substance and style
Accounting for Cognitive Bias in Legal Reasoning: Part 2 by Pamela Keller
Cognitive Bias I
n one of my previous columns, I wrote about cognitive bias and how to account for it in your advocacy.1 This column continues with the topic of cognitive bias and how these mental shortcuts can affect our legal reasoning. Our work as lawyers requires us to draw reasonable inferences from specific facts and the application of law to fact. To help students develop this skill, we teach them to recognize the difference between facts, factual inferences, and legal inferences and to objectively examine those inferences to determine their reliability and strength. The process of drawing factual and legal inferences eventually becomes second nature. But sometimes when a process becomes second nature, we can rely too much on instinct and past experience. When we do, cognitive biases can infect our reasoning. Studies of judges have shown that cognitive bias can affect the reasoning of even the most experienced and thoughtful lawyers.2 Thus all lawyers, not just lawyers-in-training, must check their inferential reasoning to make sure inferences are strong and sound, and to make sure cognitive biases do not lead to unreliable conclusions.
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The Journal of the Kansas Bar Association
A cognitive bias can be described as a natural tendency our brains have — or a mental shortcut our brains tend to take — when we process and interpret information.3 Much research has shown that our brains routinely use mental shortcuts to simulate the results of logical reasoning, saving time and reducing cognitive load.4 The shortcuts are helpful because they allow us to operate without expending valuable mental resources, but if we are not careful, they can lead to flawed reasoning. A few cognitive biases that can operate when drawing factual and legal inferences are: Availability: Our brains make judgments about how likely something is based on how easily examples come to us.5 An example is more easily “available” to our brain if we have encountered it more frequently or if it was more memorable in some way (had more personal impact, for example).6 The information that is more available will be influenced by our direct experiences, exposure to information (through stories, books, movies, media, culture, etc.), and individual memories.7 For example, drug advertising that a person remembers can
