Lawyers and biased listening (part 3)

Perception and decision-making are vulnerable to cognitive biases. Decisions based on listening are at least as vulnerable to bias as other forms of decision-making, if not more so. Previous posts in this series (here and here) have outlined the vulnerability of listening to bias and have addressed some of the most common cognitive biases. This concluding post highlights two more biases, how listening might play a role in these biases, and what lawyers can do to minimize their effects.

Duluth Anchor

1. For anchoring bias, prepare for impact and try “thinking the opposite.

A powerful cognitive bias is the “anchoring effect.” Anchoring is best defined through illustration:

A lawyer and client go to mediation after discussing a number that they would be willing to pay to settle. In the first round of the mediation, the other side has the first opportunity to offer a number. Its opening demand is ridiculously high and nowhere near what the lawyer and client had discussed. What is everyone in the room to do with that very large number?

The lawyer and client may start to worry that this opening number will influence the mediation. And the research on cognitive bias confirms that the lawyer and client are right to worry. The “anchoring effect” will tend to pull negotiations toward the number that any side puts out as the first “anchor.” One of several excellent law review articles discussing the anchoring effect is Blinking on the Bench: How Judges Decide Cases by Chris Guthrie, Jeffrey Rachlinski, and Andrew Wistrich.

Hearing an anchor—rather than reading it in a written demand or brief—could exacerbate anchoring bias. The act of reading is often private; you can go in your office and close the door to read a demand letter and digest it. You can take time to marshal your own mental arguments against it, and the arguments of others as well In contrast in many situations where you hear the anchor, you are on the spot with a client and the other party. So the vulnerability to the anchoring bias may come not such from hearing the number but more from hearing the number in person, under pressure.

 SOLUTIONS

  • Be attuned to the physiological effects of “hearing the other side’s number.” Hearing the number may provoke body language in us as listeners that reveals our thought process. Knowing the power of the “anchor” could help lawyers to preemptively temper their own reactions. They may help clients do the same by preparing them to hear a large number and explaining strategies for dealing with the experience.
  • Fight an anchor with a dramatic scene: storm out of a negotiation to signal that the number on the table is unacceptable. This solution is straight out of Thinking, Fast and Slow. And it will sound familiar to any lawyer who has . . . stormed out of a negotiation to signal that the number on the table is unacceptable. (Part of the allure of the cognitive bias research is that it more fully explains and labels vulnerabilities and responses that we may have experienced without having a clear label.)
  • Purposefully brainstorm all arguments against the anchor. Kahneman points out that this strategy is helpful for managing one’s own thoughts about a potential anchor. It could also be used for persuading others such as mediators and judges that a number is not appropriate and should not be the anchor.

2. Reduce distractions and know your own level of expertise to reduce “availability bias.”

We are more vulnerable to certain biases when we are simultaneously engaging in another “effortful task,” according to Kahneman. This is the connection back to cognitive load: the busier our cognitive resources are, the more vulnerable we are to cognitive bias. Our overloaded critical-thinking skills take a break and let our intuitions do the work—along with our intuitions’ embedded biases.

The “availability bias” is one such cognitive bias. The concept is that our thought processes become skewed by how easy it is to recall certain information. If information is available, it seems more important and vivid and likely to happen again. That is why Kahneman and others complain about media coverage. If newspapers regularly run articles about lawyer misconduct, the availability of that information may influence the public to believe lawyer misconduct is more common than it really is.

Availability can distort thinking in more subtle ways, and it is exacerbated by cognitive load. For example, imagine a lawyer who managing emails at a baseline rate of 10 per hour. The lawyer receives one particularly concerning e-mail about a client’s document production. Putting that aside until there is more time to seek a solution, the lawyer begins conducting some light legal research on a statutory question. The first search returns 3,000 results based on a Google-like strategy requiring the lawyer to filter the results after the initial search. At that point, a colleague stops by to the lawyer’s office to ask, “Do you have a minute to talk about the Smith case?”

With this cognitive load as the context, there is a chance the lawyer’s estimate of success or failure on the Smith case will be affected by the availability bias. The lawyer’s ease of remembering cases like the Smith case may play a disproportionate role in the analysis. The lawyer’s most recent experience related in some way to the analysis in the Smith case may also distort the lawyer’s thinking.

In addition to flourishing under challenging cognitive conditions, the availability bias is greater in “knowledgeable novices,” rather then “true experts,” Kahneman found. Thus a lawyer with a handful of experiences in one area of law is likely to be more affected by how easy it is to think of experiences, as contrasted with an expert, whose depth of experience teaches otherwise. (Scholarship on the depth and reliability of expert intuition, such as  A Revised View of the Judicial Hunch by Professor Linda Berger of UNLV, is a hopeful counterpoint to the pessimistic tone of some cognitive-bias work.)

The availability bias may arise in the listening context in a few ways. The real-time flow of listening may not give a listener time to thoroughly process and critically examine some analytical questions. Distractions or cognitive load from the act of listening itself may exacerbate the bias. And talking about issues that are not in one’s true area of expertise could play a role as well. Biases could snowball as a lawyer who likes the client and is happy about a new matter (affect bias) offers a tentative answer and then seeks reasons to support it (confirmation bias), which are supplied in part by the ease of remembering one or two cases that are somewhat similar (availability bias).

SOLUTIONS

  • Monitor distractions and cognitive load, and preserve time for deeper focused analysis.
  • Distinguish your own areas of deep expertise from areas of moderate experience.
  • Develop strategies for handling questions that give yourself time and space for critical thinking before brainstorming a tentative answer. As Chris Bradley has written in the Lawyerist, it’s okay to say, “I don’t know.”
  • Remember that what you say to a client may trigger the client’s own availability bias. Thinking out loud with the client in the room could alter the client’s perception about the legal analysis in unintended ways.

Conclusion

Because listening involves perception and is so intertwined with thinking, it is vulnerable to cognitive bias. By understanding more about how cognitive biases affect their perceptions and their thinking, lawyers can take steps to counteract the effects of these biases. Reflecting on biases and taking steps to reduce them can help lawyers reach the elusive goal of being not just good, but gifted, at listening.

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