The practice of law involves making decisions on a daily basis. We like to think that these are rational and based on a careful examination of all the facts, but is that really the case?

In this article, we will discuss the biases that influence our decisions. In particular, we will briefly explain how the decision-making process works. Next, we will discuss the main biases that may influence the judgment of lawyers and the risks they entail with respect to professional liability. Finally, we will explore possible solutions to mitigate their effects on decision-making.

The Decision-Making Process: How Does Our Brain Work?

According to law professor Craig E. Jones, 90% to 100% of our decisions are made unconsciously. In fact, the decision-making process is made up of two (2) systems.

System 1 is what some call the primitive brain. It is located in the area of the basal ganglia and the amygdala. It is associated with intuition as well as emotions, and decisions emanating from this system are unconscious. You probably guessed it: biases are intrinsically linked to System 1. In social and cognitive psychology, a bias is an intellectual shortcut that allows quick, intuitive and effortless decision-making. It makes it possible to make a judgment or a decision in a less laborious way than analytical reasoning that would take into account all the relevant information, hence the danger! Biases can lead lawyers to ignore some relevant facts, sometimes resulting in erroneous decisions or judgments.

System 2 is located in the neocortex of our brain. This system works more slowly and the decisions emanating from it are conscious and rational. Neuroscience suggests that System 2 is used very little and is deployed mainly to rationalize decisions made by System 1.

It should be noted that the use of biases is more likely to occur when a person is tired. In this regard, the quality of decisions tends to decrease as the day progresses. Some refer to the concept of decision fatigue. An illustration of the above comes from a study that analyzed Parole Board decisions in Israel. The study found that the chances of an inmate being released were approximately 66% if the hearing was held in the morning, compared to only 10% at the end of the day. The chances of being released were slightly higher just after the lunch break. Stress, multitasking and time pressure are also negative influences on decision-making.

Biases: Their Influence on Decision-Making

Although it is difficult to eliminate the influence of biases in decision-making, the first step in doing so is to become aware of them. Let’s look at some of the biases that can manifest themselves in our practice.

Confirmation bias: This is a bias that causes a lawyer to seek out information that confirms a pre-existing opinion or belief or to interpret information in a way that confirms that opinion or belief. Some criminal lawyers are familiar with this bias as “tunnel vision”, which leads police officers to ignore exculpatory evidence because of their strong belief in an individual’s guilt. This bias can lead to judicial errors.

Anchoring bias: Anchoring bias refers to the use of information as a reference when it has no connection to the objective sought. Generally speaking, this is the first piece of information obtained on a given subject. The anchoring effect occurs regularly when numbers are involved. Consider the following example: In negotiations, the party making the first settlement offer has an advantage since the amount offered will form the basis for the negotiation session.

Overconfidence bias: This bias manifests itself in the tendency to overestimate one’s abilities. It is exemplified by thoughts such as:

“Writing out the theory of the case is for young lawyers! I’ve had several cases like this, I know what I have to do.”

“I don’t need to prepare myself for my application for an extension of the time for setting down the case because judges always grant such applications. It’s a sure thing!”

“I have a solid case! Let’s go to trial. I’m sure I’ll win.”

Framing bias: The way a situation is presented influences decision-making. For example, in a criminal trial, a lawyer who wants to convince the jury will be better off presenting his case as a chronological story, using emotionally charged words and illustrating what he is saying with metaphors or analogies.

Here is another example: A lawyer and his client are discussing the chances of success of a case. In the first situation, the lawyer tells the client that he estimates the chances of success of the case at 60%. In the second situation, he tells the same client that there is a 40% chance that a judge will rule against him. Clearly, the same information is being given to the client. However, a risk-averse client is more likely to settle when presented with a 40% chance of losing his case.

Choice-supportive bias: This bias refers to making decisions on the basis of past choices that are no longer current. It also refers to the tendency to rationalize our past decisions when they have proven to be wrong. One illustration of this is the lawyer who maximizes the chances of success and advises his client to go to trial. However, the judgment is in favour of the opposing party. In discussing the case with a colleague, the lawyer tries to justify himself by listing all the reasons why he went to trial.

Representativeness heuristic: It is a person’s tendency to reason about a given issue by focusing on immediately available information, events that strike the imagination or are exceptional. For example, a lawyer representing the defendant becomes aware of a decision in a case similar to his own that awards unprecedented damages to the plaintiff. Although no other judgment awards such damages, this lawyer may be tempted to suggest to his client that he settle the case for a huge amount.

Biases and Their Links to Professional Liability

As briefly stated above, biases can be dangerous with respect to professional liability since they encourage incorrect processing of facts or information. In concrete terms, biases can lead to the following problems.

At the beginning of a case, they can lead to an incomplete investigation of the facts or to the collection of facts supporting only the lawyer’s position. In addition, biases may undermine the lawyer’s assessment of the client’s needs and objectives, leading to misunderstandings with the client.

Furthermore, biases can lead to a flawed analysis of the evidence, by having the lawyer ignore evidence contrary to his position. Put another way, the lawyer comes to espouse his client’s case, unwittingly leading him towards abuse of process. Other biases are likely to lead the lawyer to give undue importance to certain facts that are not related to his theory of the case, such that the strategy proposed to the client is not optimal (e.g.: the anchoring bias or the representativeness heuristic). In the same vein, sometimes a lawyer who notes an element that is unfavourable to his client’s interests may be a little too quick to conclude that the case has little chance of success when, in reality, there are facts and evidence to support the client’s position.

Finally, the danger also lies in inadequate preparation for trial, for the presentation of an incidental claim or for a negotiation, particularly due to overconfidence. The lawyer will not bother to prepare a response to any arguments that may be raised against him or the jurisprudential research on a particular point may be glossed over.

Avoiding the Traps of Biases

Given the foregoing, here are some preventive measures that can help you avoid the traps resulting from biases:

• Make sure to gather all the evidence and facts relevant to your case and examine all of them with the same rigour. In this regard, the use of a matrix with the theory of the case specific to your type of file can help you when gathering information;

• As part of your analysis of the case, try to anticipate the arguments that the opposing party might raise (i.e., anticipate the opposing party’s strategy). How strong are these arguments and how strong are your counter-arguments? In the same vein, approach the problem from different angles. You might think that the best way to resolve a dispute is through the courts, but have you considered private mediation?

• Moreover, slow down the decision-making process to allow you to weigh all the available possibilities. Make important decisions at the time of day when your energy level is high in order to counteract the effects of decision fatigue;

• Consult with colleagues to see if your position is sound. To do this, surround yourself with people who can disagree with you and play “devil’s advocate”. In this regard, it’s a good idea to surround yourself with people who have different traits and can therefore bring new perspectives. By surrounding yourself with people similar to you, the only thing you will succeed in creating is a group effect where any new idea is stifled. Furthermore, when consulting colleagues, avoid “anchoring” them with your position. Limit yourself to presenting the relevant facts and wait to get their point of view before giving yours;

• In the case of a negotiation, properly prepare the strategy with your client. What is the maximum or minimum amount to offer or accept? Are there non-monetary issues? Anticipate different negotiation scenarios. In all cases, make sure you get clear, written instructions from your client before negotiation day;

• Prepare checklists for your files, such as the process for opening a file, the process for searching for conflicts of interest, the systematic entry of dates in your agenda, etc. The adoption of such behaviours is far from simplistic. They can allow you to identify a problem that would otherwise go unnoticed given the hectic pace of the practice of law. In addition, they limit the risk of forgetting something and curb the tendency to cut corners out of overconfidence;

• Likewise, establish routines. For example, think about checking emails at specific times of the day or checking all your files every 60 days. That way, in the event of malpractice proceedings, if there is no written record to support your claims, you will at least be able to testify as to your routine;

• Finally, ask yourself about your motives or the emotions that the case may elicit and that could colour the way you approach it. Do you see the file as a potential career boost or have you previously had a negative experience in a similar file?

We all have to make a considerable number of decisions every day. Unfortunately, to save time and energy, our brains can sometimes make us take a few shortcuts that can be more harmful than helpful. These preventive measures will allow you to be more confident in the quality of your decisions and reduce the risk of malpractice proceedings.

 

References:

Craig E. Jones, “The Troubling New Science of Legal Persuasion: Heuristics and Biases in Judicial Decision-Making” (2013) 41: 1 Advoc. Q. 49.

Hammond, John S., Keeney, Ralph L. and Raiffa Howard, “The Hidden Traps in Decision Making”, in Harvard Business Review, January 2006, online: https://hbr.org/1998/09/the-hidden-traps-in-decision-making-2. https://hbr.org/2006/01/the-hidden-traps-in-decision-making.

Rock, Nora, “How neuroscience awareness and evolutionary psychology can help lawyers avoid claims and offer better client service”, in AvoidAClaim, February 21, 2017, online: https://avoidaclaim.com/2017/how-neuroscience-awareness-and-evolutionary-psychology-can-help-lawyers-avoid-claims-and-offer-better-client-service/.

Soll, Jack B., Milkman, Katherine L. and Payne John, “Outsmart Your Own Biases”, in Harvard Business Review, May 2015, online: https://hbr.org/2015/05/outsmart-your-own-biases.

Wistrich, Andrew J. and Rachlinski, Jeffrey John, Implicit Bias in Judicial Decision Making How It Affects Judgment and What Judges Can Do About It (March 16, 2017). Chapter 5: American Bar Association, Enhancing Justice (2017), Cornell Legal Studies Research Paper No. 17-16, Available at SSRN: https://ssrn.com/abstract=2934295 or http://dx.doi.org/10.2139/ssrn.2934295.

Wolf, Robert F. “How to Minimize Your Biases When Making Decisions”, in Harvard Business Review, September 24, 2012, online: https://hbr.org/2012/09/how-to-minimize-your-biases-when.