In August 2019 a thirty-year-old man was attempting to exit the elevator in his high-rise building in New York City. As he stepped across the threshold, the elevator plunged to the ground, crushing him between its car and the wall. The shocking scene was captured on the building’s security cameras and soon people in the New York tristate area were viewing and reading about this tragedy on a daily, if not hourly basis.
In the days following his death, as New Yorkers were interviewed by the media, a common theme emerged: they were terrified to take their elevators at work and home. Some recounted how they were choosing to walk up and down (sometimes as many as twenty) flights of stairs in the August heat because they were terrified to take an elevator.
Was their behavior of elevator avoidance and fear warranted? Rational? Logical? Were elevators yet another big risk inherent in city living? Not according to statistics. Statistically, on any given day a New Yorker is much more likely to cross the street and get hit by a car, cab, or speeding bicycle, than harmed in an elevator.
Why wasn’t anyone talking about the traffic risk? Why were these New Yorkers so fixated on elevators? Let me introduce you to the highly irrational, fraught with emotion, extremely lazy, mental shortcut—the cognitive bias, in this case, the availability bias. The availability bias posits that humans will overestimate the likelihood of events which are recent or unusual and emotionally charged.
What are cognitive biases?
Cognitive biases are mental shortcuts used in human decision making. As discussed above, they are neither logical nor rational. They are based on an intuitive style of thinking, rather than deliberative, and emanate from an individual’s tendency to organize social worlds by categorizing. Simply stated, cognitive biases are the brain’s way of making sense of a chaotic world.
Use of these mental shortcuts are increased in times pressure or stress. They are found in every facet of our lives, exerting great influence over our decision process. Litigation is no exception. Cognitive biases can be found from the inception of a case through trial or settlement. These biases can be held by a judge, mediator, lawyer, juror, and litigant. Below are several of the more prevalent biases found in social psychology and will be explored further in relation to the litigation process in our upcoming podcast.
Confirmation bias, sometimes referred to as “myside bias” posits that people are predisposed to seek information which confirms their preexisting beliefs, by ignoring, disregarding, and dismissing information which supports an opposing or different viewpoint.
Confirmation bias on the part of a lawyer (sometimes known as “falling in love with your case”) can be one of the most detrimental biases, and is an impediment to an objective case evaluation. A lawyer lives with their case, from the time they first meet with their client (or served with a complaint), through written discovery, depositions, motion practice and trial.
As the lawyer dons their advocate hat, the psychological phenomenon of disregarding and dismissing their adversary’s case strengths and overvaluing and inflating arguments of their side begins, and will continue throughout the litigation sometimes hindering an opportunity for a productive settlement.
As discussed in the introductory example, involving the elevator death, the availability bias posits that humans will overestimate the likelihood of events which are recent, unusual and/or emotionally charged. Another example of the availability bias implicated in human decision making, was the fear many people had of flying following the September 11, 2001 terrorist attacks. People were afraid to fly immediately following the attack, yet would happily take a car trip.
The irony is statistically car accidents are much more likely than plane crashes (and much more likely than plane crashes caused by terrorist attacks), and increased even more when everyone is having the same fears at the same time, which in turn will inevitably lead to more cars of the road, further increasing risk.
With respect to availability bias in the courtroom, it can be used as a tool for the plaintiff attorney to argue the defendant posed a risk to the community, and as a member of the community, any juror could have easily been in the plaintiff’s position. Conversely, availability bias must be neutralized by a defense lawyer by using statistics to diffuse a “danger to the community argument” while putting forth an “isolated incident” theory.
The premise of the cognitive bias known as anchoring, is that people tend to rely heavily on one specific trait or piece of information and drive all of their conclusions based upon that information. In the context of negotiation, once the value of this anchor is set, all future negotiations, arguments, and estimates are discussed in relation to the anchor. Studies have shown that when compared, in identical cases one with a higher settlement demand will ultimately settle for more money than the case with a lower demand number, as the demand becomes the monetary “anchor.”
Although the anchoring bias is commonly used in the settlement and negotiation arena, it can also be used in an actual litigation regarding the theory of the case. If the case theme is coherent, cohesive, and compelling, then it can act as the anchor in a case and all evidence, testimony and exhibits will be viewed through the lens of the theme which has become the anchor.
Improve Litigation Results
There are a myriad of cognitive biases in addition to the ones discussed above found in litigation. These biases affect how cases are analyzed, evaluated and how information is processed and presented. One thing is certain, whether a lawyer is representing a plaintiff or a defendant, awareness, understanding, and recognition of cognitive biases and how they may impact litigation is critical. Once a lawyer can spot the bias, only then will they be able to mitigate or harness it to achieve a better litigation result.
Shari E. Belitz is the CEO and Founder of Shari Belitz Communications LLC: a company dedicated to teaching lawyers how to use social psychology to achieve favorable litigation outcomes.