Lawyers and biased listening (part 2)

Reducing bias in listening is important yet difficult, as discussed in the first post on listening and cognitive bias. This post explores some of the most well-known cognitive biases and how they may impact lawyers’ listening, with some suggested solutions from the cognitive-bias literature.

Halo

The halo effect

Kahneman introduces Thinking, Fast and Slow with one of the most obvious cognitive biases:

“When the handsome and confident speaker bounds onto the stage, . . . you can anticipate that the audience will judge his comments more favorably than he deserves. The availability of a diagnostic label for this bias—the halo effect—makes it easier to anticipate, recognize, and understand.”

Kahneman’s example focuses on physical attractiveness. But the halo effect is not limited to attractive speakers.  The halo effect is in essence “[t]he tendency to like (or dislike) everything about a person—including things you have not observed.”

A halo effect can arise out of any trait. Based on one single attribute, whatever it may be, the halo effect biases the audience’s thinking toward everything else. As Kahneman points out, “the halo effect increases the weight of first impressions, sometimes to the point that subsequent information is mostly wasted” (emphasis added).

Lawyers trying to be unbiased listeners should guard vigilantly against the halo effect. One of its particular dangers for lawyers is “suppressed ambiguity.” Once the halo effect takes over, ambiguous information will be interpreted consistently with the halo effect’s bias.

Solutions?

  • Having a label for the halo effect goes a long way toward combatting it, Kahneman points out. So try to label what is happening. When you can recognize that your thinking is being affected by a bias such as appearance or shared affinity for a school or team or musical style, you can trigger your more analytical thought process to start “thinking slow.”
  • Manage how you gather information, to the extent possible. Information sequence can introduce a halo effect. Lawyers who filter cases with intake specialists are doing this, to an extent: studying a case on paper can help combat halo effects such as potential clients who present well but have weak cases and clients who are rough around the edges but have strong cases. The structure of an intake form itself can help combat the halo effect by forcing certain questions. As Kahneman recognizes, following a checklist is one way to battle the influence of bias.

Confirmation bias

The halo effect is closely related to confirmation bias: “our tendency, when receiving new information, to process it in a way that it fits our pre-existing narrative about a situation or problem.” Basically the confirmation bias distorts our thinking about the world to guide it toward the way we already think about the world.

Confirmation bias is discouraging to think about both politically and professionally. Confirmation bias “shuts down creativity” and shows up as “arrogance” and “bad listening.” For lawyers, a classic case of confirmation bias is not being able to recognize or accept that a formerly high-value case may not, after discovery, be as fantastic as it first seemed.

Confirmation bias also operates in small-scale contexts such as the flow of a conversation. When someone speaks up in a conversation with comments leaning one way or the other, that person’s confirmation bias may then shape the way she hears the rest of the conversation.

When you nod or cross your arms in response to information, your own positive or negative body language could affect how you continue to process the flow of information. As social psychologist Amy Cuddy has written and spoken about, body language can change not only others’ perception of your power status but also your own internal hormonal balance and behavior. (Others have noted the link between nonverbal behavior and confirmation bias as well, such as this Forbes article.)

Solutions?

  • Try not to let a large, complex decision become overly influenced by an initial, small decision in that area. One good solution is to seek out input from a group, where the members of the group have each assessed the same question independently. For example in valuing a case, asking a colleague to look at the facts and value it (without knowing your own assessment) would help check your work for confirmation bias.
  • Slowing down enough to consider the analysis while asking questions from different angles can help combat confirmation bias, as suggested here. Lawyers have the benefit of analytical patterns such as “What would the other side say?” and “How would a judge look at this?” But at the same time, these patterns of thinking could create a confirmation bias toward lawyerly pessimism. Examining the question from different angles also means asking whether an intuitive “no, this won’t work” could be turned into a “win-win.”
  • In conversations lawyers may want to hold themselves back from commenting too soon on a matter. Whether an initial comment is a hesitant “here’s why it won’t work” or an enthusiastic “yes!”, once the listener has chimed in with an opinion, confirmation bias will make it hard for the listener to interpret the rest of the conversation in an unbiased fashion.
  • Lawyers should also be vigilant about their own strategy for managing conversations. Taking over a conversation may be necessary to keep it relevant and efficient. But taking over a conversation also implicates the confirmation bias of the one managing the conversation. Information that doesn’t fit the dominant narrative may be suppressed.

Emotional biases

Certain cognitive biases have a stronger impact on those who are in a good mood. And it is stronger for people who are powerful or who at least feel powerful. The larger idea, as Kahneman writes, is that “[a] good mood is a signal that things are generally going well, the environment is safe, and it is all right to let one’s guard down.” When that happens, our critical-thinking skills relax somewhat, and the automatic aspects of our thought processes run the show.

These considerations are important in a number of listening situations. Having a face-to-face conversation with a trusted and longtime client may provoke positive mood and possibly also a feeling of power. The positive mood and feelings of power could conceivably affect the lawyer’s cognitive processes.

For example, when fielding the client’s questions about the probability of success in a future matter, the lawyer may rely more heavily on the ease of remembering other recent victories. The lawyer may also want to continue to appear highly effective, and thus may answer questions more quickly and a bit less cautiously.

Likewise, lawyers conducting fact investigations might consider whether they feel positively toward the witnesses they are interviewing. It can be hard to detect that a very likeable person is not being forthcoming. The “affect” bias—having positive feelings of liking toward something—can impact decision-making.

Solutions?

Although it is true that pessimistic thinking is less vulnerable to bias, the solution for lawyers is not to cultivate bad moods and negative thinking. The solutions to affect bias run along the same lines as suggested above:

  • Being aware of the affect bias can help lawyers use their people skills for friendly conversations, of course, without abandoning their critical thinking skills, of course.
  • Using tools such as checklists can help insulate perceptions and decision-making from bias.
  • Delaying answers to questions raised during a friendly conversation can preserve time for slow, careful thinking.

Conclusion

The biases discussed above (the halo effect, confirmation bias, and affect bias) deal with perception and liking, such as liking your own beliefs and the people you’re dealing with. A third and final post in this series will address some additional cognitive biases that can impact lawyers’ analysis and listening:

  • the “anchoring effect,” which occurs when someone offers up the first number in a negotiation, thus anchoring further talks around that number; and
  • the “availability bias,” which distorts our thinking based on the availability of information in our working memory.

As always, please share your thoughts in the comment box or through social media or e-mail. How have you seen cognitive biases affecting the work of lawyers in their role of listeners or otherwise? How have you confronted the impact of these biases?

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