Over the past few weeks, I’ve published several articles detailing how individual cognitive biases can disrupt the litigation process.[1] There are over 100 documented cognitive biases[2] and to understand each bias’s effect on the litigation process, it’s helpful to view each bias individually, in a vacuum. As such, most cognitive bias research examines these biases individually. The issue though is that in real-life litigation, individual biases do not exist in a vacuum. Instead, in real-life, all 100 or so biases work collectively to shortcut the human brain into hasty decision making. And two of these biases, the confirmation and availability biases, are particularly dangerous when they collide in the courtroom.
The Confirmation Bias
In a previous article, I discussed how confirmation bias impacts litigation outcomes.[3] The confirmation bias is the tendency for people to search for, interpret, favor, and recall information that confirms their preexisting beliefs.[4] On its own, the confirmation bias can have a dangerous influence on the litigation process because of its effect on both the attorney and fact-finder’s decision making. In attorney decisions, the confirmation bias can cause attorneys to accidently disregard important facts when evaluating a case because unfavorable facts may contradict the attorney’s preexisting theory of the case.[5] Acting on confirmation bias, an attorney may gloss over critical, oppositional facts, give less weight to the opposition’s counter argument, or decide to go forward to trial in a case with weak facts that should have been settled.[6]
As factfinders, the confirmation bias is present in jurors and judges alike, as both groups come into a case with their own preconceived beliefs and life experiences that impact how they will understand every new fact presented to them.[7] This means that even the most astute factfinder will color new facts and render verdicts through the distorted lens of the confirmation bias. And though studies have proposed mitigation tactics to the confirmation bias in the courtroom,[8] there is not a foolproof way to eliminate the bias from the process.
Because the confirmation bias impacts everyone in the litigation process and is impossible to eliminate, it’s a minefield for litigation outcomes all on its own. But, as mentioned, cognitive biases are tribe creatures. They do not travel alone. In litigation, the confirmation bias works in tandem with all the other cognitive biases, especially one known as the availability heuristic.
The Availability Heuristic
First identified in 1973 by behavior science pioneers Tversky and Kahneman, the availability heuristic is our tendency to overestimate the likelihood of events when they readily come to mind.[9] In their initial 1973 study on the availability heuristic, Tversky and Kahneman asked participants whether more words begin with the letter “K” or if more words have “K” as their third letter.[10] The study found that even though a typical text contains twice as many words with the letter “K” as the third letter rather than the first, 70% of study participants said that more words begin with the letter “K”.[11] Tversky and Kahneman reasoned that this was because it was easier for participants to think of words that begin with the letter “K” (e.g. kitchen, kangaroo, king, etc.) than words that have “K” as the third letter (e.g. ask, cake, biking).[12]
In a later study demonstrating the availability heuristic, Tversky and Kahneman asked half of participants to predict the likelihood of a massive flood occurring somewhere in North America, and asked the other half of participants the likelihood of a massive flood occurring in California due to an earthquake.[13] Even though the chance of a flood occurring in California is less likely than a flood occurring in any part of North America, participants said that an earthquake caused flood in California was more likely.[14] This is because it’s easier to quickly conceptualize a flood due to an earthquake in California than a flood occurring in an unspecified part of North America.
Modern studies have also found that, similar to the confirmation bias, the availability bias can wreak havoc on litigation outcomes.[15] In a 2012 study analyzing the effect of media exposure on jury verdicts in a product liability case, researchers had participants read one of three news articles describing a verdict award in a conceptually similar product liability case.[16] The three articles varied the amount awarded to the plaintiff from $14.25 million; $4.75 million (the actual award in the similar case) to $800,000.[17] The study also varied how soon the participants would read the articles before rendering their verdict in the hypothetical case, from 3 days to 3 weeks.[18] Overall, 70% of participants found the defendant liable and awarded damages after reading their articles.[19] However, those who read an article with the highest award amount, $14.25 million, who also read the article shortly before rendering the verdict in their own case, awarded a significantly higher award in their own case.[20] To compare, those who read the $14.25 million article 3 days before their verdict awarded on average $1,286,000, which was significantly higher than all other conditions where awards ranged from $96,000 to $226,000.[21] From this, the study concluded that the availability heuristic was present, and that the participants’ easy recall of a verdict similar to the case they were told to decide; heavily influenced their decision making.
Two Biases? Double Trouble
On their own, cognitive biases are already destructive disruptions to litigation and settlement outcomes. But unfortunately, cognitive biases do not exist in a vacuum, they work in tandem with each other to distort our perceptions of situations and lead us into hasty decisions. In one fell swoop, the availability bias forces us to assume that information we can recall quickly and easily is more likely, and then the confirmation bias doubles down on that recalled information by having us favor facts that confirm our beliefs. Between these two biases, attorneys and factfinders alike may find themselves in an endless loop: recall easily available information, confirm it to preexisting beliefs, recall that confirmed information.
Returning to the 2012 availability study: participants revealed that they were influenced by the availability bias when they recently read a case with a large award. Due to that article, those participants were not only able to easily recall the information about the large award, but this information also influenced what the participants viewed as a common award in product liability cases. It’s clear that the participants sought to confirm that their preexisting knowledge, the award amount they had read about, was accurate and as a result, awarded similar amounts as a hypothetical factfinder. If those participants are ever asked to render a verdict in a real product liability case, it’s highly probable that they would call upon their smashed knowledge of verdict amounts to make their decision, with all the discussed biases in tow.
And the ouroboros of bias goes round and round.
Even more worrisome, though this article has only discussed the interplay of confirmation and availability biases, there are 98 other cognitive biases that work together in our minds to warp our decision making and unravel litigation outcomes.
Luckily, there’s a solution. Where the courtroom is a mire of bias and uncertainty, Resolutn is a straightforward, innovative settlement solution. Resolutn mitigates cognitive biases to the fullest extent with its neutral, technology driven system that puts you in the driver’s seat. Don’t let your case get caught in the collision of cognitive biases. Choose a system that steers you in the right direction.
Learn more about how to upgrade your settlement experience with Resolutn on our Features tab.
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I’ve written similar articles about how cognitive biases can disrupt litigation and how Resolutn can help. Look at our Thought Leadership tab for these articles and for more ways Resolutn can upgrade your settlement experience.
[1] See generally, Thought Leadership, Resolutn, https://www.resolutn.com/thought-leadership/.
[2] A. Wilke, R. Mata, Heuristics and Biases: A Short History of Cognitive Bias, Encyclopedia of Human Behavior (Second Edition), 2012 (Summary found at https://www.sciencedirect.com/topics/neuroscience/cognitive-bias) (Referencing Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases, 185 Science 1124 (1974)).
[3] See Jeff Eberhard, Confirming Your Litigation Fears: The Impact of Confirmation Bias in the Courtroom, Resolutn, https://www.resolutn.com/confirming-your-litigation-fears-the-impact-of-confirmation-bias-in-the-courtroom/.
[4] Eberhard, supra note 3 (citing Erich Rudich & Shari Beltiz, Confirmation Bias and the Courtroom, Claims and Litigation Management (CLM) (Oct. 14, 2019) https://www.theclm.org/Magazine/articles/Confirmation-Bias-and-the-Courtroom/1885).
[5] Eberhard, supra note 3.
[6] Id.
[7] Id.
[8] Eberhard, supra note 3 (citing Erich Rudich & Shari Beltiz, Confirmation Bias and the Courtroom, Claims and Litigation Management (CLM) (Oct. 14, 2019) https://www.theclm.org/Magazine/articles/Confirmation-Bias-and-the-Courtroom/1885.)
[9] Why Do We Tend to Think That Things That Happened Recently Are More Likely To Happen Again?,The Decision Lab, https://thedecisionlab.com/biases/availability-heuristic (last accessed Dec. 9 2022) (citing Amos Tversky and Daniel Kahneman, Availability: A Heuristic for Judging Frequency and Probability, 5 Cognitive Psychology 207 (1973)).
[10] Tversky & Kahneman, supra note 9.
[11] The Decision Lab, supra note 9; Tversky & Kahneman, supra note 9.
[12] Id.
[13] The Decision Lab, supra note 9 (citing Amos Tversky and Daniel Kahneman, Extensional Versus Intuitive Reasoning: The Conjunction Fallacy in Probability Judgment, 4 Psychological Review 293 (1983)).
[14] Id.
[15] Judith Platania & Jessica Crawford. Media Exposure, Juror Decision-Making, and the Availability Heuristic, The Jury Expert (Nov. 28, 2012) https://www.thejuryexpert.com/2012/11/media-exposure-juror-decision-making-and-the-availability-heuristic/.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id.
[21] Id.