Mind the Shortcuts

Knowledge conceptLet’s say as an associate you complete and turn in a first draft of a brief to the assigning partner. Do you trust/hope/assume that your work will be evaluated on its merits regardless of your gender or nationality? Perhaps you think that good legal writing is like what Justice Potter Stewart said about obscenity—we know it when we see it. We certainly don’t want a partner’s bias about us as a writer to influence an evaluation of our performance before the draft is even reviewed.

We all may worry to some extent that someone’s bias will influence a choice or decision that will negatively impact us personally, and, as a result, we tend to view biases as a bad thing. At the same time, we rarely stop to consider our own biases and how they impact our personal perceptions and decisions. This, of course, is to be expected, because the tricky thing about bias is that our perceptions and beliefs are generally so engrained in our collective thought processes that we may be wholly unaware that a bias is playing an active role in our decision-making.

A New Form Of Bias

One form of bias that can be particularly far-reaching in its effects is the confirmation bias. Nextions defines confirmation bias as a mental shortcut–a bias–engaged by the brain that makes one actively seek information, interpretation and memory to only observe and absorb that which affirms established beliefs while missing data that contradicts established beliefs.

Despite the negative association we give to bias, confirmation bias is a necessary part of the human thought process. Given the vast amount of information in the world, our brains need to create shortcuts in order to take in and interpret that which we’re exposed to. (For an excellent treatment of how the brain works to categorize information, read Thinking, Fast and Slow by Nobel Laureate Daniel Kahneman.) To absorb and then objectively analyze every fact that’s presented to us in the age of information is not only exhausting, it’s impossible. So the bias is a natural byproduct of information processing.

The Downside Of Confirmation Bias

Confirmation bias becomes a problem when we are confronted with facts and evidence that make our biases provably wrong; but nonetheless, we cling to what we believe is true. Thus, a confirmation bias is less of an actual bias, and more of a process that we undertake to perpetuate an existing bias, in order to affirm our own beliefs. More specifically, a confirmation bias is our subconscious effort to look for facts or evidence to support a view that we have already subscribed to. This subconscious practice of confirmation bias, as played out in the legal profession, can impact the workplace on a couple of levels.

On a surface level, a confirmation bias can be as simple as an unsubstantiated preference for a particular type of software over another. Instead of exploring other options that may further our practice, we will hold on to old technologies because we’re comfortable with them; in order to justify our resistance to the alternative, we start looking for anything that will back us in our beliefs. This same practice can have a much more negative implication when it’s applied to a more meaningful scenario, such as how we view our colleagues and evaluate their work. Confirmation bias even dictates which news outlets we watch and how we vote.

Although one explanation for the phenomenon of confirmation bias is to create shortcuts for our brains to process information more quickly, an alternative explanation is more personal: we hate being wrong. Studies have shown that even when people are confronted with facts that expressly contradict their bias, the bias becomes stronger, not weaker. The opposite is true for those who’ve not yet developed a bias toward a particular subject. In the latter case, someone who is uniformed is more likely to objectively analyze and interpret facts than someone who is misinformed. A misinformed person, on the other hand, will be more likely to ignore or discredit important facts that stray from her belief. Why? Because the misinformed person is seeking to validate her beliefs, and to back down would be an admission that she was wrong.

The good news is that we can subvert the confirmation bias by understanding how the process works and then consciously creating interruptions to the process so as to prevent the bias from coloring our analysis of new information. Take for example a study conducted by Nextions, in which partners at law firms were asked to evaluate a hypothetical junior associate’s writing, using race as the variable to demonstrate bias. The exact same memo received a 3.2/5.0 rating when described as having been written by an “African American” associate and a 4.1/5.0 when ascribed to a “Caucasian.” The study revealed that the confirmation bias occurred in the data collection phase of the evaluation processes and not the final analysis phase. If we are expecting to find fewer errors, we find fewer errors. When expecting to find more, we find more errors. That is unconscious confirmation bias. The researchers conducting the Nextions survey concluded 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 assessment 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.” A takeaway could be that superiors should evaluate subordinates on work product unconnected to names or expectations about their likely performance.

Other ways to interrupt the process and challenge our confirmation biases are to seek out information contrary to what we believe or from sources other than what we usually rely upon. We should also question what we believe to be true or “the ways things always have been done.”

We cannot do away with biases. We can bring them into our consciousness and be careful not to let them dictate our evaluations of our colleagues, or how we view and value those around us.

 

 

Brittany Hubbard, our intern from Kent Law School, 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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