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No matter how rational and fair lawyers believe they are, just like all people, they have biases and blind spots that they are unaware of.
“We live in a new age of risk, uncertainty, change and a lot of stress resulting from all of that. And those stresses take a cognitive toll on people in general and on lawyers in particular,” said Larry Richard, founder and principal consultant at LawyerBrain LLC. “This cognitive toll, among other things, produces some unwitting biases, some cognitive mistakes that we are not even aware of. It’s very pervasive. It happens to all of us.”
During an American Bar Association webinar last month, legal experts discussed common cognitive biases, risks posed by the changing legal market and how to deal with these ethical issues.
Richard explained a theory that says every person has two mental operating systems working in parallel: the rational/analytical system and the intuitive/emotional system. He referred to the two systems as the rider (system 1) and the elephant (system 2).
“They both are operating, but the elephant, the emotional side of decision-making is much stronger, although much less much obvious,” he said. “Most of the time when we make a decision, we believe that it’s the rider — the rational part — that has made a decision. We refuse to even believe that we have been biased.”
“Really, emotions drive us much more than rationality even though we continue to believe that we make decisions on the basis of pure, detached, objective logic,” Richard added, concluding that this leads to unwitting bias.
He described four common cognitive biases:
- Self-serving bias — When people claim more responsibility for successes than failures and unwittingly tilt toward themselves. The ethics risk associated with this bias is that a lawyer might begin to take on work that he is not qualified to do, but the self-serving bias leads him to believe he can handle it.
- Commitment and consistency bias — When people simultaneously hold two conflicting cognitions and they bring their perceptions into alignment with their actions. Richard also used the phrase “in for a penny, in for a pound” to explain this bias. He said a person’s desire to be consistent can be exploited to get a bigger commitment after an initial small one. “These small little commitments that seem like nothing at the time make it psychologically much easier for you to be compelled later down the line to agree to much bigger commitments that you wouldn’t have agreed to if they were the first thing offered,” he said.
- Reciprocity bias — When people feel a sense of obligation after they receive something. In every society, there is a cultural imperative that favors reciprocity, Richard said. “You could easily be blinded by this bias and unwittingly agree to do something that you will later regret,” he said.
- Confirmation bias — When people have the tendency to only seek out information that conforms to their pre-existing viewpoints and ignore anything that goes against them. Just about any bad or inappropriate behavior can be psychologically justified when a lawyer wears the blinders of the confirmation bias, Richard said.
Besides these cognitive biases, lawyers are also facing ethical risks related to the changing legal market.
“Change is occurring not only in the world around us, but specifically in the legal market in ways that make it a much riskier place than it used to be,” said James W. Jones, a senior fellow for the Center for the Study of the Legal Profession at Georgetown University Law Center.
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