Cognitive Biases: The Elephant In The Room
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No matter how rational and fair lawyers believe they are, 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.
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