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Partner's Perspective: Overcoming Cognitive Biases In The Practice of Law
- Managing Partner Charles B. Jimerson Published in the American Bar Association Journal
- Blog Highlights
- Curiosities, Ruminations and Various Eccentricities of Firm Biz
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PARTNER'S PERSPECTIVE
Charles B. Jimerson - Overcoming Cognitive Biases in the Practice of Law
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I n June, my Partner Brandon Meadows wrote about ageism and how unintentional biases based on age stereotypes prejudice our thoughts on others. A link to Mr. Meadows’ very thoughtful, on-target reflections is embedded here. As Meadows pointed out, these predetermined thoughts often translate to behaviors, for example, assuming everyone “old” is not as capable, adaptable, or able to participate with the fervor of the youthful, or that everyone “young” is inexperienced, entitled, lacking perspective, selfish or less reliable. The reality is that there is often very little correlation with actual work performance behaviors and unconscious beliefs some may hold relative to the age of an employee. Ageism is an example of inaccurate, immoral, and likely illegal cognitive biases foolishly attributing someone’s actions to their demographic, character, or personality, rather than considering situational or external factors that might explain the behavior, performance, or aptitude.
Meadows’ think piece hit the mark, as it got me thinking about biases in my profession. What cognitive biases are lawyers carrying around with us and how are they preventing us from providing better counsel or informing better business decisions? In this context, and probably over derisive objection, I gave us all the benefit of the doubt and didn’t consider my reflection on “bias” as an accusation that the biases were malignantly prejudicial or wicked. Instead, I wondered what bias-baggage even the most virtuous of lawyers carry around. What variety of inadvertent mental tendencies do we invoke that impact our perceptions, memories, reasoning, and behaviors? After all, can we all agree that some cognitive bias tendencies are universal, meaning everyone has them? Our complex human brains have an elemental way of adapting to a complex world. Even a neanderthal brain like mine is set to naturally identify patterns based on experiences, environment, and the information consumed. In doing so, we are subconsciously invited to make cognitive mental “shortcuts” that are inconspicuously developed over time to help us process information and situations more quickly based on past experiences. These mental shortcuts help us operate efficiently, but they also have the potential to skew our perceptions and, therefore, can undermine the search for truth in evaluation of people and circumstances. The eye sees only what the mind is prepared to comprehend.
For lawyers, acting on cognitive biases is a dangerous game. I’ve seen it a lot from adversaries when they see what they want to see, rather than what is actually there if they were following the evidence or law. This type of behavior is akin to confirmation bias, and a lot of lawyers are confirmation bias culprits. Lazy or biased lawyers often make uninformed decisions and then prioritize evidence that supports their conclusions, as opposed to drawing objective conclusions from the evidence and rendering counsel accordingly. Because they are paid to advocate the truth of an oppositional position they want to be true, they end up believing it to be true. Heedless legal minds are motivated by aspirant thinking, and only gather evidence to support the positions they would like to be true, while failing to consider new information that condemns their own views or prejudices. A lawyer who has developed a viewpoint and embraced evidence that confirms their desired outcome while disregarding, or rejecting, evidence that casts doubt on their client’s position is more of a liability than an asset. When I see that happening, I tend to pounce. At our firm, we are well aware of the peril of cherry-picking pieces of law or facts that make us feel good because they confirm our client’s positions. Ignorance and bias in a law firm are environmental pollution.
At Jimerson Birr, to avoid electively drinking our client’s over-sugared Kool-Aid carelessly, we start any matter by a) evaluating a wide range of options; b) gaming out all possible scenarios; c) reality testing variables against evidence and law; d) collaborating amongst peers to repudiate confirmation biases based on objective assessment; and e) ultimately committing to a strategy while remaining flexible in approach. We’ve learned that a lawyer who can recognize their own biases through guided reflection and close examination of processes can deflect bias. During the inception of a matter and consistently thereafter, good lawyers should remind themselves of the cost of biases and the potential benefits of combatting them. Trees that are unbending are easily broken, and confirmation biases are like termites that will chew through your case files if you let them. As Thomas Jefferson once said, “He who knows best knows how little he knows.”
A naughty little cousin to confirmation bias is anchoring bias. Anchoring bias is a cognitive bias that causes lawyers to rely too heavily on the first piece of information they are given about a topic. A lawyer can get anchored when an aggrieved client comes in with a hard-boiled set of plans, strategy, or fact viewpoint that skews the lawyer to interpret newer information from the reference point of the client anchor, instead of seeing it objectively. It is easy to find examples of anchoring bias in everyday life. Customers for a product or service are typically anchored to a sales price based on the price listed or suggested by a salesperson. Any further negotiation for the product is in relation to that figure, regardless of its actual cost. A salesperson can offer a very high price to start negotiations that is objectively well above fair value. Yet, because the high price is an anchor, the final selling price will also tend to be higher than if the salesperson had offered a fair or low price to start. In the context of law, one consequence of anchoring is that lawyers with anchoring bias tend to hold out settlement considerations on matters that have lost value because they have anchored their fair value estimate to the original matter valuation rather than to the fundamentals of the evidence and preliminary legal rulings. As a result, client litigants could be forced to assume greater risk by remaining in a case in the hope the settlement value will return to its erroneous opening valuation. Most times a lean settlement is better than a fat litigation. When I think about combating anchor bias, I think of a great poster of Bruce Lee that used to hang in a run-down Air Force gym I used to work out in. The picture was one of the shredded martial artist in mid kick with a quote that said:
“Empty your mind, be formless. Shapeless, like water. If you put water into a cup, it becomes the cup. You put water into a bottle and it becomes the bottle. You put it in a teapot it becomes the teapot. Now, water can flow or it can crash. Be water my friend.”
To me, in this context, that quote means the art of life (and law) lies in a constant readjustment to our surroundings. The measure of an intelligent lawyer is the ability to change. Lawyers who keep their face to sunshine cannot see their shadow or what lurks in it.
Lastly, lawyers often suffer from the curse of knowledge bias. Once they know something, they find it hard to imagine not knowing it. Our knowledge has “cursed” us, for many in the profession have difficulty sharing their knowledge with others because they can’t readily re-create the untrained state of mind that does not have a baseline for speaking legalese. The curse of knowledge can mean that subject matter experts can struggle to teach beginners, because the authority intuitively assumes that things that are obvious to them are also obvious to the beginners, even though that’s not the case. It is a great explanation for why not all lawyers should be trial lawyers, or otherwise forward-facing. As my late grandaddy would say, “some of those fancy folks don’t have walking around sense.” Unfortunately, lawyers can’t unlearn what they already know, for when you’ve learned something really well, it becomes second nature. In your prime, you become so comfortable using legal language that terms and concepts flow from your mind to your fingertips without conscious awareness. But the curse of knowledge ensures that we are more likely to overestimate our audience’s familiarity with the baselines of our work. Lawyers often forget that the universal language that everyone speaks fluently is plain language. Legalese, industry terms, jargon and procedural minutiae do not make you look smarter. The antidote to knowledge bias is to remember what you know, and how it may be different than what others know. Any great communicator or advocate has to know how to meet their audience where they are and lift them from there using digestible language. There is no communication that is so simple that it cannot be understood. For most lawyers, the single biggest problem in their communication style is their delusion that it has taken place.
There is no silver bullet solution to overcoming bias for lawyers, or anyone for that matter. To me, biases are mitigated more than they are overcome. Tackling unconscious bias can be a daunting task. Pinning down and solving an “invisible” problem will always be a steep learning curve for anyone. Analysis and decision-making based on actual data, systemic information, or personal experience as opposed to intuition is a great starting point. Using a process that starts from a clean slate, incorporates multiple perspectives, challenges status quos, and commits to a quest for following where the evidence may lead seems to be the most inerrant practice I’d dare recommend. Most importantly, all of us should keep in mind that you can’t escape cognitive biases, but if you are aware of them and challenge them, you will become a stronger critical thinker and better decision maker overall.
For those who are interested in learning more about cognitive biases, feel free to reference this very short and simple Twitter thread, or this ranking of books on the topic. There are quite a few on that list that I’ve enjoyed, so feel free to email me for thoughts on any particular book you may be considering spending time with, and I’ll share my take on it if I have one. May your learning experience stretch your mind by new perspectives such that it never regains its original dimensions. As the witty philosopher Voltaire wrote, “The more I read, the more I acquire, the more certain I am that I know nothing.” In the fight against cognitive biases, may we all become the great Voltaire and learn so much that we’ve forgotten what we thought we knew.
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Charles B. Jimerson
Managing Partner
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Charles B. Jimerson Published in the American Bar Association Journal |
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Jimerson Birr Managing Partner, Charles B. Jimerson, has been published in the American Bar Association Journal’s “The Big Ideas” issue, featuring an array of authors from across the legal profession. Jimerson’s article, entitled “Creating and Branding an Award Winning Firm Culture,” (page 60) was adapted from Jimerson Birr’s own firm culture program, JBForMe.
Jimerson Birr is regularly honored in Florida Trend’s Best Places to Work rankings, among other publications. Initiatives in the JBForMe program include employee events and themed days, employee-led decision-making processes, competitive pay and bonuses, stocked company fridges, and regularly hosted happy hours.
The American Bar Association Journal, which has been published for over 100 years, Flagship publication of the American Bar Association. Published six times a year, it’s read by more than half of the nation's 1.1 million lawyers.
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Jimerson Birr Legal Blogs |
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Are you keeping up with the latest information in business and law? Jimerson Birr publishes weekly blog posts covering topics from construction law, real estate development, sales and leasing law, banking and financial services law, community association law, and everything in between. Click here to subscribe today and stay up-to-date on the latest legal news from the industries we serve:
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Real Estate Development, Sales & Leasing Industry Legal Blog |
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What Happens When a Lender Fails to Record a Satisfaction of a Mortgage?
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Paying off one’s mortgage can be an exciting time for homeowners. Not only is the homeowner relieved of the burden of their monthly mortgage payments, but they are also finally able to proclaim that the property is owned free and clear. However, making the payoff alone does not automatically free the home from the mortgage and the lien used to secure it. Under Florida law, a mortgage lender is required to release their lien against the property upon satisfaction, giving the owner clear title to their home, absent any other encumbrances. This article will discuss the requirements that a mortgage lender must fulfill upon satisfaction of a mortgage and property owner’s remedies if the lender fails to do so...
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Community Associations Industry Legal Blog |
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What to Do When Your Community’s MRTA Revitalization is Denied
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What happens when a proposed revitalization of covenants, restrictions, and other governing documents under the Marketable Record Title Act (MRTA) is denied by the Department of Economic Opportunity (DEO)? While MRTA revitalization may appear to be a relatively straightforward process, as outlined within Chapter 712 Fla. Statutes, approval of the revitalization by the DEO is not guaranteed, owing to the steady changes in DEO internal rules and processes. This article will contemplate what happens when the DEO denies a proposed revitalization, along with steps an association can take to appeal, assuming there are no “fatal flaws” in the submission...
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Construction Industry Legal Blog |
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Five Key Construction Contract Terms That Every Building Owner Needs to Negotiate
By: C. Ryan Maloney
When building owners hire a contractor to construct a building or other construction project, the contractor is often significantly more experienced when it comes to the ins and outs of the construction contract as well as the overall construction process. Oftentimes, a building owner may simply accept the contract terms provided by the contractor, without realizing how critical the contract terms can be to the outcome of the project. Doing so can potentially be a very expensive mistake, as contractors may include contract terms that are very one-sided in favor of the contractor, and that can leave the owner in a very bad position if things go wrong during construction. Savvy building owners know that there are certain provisions in a construction contract that need to be negotiated before the project starts when the owner has the most negotiating leverage. This blog highlights five of the key construction contract provisions that every building owner needs to pay close attention to when negotiating with the contractor...
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Banking & Financial Services Industry Legal Blog |
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A Primer on What Lenders Need to Know About Foreclosure Appeals in Florida
In Florida, a lender initiates a foreclosure by commencing a lawsuit in the county where the property is located. If the lender is successful, the lender will receive a final judgment of foreclosure from the court and the property will be sold at a public auction. If the borrower fails to timely file a motion for rehearing, or a motion for rehearing has been denied, the unsuccessful borrower can appeal the final judgment of foreclosure. Regardless of whether a lender was successful or unsuccessful in their foreclosure lawsuit, it is important for lenders to know about the appeal process in Florida.
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Cross-Industry Legal Blog |
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How to Stop Disparaging Reviews from Former Employees Through Aggressive Litigation
Any employer, large or small, may run the risk of dealing with disgruntled ex-employees. One common problem employers face is negative and false reviews about their businesses left by former employees on Glassdoor or similar platforms. The biggest problem for most employers is that these false reviews tend to be posted with no clear way to identify the anonymous reviewer and take legal action. The purpose of this blog is to make employers aware that there are practical, legal solutions to find out the identity of an anonymous reviewer, and to help employers avoid common pitfalls in pursuing litigation against posters of defamatory and false reviews. Below is a step-by-step guide that will instruct employers on how to litigate against these anonymous reviewers and put a stop to their lies.
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Curiosities, Ruminations and Various Eccentricities of Firm Biz |
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August JB FOR ME Highlight Reel
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With back-to-school season upon us, we started to wonder how we could give back to those less fortunate than us. For Jimerson Birr, social responsibility is more than something we casually care about-- it's an integral component of our firm culture.
To support families in need, the JB team organized a drive benefitting The Clara White Mission, an organization not only close to our hearts, but close to our office as well. Meaning this would truly hit home. Together, our staff was able to collect and donate toothbrushes, clothing, non-perishable food items for Clara White.
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August is more than just back-to-school, it's also back to FOOTBALL! In order to get in the spirit, all of Jimerson Birr dressed up in their gameday best. What's better than our team looking good? The Jags looking good. Protect Trevor at all costs.
We suggest having a Jaguars apparel day because, more than anything, it will help you weed out the fake fans in your office.
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