Entries categorized "My Mind's Playing Tricks On Me"

Follow the Leader

Law students show pluralistic ignorance in action.  The Wikipedia entry for "pluralistic ignorance" is pretty good: 

In social psychology, pluralistic ignorance is a process which involves several members of a group who think that they have different perceptions, beliefs, or attitudes from the rest of the group. While they do not endorse the group norm, the dissenting persons behave like the other group members, because they think that the behaviour of the other group members shows that the opinion of the group is unanimous. In other words, because everyone who disagrees behaves as if he or she agrees, all dissenting members think that the norm is endorsed by every group member but themselves. This in turn reinforces their willingness to conform to the group norm rather than express their disagreement. Because of pluralistic ignorance, people may conform to the perceived consensual opinion of a group, instead of thinking and acting on their own perceptions.

There were probably many students thinking, "Does Volokh really want my phone number?  If so, why?  I probably shouldn't give it.  But no one else would agree, so I should follow the pack.  I don't want to be the lone dissenter." 

How is pluralistic ignorance relevant to the law?  What if you have a juror in a criminal case who doesn't want to vote guilty.  She assumes everyone else does, so she does not share her views.  She follows the herd, voting guilty.

Group think is something to always remain mindful of.  This is especially so for trial lawyers, since what is a jury but a group of people? 

The flip side holds true for prosecutors.  In a closing argument, a prosecutor might want to argue: "How can anyone think there is reasonable doubt after hearing all of this evidence?  Really?  Could anyone think that?"  Maybe one or two jurors do see reasonable doubt.  Will any juror speak out, if she thinks everyone else disagrees with her?  The research shows that it's unlikely.

In criminal law, where one juror can hang the jury, lawyers must be particular attention to group dynamics.

Logical Lawyers

The ABA Journal reports (via Ted Frank) that lawyers, suffer from cognitive bias:[1]

The group [of lawyers] also suffered from a problem known as “anchoring,” which is the tendency to be influenced by suggestion when estimating an unknown number such as the value of pain and suffering.

A hypothetical described a case involving a school teacher who lost his arm in an accident. Half were told that the plaintiff offered to settle for $100,000, and the other half learned of a $10 million settlement offer.

A majority of the $100,000 group said a judge would assess the value of pain and suffering between $500,000 and $2 million. But a majority of the $10 million group went higher, saying the value would be between $1 million and $5 million.

The lesson for lawyers, said U.S. District Judge Andrew Wistrich of Los Angeles, is “the more you ask for, the more you get.”

We could be flip by saying that, “Lawyers are people, too.” 

Should we tolerate this?  Should people who are paid to analyze facts and law allow cognitive bias to rule?

While the Journal's report might be upsetting, it should not be surprising. It’s been shown that doctors suffer from cognitive bias.  What your doctor is too biased to see what might kill you.

Cognitive bias is not an incurable medical condition.  Like other biases, it’s something that we can often escape.  Our minds pull us in the wrong direction; but knowing right from wrong, we can steer ourselves to the right lane.

Yet law schools do not offer any remedies.

Although law professors will proudly proclaim that they teach students to “think like lawyers,” formal critical thinking is not taught.  What are the major formal and informal logical fallacies?  What is a categorical syllogism?  How do you determine if someone is getting something right because of some specialized knowledge, or just due to chance alone?

If “thinking like a lawyer” means “thinking critically,” how can law professors credibly claim to teach students to think like lawyers when they do not teach basic logic?

Things like formal and informal fallacies are basic.  Yet none of that stuff is taught in law schools.  The exciting psychological research dealing with stuff like anchoring?  Forget about it.

The message to lawyers and would-be lawyers is pretty simple: If you want to be better than your peers, learn to think.

[1] In the comments section, I'll show that we'd suffer from cognitive bias if we ignored the flaws in the Journal's report.

The Drunkard's Walk: How Randomness Rules Our Lives

A law firm recently hired an all-star associate.  She is a terrific writer, a soldier researcher, and a great listener.  She has screwed up two consecutive assignments in a row.  What are the odds that someone who is supposed to be so good would perform so poorly?

You just hired a dullard to do yeoman's work around the office.  He found two nuggets that lead to substantial trial verdicts.  Is this guy an undercover genius, or what?

You're a trial lawyer who wins 80% of your cases.  You've dropped the last three in a row.  Is this a negative trend?  Have you lost your magic?  Or is something else at work?

If you were like me, you'd likely not know what to do with the above problems - other than rely on "gut instinct" or some other mechanism that substitutes for actual analysis.   Statistics is something I was woefully ignorant of.  I never saw much value in it.  But statistics should play a role in everyday life. 

Enter The Drunkard's Walk: How Randomness Rules Our Lives.  In The Drunkard's Walk, Leonard Mlodinow explains the origins of and modern state of statistics and probability:

In this irreverent and illuminating book, acclaimed writer and scientist Leonard Mlodinow shows us how randomness, change, and probability reveal a tremendous amount about our daily lives, and how we misunderstand the significance of everything from a casual conversation to a major financial setback. As a result, successes and failures in life are often attributed to clear and obvious cases, when in actuality they are more profoundly influenced by chance.

Why care?  For one, statistics is practical.  Experts are always throwing around statistics in the courtroom; these numbers prove something.  Or so they say.  Are they lying? 

For another, it frees us from superstition.  Yes, I said superstition. 

We often cause-and-effect relationships that do not exist.  Very often what we are observing are simply a clustering of random events.  If you flip a fair coin, and the coin lands on heads three consecutive times, does that make it more likely that the next flip of the coin will be heads?  Is there some unknown force causing heads to keep coming up? 

Believing that a slot machine is "due," or that a dealer is "hot," or that you're having a strand of "bad luck" is superstition.  It's silly.  It's the belief in something false.  Why not rid your brain of these silly superstitions?  The Drunkard's Walk will help you.  Check it out.

Incidentally, Leonard Mlodinow gave a talk at Google.  You may watch it below:

Thirty-Second Memory Test

Please read and memorize the following words: bed, rest, awake, tired, dream, wake, snooze, blanket, doze, slumber, snore, nap, peace, yawn, drowsy.  Look away from the screen and write down the words you remembered.

Once you've done so, please highlight this paragraph as if you were highlighting a paragraph in Word (double-click and drag your mouse down): If you're like most people, you remember the word sleep.  Guess what: Sleep was not one of the words listed.

That's the Deese-Roediger-McDermott (DRM) effect (described here), and it's a powerful way of illustrating that we can all be tricked into creating false memories.

Dan Ariely, Author of Predictably Irrational, Gives Incredible Talk at Google

The author of Predictably Irrational recently gave a fantastic talk at Google.  His optical illusion metaphor is brilliant.  It's amazing that we are willing to recognize that we "fall" for optical illusions (actually, it's impossible to not "fall" for them), but we assume that our brains are infallible. Yet our brains are what control our visual perception!

Towards the end of his talk he shows that most of us are petty criminals.  And that in the aggregate, those of us who otherwise consider ourselves to be law-abiding cause more economic harm than every blue collar criminal combined.  Fascinating stuff.