Beyond formal rules of evidence

Last year the Wall Street Journal wrote about problems with sleeping jurors. Brooklyn law professor I. Bennett Capers’ new article Evidence Without Rules, forthcoming in the Notre Dame Law Review, points out a much more pervasive issue: all the information jurors take in when they are awake. The rules of evidence strictly limit what jurors … Continue reading Beyond formal rules of evidence

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 … Continue reading Cognitive bias and listening

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 … Continue reading Lawyers and biased listening (part 3)

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. The halo effect Kahneman introduces Thinking, Fast and Slow with one … Continue reading Lawyers and biased listening (part 2)

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 … Continue reading Lawyers and biased listening (part 1)