Washington Lawyer - September/October 2020 - 34

FEATURE
For insights into why clients often ignore the advice of counsel, and
for clues as to what practitioners might do to counter those impulses,
lawyers can look to psychology. Not the stereotypical "tell me about
your mother" variety, but contemporary psychological science, the study
of behavior and mental processes - influenced by factors such as brain
structure, the social environment, and evolutionary history - using
rigorous research methods. Three research areas that are particularly
relevant to understanding the behaviors of clients are cognitive bias,
decision making, and persuasion. Here we examine how psychological
concepts from these research areas may explain why clients sometimes
make decisions that seem to directly contradict counsel's advice.

CONFIRMATION BIAS
Every day we are bombarded with heaps of information - from the
news, social media, personal conversations, professional consultations,
and observations of the physical world around us. However, our attention and memory are limited in capacity, and we often develop mental
shortcuts to effectively process information. One such mental shortcut is
"confirmation bias," which refers to the tendency to seek out and interpret information in a way that confirms our existing beliefs or expectations while minimizing information that contradicts our beliefs.2 This
process is often referred to colloquially as "counting the hits and failing
to note the misses." Crucially, we do not even consciously realize we are
doing this.3 Once we form a belief or expectation, confirmation bias
serves as an information filter that affects how we interpret incoming

In law, the SUNK COST
FALLACY may come into play
when clients have already
INVESTED time, money,
and effort into a proposed
course of action.

34 WASHINGTON LAWYER

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SEPTEMBER/OCTOBER 2020

information and what information we remember, and this bias can occur
in both everyday life and professional settings.4
A common example of confirmation bias occurs among people who
hold negative stereotypes about a minority group. We would say
confirmation bias is at play when a person pays more attention to
negative behaviors of that group, interprets positive behaviors as
exceptions to the rule, and remembers more examples of negative
behaviors - all while failing to notice similar negative behaviors from
individuals in the majority group.
Confirmation bias also manifests itself in the context of the attorney-
client relationship, often in cases of potential litigation. For example,
a business owner calls his lawyer one day to complain about the
business practices of a competitor that the client vehemently believes
is causing his company to lose customers. The client is very keen to file
a lawsuit against the competitor. However, after reviewing the matter,
counsel advises the client that, while frustrating, the actions of the
competitor are not really actionable (i.e., the law provides no remedy
for the perceived wrongful acts), and that a claim for unfair competition,
deceptive trade practices, defamation, etc., is highly unlikely to succeed.
Nevertheless, so sure that what the competitor is doing is not right
(seemingly confirmed by some anecdotal examples the client read
on the internet), the client tells his lawyer to proceed with drafting
a complaint anyway.5 In this example, the client's decision making
has likely been affected by confirmation bias.
Washington Lawyer - September/October 2020

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