By Dr. Ken Broda-Bahm:
In 1620, Francis Bacon wrote in Novum Organum, “The human understanding when it has once adopted an opinion…draws all things else to support and agree with it. And though there be an increasing number and weight of instances to be found on the other side, yet these it either neglects or despises, or else by some distinction sets aside and rejects…” Today, we call that "confirmation bias," and it applies as much now as it did in 1620. In fact, you could say that we are now in the "Affirmation Age," -- well beyond the information age, we're at the point where just about anyone can easily find information that supports their existing views. So having the world at our fingertips just means that we can affirm our existing opinions whenever we need to. As Joe Keohane wrote in "How Facts Backfire," "It’s never been easier for people to be wrong, and at the same time feel more certain that they’re right.”
This tendency to notice, seek out, and remember information that confirms our beliefs naturally applies to jurors deciding your case, but it also applies to lawyers. As a recent Above the Law column notes, decision making within a legal practice can also be determined by this all-too-human tendency. If you're not sure about your own inclinations toward confirmation bias, you can even take a test offered by the New York Times. New research from the University of Iowa (Cipriano & Gruca, 2014) shows that even in the face of new information showing their earlier beliefs were wrong, and even when that error costs the study participants real money in an investment, research participants will stubbornly cling to those initial beliefs. The experiment asked students to predict weekend box-office receipts for new movies and then buy and sell real money contracts based on those predictions. After making an estimate, participants tended to ignore new information on actual box-office receipts if that information was at odds with their earlier and less-informed predictions. Lawyers are in a parallel position of making early predictions, often with incomplete information: They handicap a case, assess a witness, or make an early judgment on a potential juror, and that estimate inevitably starts to form before all of the data is in. This post shares some thoughts on ways attorneys can work to check their own confirmation biases in these areas.