By Dr. Ken Broda Bahm:
It’s one of those sort of things where, once you know what it is, you’ll see it everywhere. The Dunning-Kruger effect is the research-proven tendency for those who aren’t very good at something to carry an inflated view of their own abilities, because they aren’t quite capable enough to understand their own incapacity (Dunning & Kruger, 1999). In other words, we don’t know what we don’t know, and incompetence protects us from an awareness of that incompetence. Where do we see that? Well, take the 2016 Republican Presidential Primaries, now shaping up to be a battle among an unprecedented flood of serious candidates.
With as many as 16 either declared or expected to declare their quest for the Republican nomination, the mob scene can be read either as the positive sign of a deep bench, or as the negative sign of a voter- and funder-base that is nowhere near consensus. A few are doubtlessly running for other reasons: selling books, increasing their speaker’s fees, or angling for a seat at the Fox pundit table. But others must be deeply mistaken about their true chances of winning. I won’t risk offense by singling out individual candidates, but for some, their potential unawareness of their own unelectability might make this the “Dunning-Kruger Primary.” But the effect is by no means unique to aspiring politicians. Consider attorneys on opposite sides in litigation: If both of them had a clear-eyed view of their chances at trial, then the case would probably settle. But when one side or both ‘don’t know what they don’t know’ about their case prospects, then that settlement is either delayed until the eve of trial, or it is denied. This post takes a look at the Dunning-Kruger effect, as well as how it can play out in litigation, affecting witnesses, jurors, adversaries, and ourselves.
What is the Dunning-Kruger Effect?
David Dunning and Justin Kruger of Cornell University Psychology Department looked at self-assessment of logical and grammatical skills as well as humor. Competent individuals were able to accurately assess their own relative ranking, but incompetent people consistently overestimated their’s. “Across four studies, the authors found that participants scoring in the bottom quartile on tests of humor, grammar, and logic, grossly overestimated their test performance and ability. Although test scores put them in the 12th percentile, they estimated themselves to be in the 62nd.” The team’s findings in the initial 1999 study, and in subsequent research, confirmed three general tendencies: Incompetent people will 1) Fail to recognize their own lack of skill or knowledge; 2) fail to recognize genuine skill or knowledge in others; and 3) fail to recognize the extremity of their inadequacy.
In a New York Times Opinionator piece, Errol Morris reports on an interview with David Dunning. The lead author explains that these findings mostly serve as a confirmation of a common-sense dilemma. “When you’re incompetent, the skills you need to produce a right answer are exactly the skills you need to recognize what a right answer is.” And, of course, that “incompetence” is situational. Rather than there being a set of “competent people” and a set of “incompetent people,” I think it is safe to say that every person is competent in some settings and circumstances, and incompetent in others. And — sad news — as much as we would like to trust in our own judgment to tell which is which, we cannot.
So I think there are a few ways that this thesis comes into play in and around the courtroom.
The Dunning-Kruger Juror
In too many courtrooms, our entire apparatus for cause challenges during jury selection is based on a self-diagnosis of bias. The “can you be fair?” question that either removes or rehabilitates the juror, is premised on the idea that potential jurors would accurately know whether they would be fair or not. The research on this point is very clear (we’re notoriously bad at understanding our own attitudes and carry a blind spot for bias in particular), yet legal practice too often requires parties to simply trust that self-assessment. The lesson of Dunning-Kruger is that you shouldn’t.
The Dunning-Kruger Witness
Witnesses are human. While many face the opposite of a Dunning-Kruger problem (believing that they’re less competent than they actually could be), others — think doctors, lawyers, and business executives — have learned to project confidence even when that confidence isn’t warranted by experience. Kings and queens in their own realms, they fail to appreciate that they’re novices when it comes to facing deposition or trial testimony. Helping them understand that, often by showing them how they can be tricked, can be a start.
The Dunning-Kruger Litigant
Cases fail to settle, or settle at an inappropriately late hour, often due to the parties’ failure to accurately assess their case. The attorneys, the research supports, can also be surprisingly poor predictors of their own case’s prospects. The advocate’s role in seeing the best in their own case, the “partisan distortion,” can serve as a barrier to settlement, as well as a barrier to the kinds of honest assessment that sets the stage for the best strategy in trial. Advocates’ best bet is to obtain as many neutral, or neutralish assessments as possible — including from mock jurors — in order to get a realistic grip on the case.
Beyond the parties in the courtroom, it is also safe to say that, to varying degrees, we are all living our lives within a Dunning-Kruger reality. Acknowledging that just comes down to one old-fashioned word: humility. It’s not a false modesty, but a realistic understanding that, on our own at least, we’re not always the best judges of our own competence.
______
Other Posts on Psychological Bias:
- Fight the “Flight from Facts”
- Expect Injustice from a “Just World” Belief System
- Beware the Boomerang of Normalized Bias
______
Kruger, Justin; Dunning, David (1999). “Unskilled and Unaware of It: How Difficulties in Recognizing One’s Own Incompetence Lead to Inflated Self-Assessments”. Journal of Personality and Social Psychology 77 (6): 1121–34. doi:10.1037/0022-3514.77.6.1121
Image Credit: Donkey Hotey, Flickr Creative Commons (text added)