assume that the challenges of testimony apply to someone else. Doctors, lawyers, CEOs — they might find it hard to believe, at least initially, that simply telling the truth on the record can be a difficult task. They might believe they’d never make the mistake of failing to focus, failing to listen, or taking it too personally. What they often don’t realize is they are subject to exactly the same pressures as other witnesses, and sometimes additional ones. As a result, the best practice is to do a complete dry run of the testimony. Instead of just talking about it, practice it. That is the only way many confident witnesses will understand that they’re susceptible to the same challenges as other witnesses.
Adapt to Your Own Bias Blind Spot
For many litigators, the most important blind spot to address is their own. And the most damaging way that blind spot usually emerges is in their assessment of the other side. Attorneys, and consultants as well, when they become part of the team, are apt to exaggerate the weaknesses and minimize the strengths of an opposing party. This contributes to the demonstrated tendency I’ve discussed before: Attorneys can be notoriously bad at predicting results in trial, and that tendency doesn’t improve with experience. Attorneys should not only be conscious of that bias, but should also take positive steps to guard against it when preparing for trial or settlement. For instance, when conducting a mock trial, it is a great practice to bring in an experienced attorney who is not otherwise part of your team in order to role-play the other side in the research. That fresh look can open your eyes to some unexpected strengths or approaches your adversary could apply.
Even as we can take some steps to minimize them, however, our biases and our blind spots toward those biases will always be with us. But perhaps it is a little like driving: We have a rearview mirror and a side mirror, but we still know that between the two of them, there is a blind spot. Even if we can’t see into it, our knowledge that it is there makes us a better driver. That same awareness should apply to our self-perception in persuasion. As McNerney notes, it comes down to whether we are mindful or not. “Mindfulness,” he says, “means pausing to observe that thinking errors exist – recognizing the bias within the bias.”
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Other Posts on Bias:
- Never Rely on Self-Diagnosis of Bias
- Take Anti-Lawsuit Attitudes With a Grain of Salt
- Subvert Stereotypes: Free the Attorney, the Expert, and the Juror
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Image from Mayhem advertisement, YouTube video posted by Allstate