Cognitive bias and listening

Cognitive biases—such as believing information that confirms what you already believe—present a major challenge to the idea of the “rational actor.” Cognitive biases are being being studied in practically every field, including law. Bringing the research to a popular audience, Daniel Kahneman’s book Thinking, Fast and Slow, is a challenging but accessible read. And I was happy to learn that Kahneman’s Nobel-Prize winning partnership with Amos Tversky will be the subject of Michael Lewis’s next book.

Also providing an accessible take on cognitive bias, here’s a “Cognitive bias cheat sheet” by Buster Benson. In addition to the concise and helpful text, the visual “Codex” of cognitive biases at the bottom is a brilliant piece of visual storytelling. (This “cheat sheet” was shared by Adam Grant, Wharton professor and author of Originals plus a forthcoming book with Sheryl Sandburg. His Granted newsletter would be useful to anyone who puts thought into their communications.)

Listen Like a Lawyer has covered cognitive bias before, here and here and here. Reading Benson’s post reminded me of why it’s so important to continue revisiting and emphasizing this topic.

How can cognitive bias affect (or should it be infect) the listening process? I’ll quote a few of Benson’s summaries from the cheat sheet.

For example:

“Bizarre/funny/visually-striking/anthropomorphic things stick out more than non-bizarre/unfunny things.”

Have you ever talked to someone with food stuck between their teeth? It’s so bizarre and distracting you may not have been able to concentrate on what they were saying. That’s the example of a listening problem that came to my mind, anyway.


“We notice flaws in others more easily than flaws in ourselves.”

When listening to someone face to face, the flaw-finding intuition may kick on, whether the person has food between her teeth or not. This is actually even more true in writing. An interesting study found that people consistently give higher ratings to spoken material than if the exact same words are written down:

“[W]ritten passages lack critical paralinguistic cues that provide critical information about a speaker’s intelligence and thoughtfulness. Your voice is a tool that has been honed over the course of human evolution to communicate what’s on your mind to others. Without even thinking about it, you naturally flood your listener with cues to your thinking through subtle modulations in tone, pace, volume, and pitch. The listener, attuned to those modulations, naturally decodes these cues. That’s why if you claim to be passionate about your prospective job, for example, hearing your passion may be more convincing than reading your passion.”

So perhaps listening creates a bias toward the human connection in face-to-face communication. But what if some of this human connection is distorted in our memories?

“We edit and reinforce some memories after the fact.”

An important part of listening is remembering what has been said in order to form an appropriate response. This is a short-term memory function. In the longer term, as Benson writes, details can be “swapped” or even “injected” into a memory. Remembering what you were thinking during a conversation might in some ways overshadow your memory of the conversation itself.

Such distortions can cause other communication problems:

“We think we know what others are thinking.”

Benson writes that we may be “modeling their mind after our own” in how we think about what they are thinking. This presents an impediment to properly gauging another person’s level of understanding.

Another issue:

“We find stories and patterns even in sparse data.”

Legal listeners may make the most out of the data available such as the paralinguistic cues indicating the speaker’s emotions. Or they may turn their mind inward, hearing a few facts and then instantly connect this client’s situation to a past experience or archetypal story like David v. Goliath.

Some of this gap-filling may happen partly because people think faster than others can talk. This creates the well-known “thought-speech differential”. The excess brain capacity to think, compared with the relatively slow rate of speech, creates mental opportunities to spin stories around the “sparse data.”

And could this differential cause problems? Yes, in several ways.

One issue is a simple intolerance for listening, especially when speakers aren’t perceived to be concise. We’ve all felt that frustration as listeners:

Just get to the point!  

And that frustration can lead to simple “self-help solutions” such as checking one’s phone for more pressing info. Benson writes about how many cognitive biases come from the fundamental human need to act fast. Listening is slower than thought, so it may simply stand in conflict with the brain’s drive to take in information quickly and make a decision. Our collective acclimation to faster and faster pace of receiving information has been written about elsewhere in wonderful sources such as Nicholas Carr’s The Shallows and the work of Sherry Turkle. That topic is too broad for this one post. But it’s connected to the preference for texting over seemingly inefficient phone conversations and voicemails.

The drive to make a decision quickly can also lead the mind to rely on cognitive biases for gap-filling information, sometimes in troubling ways:

“We fill in characteristics from stereotypes, generalities, and prior histories whenever there are new specific instances or gaps in information. “

To put it in even more troubling terms, again quoting Benson:

“We imagine things and people we’re familiar with or fond of as better than things and people we aren’t familiar with or fond of.”

Legal professionals should be able to work with people from different backgrounds using an open, unbiased approach. Cultural biases can infect the communication processes with numerous distortions, omissions, and other bad effects. As an example of legal work being done to combat those problems, here’s Professor Susan Bryant’s foundational article on the “habits” that build cultural competence. Professor Andrea Curcio has some excellent work in this area as well such as here and here. There are many, many others. On a positive note, Curcio’s work suggests that simply taking a carefully crafted survey can itself have beneficial effects on survey participants. She cites studies involving medical students in the U.S. and U.K. with similar outcomes.

More generally, with all of these cognitive biases around everywhere—just take a look again at that visual Codex of Cognitive Biases to understand how many there are—can anything be done to mitigate their pervasive effects?  Benson suggests studying a simple four-part outline of the problems causing cognitive biases as well as four corresponding consequences of unmitigated cognitive bias. The idea is that by keeping these ideas fresh in your brain, perhaps the “availability bias” privileging this countervailing information will cross over into other assessments our brains are constantly working on.

The outro

Still thinking about Prince . . .

Like so many, I downloaded some Prince and revisited the music of my youth. Purple Rain, of course. And in listening to it, I did something that I may never have done in the 80s: listening to all of Purple Rain, all 8:42 of it. That includes the final atmospheric two minutes of the song. There’s no more chorus, no big guitar, no more purple rain. There’s some trilling piano, a few of Prince’s vocalizations, and some echoing violins.  A friend who’s a musical expert told me that section has a name. It’s an “outro.”

Flickr/bnilsen/Purple Rain 3/CC by SA-2.0

“Outro” is a music term for “the end of the road for your song.” It can be an instrumental solo, repeated chorus, or something else like that. There’s no real formula, but I think the most accurate description of Purple Rain’s outro is a meditation in strings (i.e. violins).

As a young person I honestly thought the end of the song was boring. It seemed like fluff after the huge vocals and massive guitars. The average song length has been on the rise since the 70s, leveling off in the 1990s at about 4 minutes. In fact the radio version of Purple Rain was shortened to 4:05, but I always listened to the album (on tape). Maybe my teenage attention span maxed out at 4 minutes. I would rewind the tape back to the beginning, craving the organ chord and unforgettable opening of the album:

“Dearly beloved, we are gathered here today to get through this thing called life . . .”

That did not feel like fluff.

Sadly now, every moment of Prince’s work seems more precious. Spending that extra two minutes finishing out the outro is a way to honor him. It’s a way of appreciating what the artist—in this case, The Artist—was doing. The whole song, including the outro, is what he was really trying to say.

Beyond that, this outro reminded me of a broader theme with communication. Conciseness is highly valued, both in writing and speaking. On this blog I sometimes pull data and anecdotes from a book called Brief: Make a Bigger Impact by Saying Less. One of its arguments for brevity is the thought-speech gap: listeners can process information at a rate of 600 more words per minute than speakers can actually speak. This gap creates “spare mental bandwidth” that can lead to distraction, boredom, and judgment. Conversely, speaking in a concise, message-heavy way maximizes efficiency and attentiveness.

Brevity is a virtue in pop music as well. A tight 3- or 4-minute pop song reduces the likelihood the listener will flip or click or tap to another song. But Prince (a) was too good to be limited to a formula and (b) probably didn’t care anyway. Those who are attentive enough to hang in through the whole 8:42 get a gift—the gift of a gentle orchestral landing to this booming ballad. Everyone else misses it.

Likewise with conversations, the informal, meandering end of a conversation—when the official conversation itself is over—can be extremely valuable. The “outro” of a meeting is a place for checking in and observing nonverbal communication to understand the real reaction. People may be creating their own outro. Are they still repeating the same chorus over and over? Are they calming down and echoing what was said? Using friendly, open body language can encourage people to tell you things they were thinking about the whole time but just not comfortable saying. Checking one’s phone at the earliest reasonably polite opportunity misses the chance to learn more from the conversational “outro.”

Connections between music and conversation are pretty fascinating; see this post on communications theorists who transcribe conversations with music notation. But ultimately my point here is a simple one about music appreciation. Purple Rain is a great song, and I recommend listening to it again. All of it.

What do we hear when we hear vocal fry?

Tennessee professor Michael Higdon has followed up his 2009 Kansas Law Review piece on nonverbal persuasion with a thoughtful new essay,   “Oral Advocacy and Vocal Fry: The Unseemly, Sexist Side of Nonverbal Persuasion.”

If you’re not familiar with vocal fry, check out this MSNBC video at minute 3:30 for an example drawn from law practice (“Um, I don’t really think that evidence is sufficient.”) The video briefly explores a few themes expanded upon in much greater depth in Professor Higdon’s piece: Is the problem with women using vocal patterns that diminish their appearance of competence? Or is the problem with managers and society scrutinizing and judging women harshly yet again? Higdon quotes Amanda Hess describing the joint perils of vocal fry and “upspeak”:

So we’re wrong when we raise our voices, and we’re wrong when we lower them.

Higdon takes this debate into the realm of law and the individual choices women law students and lawyers must make. He also places vocal fry into a larger framework of nonverbal persuasion including body language such as gestures, the use of space, the relationship to the speaking environment as well as any props or other instruments, physical appearance, the use of time, and other factors. “Vocalics” or what the speaker sounds like is the factor raising these questions.

Higdon and many others eschew the easy answer that women should stop vocal fry simply because it hurts others’ perception of them.

What is a female attorney to do? Does she scrupulously monitor and adjust her professional nonverbal behavior to match those qualities that social science tells her tend to be perceived more positively? Or does she ignore this research and what it might mean within her own career and instead follow her own preferences on how to present herself? Clearly, this essay cannot definitively answer that question—it is instead a personal question that must be answered by each person individually.

He points out that not all critiques of nonverbal behaviors are complicated: for example, lawyers should avoid pointing at their audience, especially when that audience consists of judges sitting as a court of law. But preferences about some nonverbal behaviors such as women’s vocal inflections raise harder questions of underlying bias. Higdon’s discussion reminded me of the discussion—how can this discussion still be happening?—whether women make a mistake by going to court in pants suits rather than skirts.

[W]hat one gains in the short term by presenting herself as in line with societal expectations can create problems in the long term by making it that much easier for everyone to ignore the sexism motivating those preferences.

Some would say the women lawyer’s identity shouldn’t matter. If she’s going to court where a judge has previously expressed disdain for women in pants suits and if she takes seriously her role as an advocate for the client, then she should grin and wear it (the skirt, that is). Likewise if society is saying vocal fry makes a woman sound incompetent and if a woman lawyer wants to represent clients effectively in said society, then stop with the vocal fry. As Higdon acknowledges, failure to comply can be damaging.

But he urges a deeper analysis that makes room for identity even as it contemplates audience:

[T]he preferences people have for certain behaviors are almost always motivated by something other than the behavior itself. Typically there is a connection in the audience member’s mind between that discrete behavior and something else—and it is the “something else” that requires more inquiry.

I recommend this article, especially as a companion to Higdon’s foundational article on nonverbal persuasion, previously reviewed here on the blog.

Habits of cross-cultural lawyering

What if a lawyer from a modest financial background is working with relatively wealthy clients for the first time? What if a commercial litigator at a large firm takes on a pro bono project interviewing kids in juvenile detention? What if a young female lawyer is representing an international client with a serious legal problem and a seriously sexist attitude?

These are just a few examples drawn from my own experience. The common thread is cross-cultural competence. One might also call it cross-cultural literacy or cultural consciousness or simply cross-cultural lawyering. Whatever you call it, it’s a really big topic.

The culturally competent lawyer is one who can work—effectively—with clients, co-workers, judges, and people in general from a wide variety of ethnic and cultural backgrounds.

There’s no such thing as “culture-neutral” lawyering; debunking that claim is a beginning point in the landmark 2001 publication of Susan Bryant’s Five Habits: Building Cross-Cultural Competence in Lawyers. Differences in cultural backgrounds affect many aspects of the lawyer’s role, even as seemingly simple a lawyer’s request to a client that the client ask for clarification if the client doesn’t understand something or the lawyer is not being clear. Those two different ways of phrasing the request may generate different reactions—or what seems like non-cooperation—depending on the client’s background. Cultural competence connects with core professionalism requirements such as competence and communications, as this Oregon Bar article points out. Lack of cultural competence could also cost a firm in terms of employee and client retention.

In this post, I will briefly summarize the “five habits” framework developed by Bryant and Peters. (They refer to teaching law students, so that is the terminology used below, but obviously the concepts are meant to apply far beyond the walls of any law school class.) At various times this year, the blog will highlight related articles, ideas, and practical recommendations.

Habits One and Two

The beginning of the five habits requires thinking about similarities and differences with clients—not just what those similarities and differences are, but how the process of thinking about them affects the relationship and the law student’s effectiveness. How can a law student find similarities with a client from a very different background? What if a law student identifies as so similar to a client that she misses other important differences?

More broadly for analyzing and managing the client’s case, how do the similarities and differences affect interactions between the client, law student, and judge (or other decision-maker)? How strong is the client’s legal claim, and can the law student shape the legal argument to encompass more of the client’s claim and situation?

Habit Three

When a law student and client come from different backgrounds, the student may miss what the client is intending to communicate. And nothing hurts communication more than the illusion it has taken place (said George Bernard Shaw). The student may believe the interaction is productive when in fact the student is negatively judging the client. Maybe the client even senses that judgment and withholds information accordingly. Maybe the lawyer later finds out that the client has in fact not shared all the relevant information.

Part of the cure for these problems is “parallel universe” thinking in which the student looks for multiple interpretations of the facts. The point is to reach a deeper, less judgmental understanding of the client’s perspective and actions.

Habit Four

Communication is a huge part of cross-cultural competence. Thus, students should think about “pitfalls and red flags.” One pitfall is the problem of “scripts.” Scripts are habitual templates lawyers may use in repeated situations. Rather than using scripts, students are encouraged to bring out the client’s own story with attentive listening and to gauge the client’s own sense of engagement and understanding. (Here I will note the connection to Ken Grady’s exploration of how lawyers are prone to rely on mental shortcuts just as much as non-lawyers.)

Red flags would include signs that real communication is actually not taking place, such as a client who tries to dominate a conversation or another one who withdraws and takes no notes. Law students have to overcome their sensitivity and move past communication challenges; they need a “broad repertoire” of communication skills for gauging clients’ understanding.

Habit Five

The final habit is the most difficult, which is why Bryant and Peters place it last. It asks students to confront their own biases and stereotypes, an uncomfortable process to say the least. To develop this habit, students can “create settings in which bias and stereotype are less likely to govern.” Because people are more affected with bias when they are under stress, Bryant and Peters encourage law professors and students to proactively address stress. Professors can “promote reflection and change of perspectives with a goal of eliminating bias.”

Communication skills are critical

Communication skills run throughout the habits. For example, “remaining present with the individual client is an essential part of cross-cultural competence.” More specifically, good cross-cultural lawyers have to be good listeners:

Intercultural communication skills include deep listening skills and capacities to focus on content rather than style, the ability to read verbal and non-verbal behavior, and the ability to adapt conversation management behaviors and style. These are communication skills that lawyers need in every situation and more so in cross-cultural situations.

The original Five Habits paper is now 15 years old. Bryant and Peters have collected a wealth of materials here at LegalED, including resources on listening.  The discussion of cross-cultural lawyering has continued vigorously, with a recent burst of work on implicit bias.

In this blog’s continuing exploration of additional articles, ideas, and recommendations, the goal will be what Ascanio Piomelli wrote in 2006, surveying the field of teaching about cross-cultural lawyering:

[C]ross-cultural materials are at their best . . . when they spark generous curiosity, nurture engaged, nonjudgmental inquiry, and foster real connection with others.