A friend sent me a recent blog post from the “Legal Skills Prof Blog” (who knew?) that she thought might be of interest to me in light of my current endeavor at blogging. The post briefly discusses the “negativity bias,” one of the many cognitive biases that can result from our unconscious use of heuristics. It reminded me of how significant these mental shortcuts are to us.
At its simplest, the negativity bias causes us to feel the sting of a negative experience or loss to a much greater degree than a positive. (Think of the bad customer service experience that never seems to diminish, while a good one, while nice at the time, quickly fades into oblivion.)
The author then goes on to ask whether or not this might provide a lesson in terms of pitching the best legal arguments. I have certainly seen the “parade of horribles” work to encourage parties in mediation to find a solution rather than continue the pain of the dispute at hand. I think the greater lesson is that as lawyers, we should be aware of the use of heuristics and the cognitive biases that may result from the unknowing misapplication of heuristics by an individual in evaluating information and then using this information to make a decision.
Of course, using biases to be most persuasive is important. Yet there is another side to it and that is to counsel our clients in objectively evaluating information. After all, many of us make a living by helping clients in making decisions. In fact, one of my survey respondents actually noted that in terms of top 5 skills, a lawyer should ALWAYS have a solution or recommendation. He goes on to say that our clients are paying us way too much money to simply tell them what their problems are and that we should be able to provide a variety of solutions and explain clearly which is best and why.
It is our role to challenge our clients and to make them aware of the dangers of cognitive biases as they skew information and may lead to unintended consequences. If the negativity bias may cause someone to avoid, might the role of the counselor be to test the information and to uncover the possible bias, explain its effect to our client and then seek to mitigate its negative effect and help them to make the best decision with the utmost clarity? I think it is.
Three common heuristics can result in a variety of biases and are worthy of at least a brief discussion. First is the “availability bias” (quantitative recall) which is the tendency to assess the frequency, probability or likely cause of an event based on the availability of other instances or occurrences in our memory. This can be quite legitimate and even helpful since events of greater frequency are more quickly revealed. It is problematic, however, when other factors unrelated to the objective frequency affect our sense of availability (negative emotions make things seem more available as noted above). Representativeness (qualitative recall) is another and addresses the tendency to assess the likelihood of an event’s occurrence based on the qualitative similarity of the event to our mental catalog of similar occurrences. Again, this can be a good first-cut analysis (for example, a new product launch may be evaluated based on similarities to prior, similar product launches) but it can be problematic if we rely on this information when other data may be available and helpful. Finally, with anchoring and adjustment, there is the tendency to give disproportionate weight to first information received, anchoring subsequent thoughts and judgments (this might be a benign comment from someone or it may be information you read in an article or it could be data from past events). The challenge of course is what happens to our decision-making where there is insufficient assessment of whether the anchor point is the appropriate starting point.
Lawyers are not trained to be cognitive scientists, yet from the feedback about what makes us most effective, being an effective communicator is at the top of the list and our ability to accurately evaluate information and our skill in counseling our clients as we help them meet their interests requires that we are aware of the manner in which the human brain processes information and the cognitive biases that can get in the way. Awareness of heuristics can manage their effect and keep these biases from becoming hardwired into our thinking, allowing us to serve well our clients and ourselves.
If you wish to see the blog from which this sprung, you may read for yourself here.
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