Tag: Daniel Kahneman

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Why it’s so hard to be understood

Among Listen Like a Lawyer’s summer reading is Heidi Grant Halvorson’s No One Understands You and What To Do About It (Harvard Business Review Press 2015). Halvorson is a professor at Columbia Business School; here she is interviewed by CBS News about the book.

51nTzV8T70L._SX328_BO1,204,203,200_The book’s focus is on understanding how others perceive you, so that you may better manage how you are perceived. It’s not focused on the legal industry, but it discusses psychological dynamics that certainly apply in law offices as well as any organization. For lawyers, law students, and legal professionals, I would say this book is most useful for the following goals:

  • exploring the dynamics of interviewing process
  • delving beyond the surface in what is happening at work, particularly in work teams and with organizational clients
  • improving how one is perceived by a supervisor or work team
  • lightly exploring broader “psychology of leadership” concepts in the business world

Across situations, cognitive biases on all sides create distortions and disconnects in how someone thinks they are perceived and a perceiver’s actual impression. For the person communicating a message, the “transparency illusion” creates the overly optimistic expectation that others do in fact understand our intention. This illusion comes about in part from overconfidence about how clearly we communicate:

Your emotions are less obvious than you realize, and your face is less expressive too. Studies show that while very strong, basic emotionssurprise, fear, disgust, and angerare fairly easy to read, the more subtle emotions we experience on a daily basis are not.

On the receiving end, the well-known confirmation bias leads people to interpret information as confirming what they already think. These types of biases are semi-automatic and hard to combat, although more effortful, careful thinking in the “correction phase” can correct for distortions. (This is what Daniel Kahneman calls System 2.)

After laying this groundwork, Halvorson spends most of the book talking about the “lenses” that affect first impressions, before any intentional “corrections” can take place. The three key lenses are:

  • the trust lens

Trust is based on two factors—warmth and competencethat may sometimes be at odds with each other. More on that in a moment.

  • the power lens

To get the attention of a powerful person, it’s all about showing your “instrumentality.” As Halvorson writes, “It’s not about being niceit’s about being useful.”

  • the ego lens

The ego plays games with perception so that the perceiver comes out on top. Understanding ego dynamics can help a person avoid being seen as an ego threat. The least manipulative-sounding of these is focusing on how the speaker and perceiver are members of the same group (such as alums of the same school or members of the same profession).

These lenses are at work in difficult situations that lawyers and legal professionals face every day. A few that come to mind: clients who resist signing settlements that are strongly in their favor; supervising lawyers who want to control conversations with clients; legal professionals who gain a reputation—either for good or poor work—that seems difficult if not impossible to alter.

All of these lenses could help with the goal of listening, in that knowing about them can help a listener understand better what the other person is saying and why. Developing trust by cultivating warmth was where listening came into play explicitly. Some warmth tactics seem obvious: make eye contact, smile, and focus. But Halvorson cites studies that “people generally have no idea when they are not doing these things.” One practical theme of the book is just to ask friends and family about how you come across: do you make eye contact? How do they perceive you?

A potential difficulty for lawyers is the conflict—or at least perceived conflict—between what it takes to show warmth versus competence:

When people are trying to appear warm, they are agreeable, engage in flattery, make kind gestures, and encourage others to talk (i.e. they are good listeners). But when they want to appear competent, they do the opposite–speaking rather than listening, focusing the conversation on their own accomplishments and abilities, and challenging the opinions of others as a demonstration of their own expertise. In fact, both consciously and unconsciously, people tend to use this knowledge and play down their competence (i.e., play dumb) to appear warm, and vice versa.


Halvorson notes this conflict is a particular conundrum for “nontraditional women” who may experience particularly virulent sexism for perceived failure to adhere to stereotypes about women. This is an example where she nods to the deep and troubling excesses of cognitive biases, but this book is not the place to look for introspection or sensitive exploration of stereotypes and what to do about them.

Rather, it’s a pragmatic toolkit for the person who wants others to “get” them. For trying to resolve the warmth/competence conflict, Halvorson suggests the “moral” aspects of warmth do not conflict with competence. These aspects include being “courageous, fair, principled, responsible, honest, and loyal.” She notes that in a brief interview, it is a lot easier to show your sense of humor than that you are principled. But overall, perceived—and actual—trust is built by “being someone the perceiver can always count on to do the right thing.”

Halvorson also has chapters for difficult interactions such as those with “vigilant risk-mitigators” and “aloof, avoidant perceivers.” She closes with a relatively short treatment  seeing others more clearly (e.g., “take more time” and “consider evidence for and against” a hypothesis) and even seeing yourself more clearly. A common thread throughout the book is to ask friends, family and (if you dare) colleagues how you come across. If people consistently perceive you in ways you don’t intend, then reading, re-reading, and working on the ideas in this book may be in order.


















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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.


  • 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).


  • 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.


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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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 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.


  • 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.)


  • 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.


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.


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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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.