Legal Ethics and Confirmation Bias

Confirmation Bias and Legal EthicsLaw is a profession governed by a set of ethical rules. Legal ethics is introduced to law students in a professional responsibility class. Lawyer ethics are re-enforced after law school as most law school graduates must pass the Multistate Professional Responsibility Examination in order to become licensed as attorneys.

To hold onto their law license, lawyers must act ethically or face prosecution for violation of the ethical rules by the state disciplinary authority. In most states, lawyers must continue to educate themselves in areas of legal ethics and professionalism through continuing legal education requirements. All of these things are in place to ensure that attorneys perform their jobs to the highest standards of professionalism.

But escaping prosecution for ethical violations does not mean a lawyer meets the highest standards of professionalism. There are more nuanced requirements of professionalism that lawyers must be aware of. One culprit that may stand in the way of professionalism is confirmation bias.

Confirmation Bias Undermines Effective Lawyering

In more technical, scientific terms, confirmation bias “is a phenomenon wherein decision makers have been shown to actively seek out and assign more weight to evidence that confirms their hypothesis, and ignore or underweigh [sic] evidence that could disconfirm their hypothesis.” What this means for the average person is a tendency to seek out information or to view things in a way that confirms what you already believe. Although this isn’t generally a good tendency for anyone, it can be disastrous for lawyers.

Confirmation bias contributes to overconfidence in personal beliefs, even when faced with contrary evidence. This can affect lawyers’ perspectives on things such as which route might be the best for a client, or the strength of arguments they’re making. As Jennifer Romig writes,

[f]or lawyers, a classic case of confirmation bias is not being able to recognize or accept that a formerly high-value case may not, after discovery, be as fantastic as it first seemed.

Overconfidence can likewise polarize people, leading to incivility, as each side blindly sticks by their perspective without truly evaluating the merits of statements presented by another.

Confirmation bias also affects communication, a critical skill for lawyers. One way is that it leads to bad listening. “When someone speaks up in a conversation with comments leaning one way or the other, that person’s confirmation bias may then shape the way she hears the rest of the conversation,” Romig says.

Failing to keep an open mind and failing to really listen to others hit right at the heart of our work as lawyers.

Confirmation Bias Undermines Lawyer Promotion or Advancement

But perhaps more alarming is the effect confirmation bias may have on the way we perceive others in the industry. Research group Nextions conducted a study 10 years ago, that revealed an unconscious bias in the way partners at firms viewed the writing of black attorneys. In a 2014 follow up study, they focused specifically on the issue of confirmation bias in evaluating the writing skills of black attorneys versus their Caucasian counterparts. Participating law firm partners were provided the identical memo and asked to edit the memo written by a male third year associate (named Thomas Meyer who went to NYU Law School) for factual technical and substantive errors. With respect to the student’s race/ethnicity, half were told he was African American and half were told he was Caucasian.

Although the two memos were identical, the average rating for the memo associated with a black attorney was a 3.2 out of 5, while the memo associated with the Caucasian associate received a 4.1 out of 5. The black attorney’s memo also received comments such as “can’t believe he went to NYU,” or “needs a lot of work,” far more critical than any comment about the white attorney’s memo. Concerning is the fact that the partners genuinely believed they had objectively evaluated the memo. The study notes that, “[w]hen partners say that they are evaluating assignments without bias, they are probably right in believing that there is no bias in the assignment of the errors found; however, if there is bias in the finding of the errors, even a fair final analysis, cannot, and will not, result in a fair result.”

This result should trouble all in the industry. As Ellen Bailey and David Laigaie note, “[o]ne takeaway from this study is the need for law firms to question whether and how advancement decisions are influenced by race.” And this bias could be undermining diversity efforts across the profession. Although minority students make up a fifth of law school graduates, a recent study shows minorities made up only 14.56 percent of lawyers at end of 2013. And leadership statistics are worse: minorities only accounted for 7.33% of partners in the nation’s major firms, according to the latest NALP study.

Possible Solutions

Addressing this won’t be simple. As we’ve noted before, discussing how we handle race is not an easy conversation. And it will be further compounded by the fact that people believe they are acting objectively. “This can be a volatile subject, especially when the decision-makers consider themselves to be well-intentioned, rational and objective,” Bailey and Laigaie write. “Rather than examine themselves for potential fault, decision-makers have been known to bristle when it is suggested that some form of bias, especially racial, may have played into what they deem to be purely objective decisions.” But we need those conversations.

There are other steps lawyers can take to acknowledge and try to curb confirmation bias. The first thing to do, Romig says, is slow down.

Slowing down enough to consider the analysis while asking questions from different angles can help combat confirmation bias…seek out input from a group, where the members of the group have each assessed the same question independently.

Dr. Downing who writes on the role psychology plays in lawyer decision-making advises that lawyers should seek out information that contradicts their beliefs and try to actually understand and evaluate other options. Perhaps most importantly, she argues that lawyers should always question what they know. “Always learn to examine your perspective and determine if the facts back up what you believe,” she writes.

Attacking confirmation bias is part of being a professional. Do you have any tips to share?

 

Lindsey Lusk, our intern from the University of Illinois College of Law, contributed to this post.

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Jayne Reardon
As a prior trial lawyer, Jayne leads lawyers to embrace the transformative possibilities of future law practice. As a prior disciplinary counsel, Jayne is passionate about promoting the core values of the legal profession. She is a graduate of the University of Michigan Law School and the University of Notre Dame. Jayne lives in Park Ridge, Illinois with her husband and those of her four children who are not otherwise living in college towns and beyond.
Jayne Reardon

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