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Cognitive Bias in Legal Decision Making Ian Weinstein Fordham University School of Law, Iweinstein@Law.Fordham.Edu Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History Faculty Scholarship 2002 Don't Believe Everything You Think: Cognitive Bias in Legal Decision Making Ian Weinstein Fordham University School of Law, [email protected] Follow this and additional works at: http://ir.lawnet.fordham.edu/faculty_scholarship Part of the Ethics and Professional Responsibility Commons, Law and Society Commons, and the Litigation Commons Recommended Citation Ian Weinstein, Don't Believe Everything You Think: Cognitive Bias in Legal Decision Making, 8 Clinical L. Rev. 783 (2002-2003) Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/422 This Article is brought to you for free and open access by FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. DON'T BELIEVE EVERYTHING YOU THINK:* COGNITIVE BIAS IN LEGAL DECISION MAKING IAN WEINSTEIN** This article discusses the role of cognitive bias in legal decision making. Drawing on research in cognitive science and law, it ex- plores the impact of cognitive bias on both lawyers and clients. These often subtle mental biases can lead to pervasive errors in decision making by causing us to ignore important information and make in- accuratepredictions. They may lead a client to underestimate the risk of litigation. They may also lead a lawyer to miscategorize a client's value choice as a misjudgement of fact. The article offers illustrative stories of the impact of bias on both client and lawyer and suggests how to identify and attenuate these biases. It closes with the reminder that careful study and reflection will make us better legal counselors, but a precise analysis of lawyerly judgement still eludes us. I. INTRODUCTION "They took a bag from me, but this paper says it was a box," Mr. Worth repeated. "They have no case against me. No jury will send me away when the prosecutor is lying and saying the drugs were in a paper bag. A paper bag is not a box." "I will argue that," I assured him again, "But what do you think the prosecutor will say about the bag or box business? Like I said before, I think the agent will just say it was a mistake on the com- plaint. The prosecutor will say that the drugs inside are what matters. I don't think the jury will focus the whole case on that." "But it was a bag." He insisted. "I hear you." I replied, nodding. James Worth1 and I sat in an attorney client conference room on the third floor of the Metropolitan Correctional Center in New York * Bumper Sticker on a Volvo 240 wagon. ** Associate Professor of Law and Director, Brendan Moore Advocacy Center, Ford- ham University School of Law. Thanks to Mark Aaronson, James Cohen, Deborah Denno, Martha Rayner and Monica Rickenberg, the participants in the Fordham Law School Works in Progress Colloquium and my research assistants, Hannah Shay and Sara Feld- schreiber. Fordham University provided financial support for this project. I James Worth and the Worth case are composites based upon hundreds of clients with whom I have worked in the United States Courts for the Southern and Eastern District of New York. I was an Associate Attorney with the Federal Defender Services Division of the Legal Aid Society of New York from 1988-1991 and now represent defendants as a member of the Criminal Justice Act Panel for the Southern District of New York (SDNY). CLINICAL LAW REVIEW [Vol. 9:783 City. He had been arrested on a complaint charging him with conspir- acy to distribute cocaine. I had been appointed to represent him. This was our third meeting and it seemed to be going reasonably well. Mr. Worth asked relevant questions and was engaged in the discussion. He and I had not yet resolved our differences on the key question of whether or not a jury would convict him, but coming to a shared pre- diction about the outcome of a serious criminal case is a complex pro- cess for both lawyer and client. It should not be rushed. I learned that lesson after representing hundreds of clients charged with federal felonies. As I reflected on my conversations with clients, I was often struck by how readily they mixed solid common sense and utterly illogical argument. I questioned my clients' wisdom and sometimes noted that people who commit crimes are not distin- guished by their good judgment. I was, in an important way, quite wrong. Whatever the quality of their judgment, my clients exhibit the same pervasive errors in decision making, commonly called cognitive biases, as the rest of us.2 They are acting on the same cognitive biases that cause most of us to report that we are above average drivers, fail to wash our hands before dinner but refuse to go outside because of ticks and hold on to a losing investment far too long. Although there may be reason to think that defendants in criminal cases may be more prone to these errors,3 these are differences in degree, not in kind. Both clients, and their lawyers, are subject to cognitive bias. This is an essay about how lawyers and clients can recognize and respond to cog- nitive illusions. The story of my defense of a federal narcotics case illustrates these problems, but this is just one example of a common 4 set of lawyering problems. 2 Cognitive biases, also known as cognitive illusions, are systematic errors in judgment and prediction. They cause us to overpredict the frequency of rare but vivid events like airplane accidents while we underestimate the frequency of car accidents, which are much more common. These systematic biases have been of interest to cognitive scientists and experimental economists for some time. The classic works, which brought these ideas to wide attention are Daniel Kahneman & Amos Tversky, Prospect Theory: An Analysis of Decision Under Risk, 47 ECONOMETRICA 263 (1979); DANIEL KAHNEMAN, PAUL SLOVIC & AMos TVERSKY ED. JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES (1982). 3 For discussion of the role of individual difference on cognitive bias, see infra note 92 and accompanying text. Stress and distress may also increase cognitive error. See infra note 90 and accompanying text. 4 General analysis of lawyering is difficult. Varying norms govern the many different contexts in which lawyers use their specialized knowledge. Although clinical writers ask broad questions about lawyering, the range of variations in skills and substantive law across practice areas means that the answers to questions about lawyering are often incon- sistent at all but the highest levels of generality. Should lawyers advance only their clients' aims or also account for the needs of third parties or the legal system? Should lawyers offer unsolicited advice or refuse to offer advice when asked? General answers are often unsatisfactorily vague, but contextualized discussion can be quite rich. This essay is a con- textualized approach. Spring 20031 Don't Believe Everything You Think Lawyers should account for cognitive bias in their clients and themselves for two reasons. First, recognizing and responding to cog- nitive bias or illusion can improve the quality of client decision mak- ing.5 Cognitive biases can lead to bad choices. A client may decide on a particular resolution of a case based on a faulty prediction about the likely outcome of a given course of action6 or an incorrect assessment about relative desirability of different outcomes.7 The lawyer may not effectively counsel8 the client 9 because he or she may fall prey to the Three legal ethics scholars offer examples of interesting and valuable context specific analysis. Paul R. Tremblay, The New Casuistry, 12 GEO. J. LEGAL ETHICS 489 (1999) (ar- guing that casuistry, which relies on paradigm moral exemplars, offers a good model for reasoning about legal ethics); Bruce A. Green, Symposium Case Studies in Legal Ethics: There but for Fortune: Real-life Vs. Fictional "Case Studies" in Legal Ethics, 69 FORDHAM L. REV. 977 (2000) (concluding that "fleshed out" stories of real ethical problems are the best learning tools but hard to find); Robert Rubinson, Attorney Fact-finding,Ethical Deci- sion-making and The Methodology of Law, 45 ST. Louis L.J. 1185 (2001) (arguing that ethics discourse should account for the interpretative complexity of fact finding, promote understanding the circumstances of clients and cases and promote a textured approach). The report of a conference at Fordham Law School on ethical issues in the legal repre- sentation of children is another example of context specific analysis of lawyering problems. The introduction discusses some of the particular problems posed by representing children. Bruce A. Green & Bernadine Dohrn, Foreword: Children and the Ethical Practice of Law, 64 FORDHAM L. REV. 1286-90 (1996) (discussing a range of problems lawyers typically encounter when they represent children and introducing more than a score of reports, articles and responses analyzing and suggesting approaches to remedy those problems). 5 See John M.A. DePippa, How Prospect Theory Can Improve Legal Counseling, 24 U. ARK. LIrrLE ROCK L. REV. 81 (2001) (applying prospect theory to legal counseling and analyzing how its insights can help lawyers counsel their clients to make better decisions). 6 See infra note 112 and accompanying text for a discussion of how cognitive bias can lead to bad predictions about the outcome of a trial or the judge's ruling on a legal issue. 7 In choosing between two options, bias can make us more sensitive to the appearance of gain or loss than the actual difference in value between those two choices.
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