Lawyers and biased listening (part 1)

Malcolm Gladwell has suggested that gifted listening means listening without bias. If that is the case, then to be better listeners, lawyers should simply eliminate their biases, right?

Reducing bias turns out to be easy to say and very hard to do. This post explores some basics of how bias works, and introduces why decision-making within a listening context—as opposed to reading—may be more vulnerable to bias. Two future posts will address specific types of biases, how they may affect listening, and methods for reducing bias.

1.  Conscious bias is bad, of course, but it is just the tip of the cognitive iceberg.

Bias affects our thinking and our listening, even when we don’t choose to be biased or consciously feel biased. The psychological term for subconscious biases, or distortions in our thinking, is “cognitive bias.”

Exploring the operation of numerous ingrained, subconscious biases is at the heart of Nobel Prize-winner Daniel Kahneman’s work, which he collects in his wonderful and challenging book Thinking, Fast and Slow (public lecture here beginning at 6:00 minutes after introduction).

As Kahneman explains, an unexpectedly large portion of our mental activity is automatic and running outside of conscious thought. Our mental processes are vulnerable to a series of cognitive shortcuts that shape and at times distort how we perceive information and make decisions.

For example, our thinking is biased toward:

  • what we already believe;
  • what we can easily remember; and
  • what we “like” in a general sense.

These biases are difficult to combat because they are so deeply part of how we think. Thus the first key to being a less biased listener is to understand there is more to it than just generally declaring: “Bias is bad, so now I will listen openly and without bias.”

2.  Listening may be particularly vulnerable to cognitive bias.

Listening is deeply intertwined with thought. Therefore it is necessarily afflicted by bias as well. Indeed, bias may actually be more pronounced when a person’s information is coming in via listening. This is because listening can be so cognitively challenging.

The cognitive challenge of listening arises in part from the fact the listener is largely at the mercy of the speaker. You don’t get to choose how fast and when to get the information. To perceive and comprehend the information, you must direct your attention at the speaker, interpreting the message in context and in real time. If the speaker goes too fast, you can’t rewind; if the speaker goes too slow, you may become distracted and edgy. Psychological research does seem to support the claim that listening imposes a high cognitive load: “the transitory nature of auditory information may impose a heavy extraneous cognitive load that interferes with learning.” Jase Moussa-Inaty et al., Improving Listening Skills in English as a Foreign Language by Reading Rather than Listening: A Cognitive Load Perspective, 26 App. Cogn. Psych. 391, 392 (2011).

Listening—at least in person—also brings in a raft of information beyond the content. The speaker’s voice, body language, and physical appearance all send signals to the listener, sometimes competing with the actual content of the message. Social cues from other listeners may send signals as well, if the listener is one of a group.

Reading is a useful contrast: A reader can slow down, take a break, or write a reaction on the page. And the reader generally does see how the message affects other readers, at least not simultaneously while reading. (It is interesting to note that social reading such as “popular highlights” in e-books is spreading to legal research.)

Cognitive load matters so much because it makes decision-making more prone to bias. A task with high cognitive load is very taxing on the brain. As Kahneman’s work has proven, our critical-thinking skills can be powerful, but they tire easily under a cognitive load. When that happens, our intuition—walking hand-in-hand with our biases—takes over.

Therefore, if listening imposes a high cognitive load, then decision-making within the context of listening is vulnerable to cognitive biases.

Two more posts in this series on cognitive bias and listening will explore specific biases within the context of listening. They will try to suggest ways to combat cognitive bias, although even a genius such as Daniel Kahneman says that fighting cognitive bias is just very hard to do.

And a large caveat to this series: the main point here is not that listening is so vulnerable to bias that lawyers should avoid it whenever possible, opting instead to exchange letters and e-mails. Reading has its own vulnerabilities. Just as one example, if you read a counter-argument in a brief, all you will see are the words that have been crafted to make it look strong. Confidence (or lack thereof) and the client’s commitment to hold fast (or lack thereof) will not be perceptible. At a negotiation, mediation, or trial—or even in a short phone call—nonverbal cues will present a fuller picture.

Please do comment and share further with more information about cognitive bias and listening. Whether you’re a communications scholar, a psychologist, or a common-sense observer of the human condition, please share your thoughts and suggestions for how lawyers can listen in a less biased and therefore more effective way.

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