“To err is human.” That is true whether you are a judge, a juror, a witness, a client, or a lawyer. The human mind can engage in any number of fallacies and systematic errors, many of which can be critical to the outcomes of your clients’ matters. To improve the outcomes of your clients’ cases, it is worth building an understanding of some of the common systematic errors the human brain encounters and developing strategies for dealing with them.
Common Errors in Thinking
A cognitive bias is a systematic error in judgment that anyone can make. The classic works that gave these ideas attention are by Daniel Kahneman, who won a Nobel Prize for his work on cognitive bias, and Amos Tversky. There are too many cognitive biases and irrational modes of thinking to cover here, but the following are a few you should know about:
Anchoring describes the tendency to rely too heavily on the first piece of information, otherwise known as the anchor information. For clients, anchoring can affect damage awards and settlement negotiations. Opening offers in settlement negotiations may anchor the evaluation of subsequent offers, which can influence the offer finally accepted.
In one study, people evaluating hypothetical settlement offers were more likely to accept a $12,000 offer when it followed a $2,000 initial offer than when it followed a $10,000 initial offer. Research also suggests that plaintiffs’ damage requests influence juries’ assessments of appropriate awards.
The Halo Effect
This is a cognitive bias where the overall impression of a person influences how one thinks about that person’s character. For example, if you perceive someone as beautiful, the halo effect may lead you to believe they have other positive character traits like kindness or intelligence. Lawyers try to use the halo effect to make their clients or themselves more likeable to judges and juries. “Halos are given or denied quickly, and the decision, either way, is difficult to change. So it’s best to do everything possible to present the client as likeable and sympathetic, as early as possible,” says Bob Knaier, a litigator who frequently writes and speaks about cognitive biases. In fact, he says, the science backs up the common adage that having a likeable client may be the most important part of a case.
Faulty Memory Formation
Our memories are often inaccurate. Even when people describe purported memories in great detail or with dramatic emotion, the memories can be false. (For a terrific summary of some of this research, see Elizabeth Loftus’s TED Talk or any of her papers, many of which relate to the law.) Faulty witness identifications, often caused by faulty memories, is the greatest contributing factor to the conviction of innocent people, accounting for over 70% of wrongful convictions. Faulty memories can influence clients, too. The client who approaches you with a detailed memory of a crime or tort must be carefully questioned so that you, the potential attorney, understand the full story.
How to Guard Against the Irrational Human Mind
Cognitive biases frequently influence judicial proceedings and settlement negotiations. The bad news is that there is not much we can do to prevent them entirely. The very nature of our brains is that they are subject irrational reasoning. So what can you do when an opponent is exploiting a decision-maker’s or your client’s cognitive biases?
Study Common Flaws in Human Reasoning
Your first line of defense is to educate yourself about cognitive biases and other fallacies of the human brain. If you become aware of some of the common biases, you will notice when rational thought is being manipulated. Here are some suggested resources:
- Daniel Kahneman’s Thinking, Fast and Slow
- Dan Ariely’s Predictably Irrational, Revised and Expanded Edition: The Hidden Forces That Shape Our Decisions
and other work
- Stephen Macknick and Susana Martinez-Conde’s Sleights of Mind: What the Neuroscience of Magic Reveals about Our Everyday Deceptions
- Carol Tavris and Elliot Aronson’s Mistakes Were Made (but Not by Me): Why We Justify Foolish Beliefs, Bad Decisions, and Hurtful Acts
- The scholarship of Professor Jeff Rachlinski
- The American Bar Association’s CLE program, Implicit Bias 101: What All Lawyers Need to Know.
Is Your Opponent’s Conduct Permitted?
Ethical and evidentiary rules may help you combat the exploitation of cognitive bias.
Every attorney has a duty not to mislead the judge or jury with any false statements. In California, the rule states, “It is the duty of an attorney . . . to employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with the truth, and never to mislead the judge or any judicial officer by an artifice or false statement of fact or law.” Knowing the ethical limitations in your jurisdiction can help you counter aggressive manipulation of biases.
Lawyers also are obligated not to falsify evidence or counsel a witness to testify falsely. Research by Elizabeth Loftus and others demonstrates that it is alarmingly easy to implant false memories. When working with clients or witnesses, lawyers should be aware of the prohibition against assisting, whether deliberately or not, a witness to testify falsely.
What To Do If the Conduct is Permissible
If your opponent’s conduct is ethical, an important response is to point out the logical flaws likely to arise. You may call an expert witness to explain the bias if it is particularly important. You may even want to explicitly discuss the particular bias at play. Explaining the concepts of anchoring or faulty memory to the client, judge, or jury might might allow them to consciously begin looking for–and overriding–their own illogical conclusions.
You may also be able to anticipate harmful cognitive biases so that you can lay groundwork to mitigate them. For example, if you anticipate a lowball settlement offer, you could try to prepare some defenses in advance. Knaier suggests trying to pre-anchor the client at a higher number so that the client will see the lowball offer for what it is. You could try explaining to the the client in advance that a lowball offer should be viewed as an insult. This, in turn, may enable your client to immediately view the source of the offer as untrustworthy and not to be taken seriously. Even with this preparation, Knaier suggests immediately reinforcing your pre-anchor and the insulting nature of the offer.
One common area of concern for defense counsel is that a plaintiff or prosecutor will anchor a jury to a high damage number or a long sentence. Knaier, who has represented both defendants and plaintiffs, observes that one strategy is to try to drop your anchor first. “Even seemingly random anchors work just as well as obvious ones.” Knaier said. “We don’t have to explicitly discuss how low the damages should be in this case. It’s likely sufficient to get a decision maker thinking about low numbers in general.”
You cannot prevent the fallible human mind from influencing the outcomes of your matters. But you can make sure you take steps to protect your clients from irrational outcomes.
Featured image: “ Man thinking concept with question marks close up ” from Shutterstock.