Addressing Bias in Legal Cases Using Behavioral Science

TASA ID: 22108

On February 1, 2023 at 3:00 p.m. (ET), The TASA Group, in conjunction bias and decision making expert Dr. Gleb Tsipursky, presented a one-hour interactive webinar presentation, Addressing Bias in Legal Cases Using Behavioral Science, for all legal professionals.

Learning Objectives

•        Learn about a number of prominent cognitive biases that can cause problems in legal cases

•        Assess where bias, explicit and implicit, might be a problem in your legal work

•        Understand peer-reviewed best practices for addressing bias in legal cases

•        Develop a plan to integrate your understanding of cognitive biases and how to address them into your legal work

About the Expert:

Dr. Gleb Tsipursky is a cutting-edge expert with a PhD in bias and decision making. Trained in the Daubert standard, he offers expert witness services in employment law, organizational and industrial psychology, risk management, jury selection, and public procurement, where he served as a star witness in a $23 billion bid protest case. The best-selling author of 7 books, he is best known for his two global best-sellers Never Go With Your Gut (Career Press, 2019) and The Blindspots Between Us (New Harbinger, 2020). He has over 650 articles in prominent venues such as Harvard Business Review, Fortune, USA Today, Time, Scientific American, Psychology Today, and Forbes. He also published over 30 peer-reviewed pieces in academic venues. His work was translated into Chinese, Korean, Russian, French, and German.

Note: This webinar was approved for CLE credit in CA, NJ, PA, and IL.

Disclaimer: Please remember that if you are applying for CLE credit you must attend for the full 60 minutes of the LIVE presentation, not the ONDemand version. If a participant is seeking credit in states we are not approved to issue credit and the participating party seeking credit incurs a fee to receive said credit, it is not the obligation of TASA to remit payment for such credit. It is the participant's obligation to remit payment to the state in which they would like to receive credit.

Transcription: 

Dr. Gleb: Hi, Najah.

Najah: Hi, Dr. Gleb. How are you?

Dr. Gleb: I'm doing well. So, we have a couple of people also arriving early. Totally fine. Okay, good.

Najah: Yes.

Silvio: Hello.

Dr. Gleb: Hello there.

Silvio: My name is [crosstalk 00:00:24.937].

Dr. Gleb: Good. For the tech check...

Najah: So, yeah everything looks fine.

Dr. Gleb: Good.

Najah: I can see you. I'm operating [inaudible 00:00:37.477] but I can see you. And you could hear me and I can hear you.

Dr. Gleb: Yeah. Okay. Good.

Najah: So any issues, coming on, but the first like few minutes, let's say like four minutes, I'm just going to be going over, you know, what the presentation is about and then who you are and then the passcode that the attendees need for today. Yeah, and that's pretty much it. I think everybody knows about Zoom, but I'll go over, you know, how they can just type in their questions in the chat area.

Dr. Gleb: Sounds good.

Najah: Awesome.

Silvio: [inaudible 00:01:25.551].

Dr. Gleb: Okay. Good.

Najah: Do you have questions or anything or you're pretty good?

Dr. Gleb: No. I will make you the co-host and so some people will... So, please make sure if someone has their microphone on accidentally, please make sure to mute them and...

Najah: Okay, I will.

Dr. Gleb: Yeah, you can click on the participants and mute. Yeah, otherwise, sounds good. Okay, good. We're all good.

Najah: Awesome.

Dr. Gleb: Great. And then I will take a break and I'll be back a couple of minutes before the [inaudible 00:01:54.278] hour.

Najah: Okay, great. Thank you, Dr. Gleb.

Dr. Gleb: Sure, Najah. All right.

[00:02:02.085]
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Man 1: [inaudible 00:14:25.476].

Junwoo: Sorry, give me a second. What in the world?

[00:14:42.137]
[silence]
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Man 2: [inaudible 00:15:47.656]. That must be established first. Let's play it again.

Man 1: [inaudible 00:15:54.918].

[00:15:58.923]
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Neil: [inaudible 00:20:48.453].

Man 3: Hi, Neil.

[00:20:57.756]
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Dr. Gleb: Just another couple of minutes before we start everyone. Still, waiting for all the folks to gather.

Najah: Good afternoon and welcome to today's presentation: "Addressing Bias in Legal Cases Using Behavioral Science." The information presented by the expert is not to be used as legal advice and does not indicate a working relationship with the expert. All materials obtained from this presentation are merely for educational purposes and should not be used in a court of law.

In today's webinar, Dr. Gleb will help you learn about a number of prominent cognitive biases that can cause problems in legal cases. Assess where bias, explicit and implicit, might be a problem in your legal work. Understand peer-reviewed best practices for addressing bias in legal cases and develop a plan to integrate your understanding of cognitive biases and how to address them into your legal work. Dr. Gleb Tsipursky is a cutting-edge expert with a PhD in bias and decision-making. Trained in the Daubert standard, he offers expert witness services in employment law, organizational and industrial psychology, risk management, jury selection, and public procurement, where he served as a star witness at a $23 billion bid protest case.

The bestselling author of seven books, he is best known for his two global bestsellers, "Never Go With Your Gut" and "The Blind Spots Between Us." He has over 650 articles in prominent venues such as "Harvard Business Review," "Fortune," "USA Today," "Times," "Scientific American," "Psychology Today," and "Forbes." He also published over 30 peer-reviewed pieces in academic venues. His work was translated to Chinese, Korean, Russian, French, and German. Attendees who require a passcode, the word for today is bias, B-I-A-S. During the Q&A session, we ask that you enter this passcode into the chat for CLE reporting purposes. Please remember, too, that if you are applying for CLE credit, you must log onto your own computer as yourself and stay for the full hour of the presentation. Tomorrow morning, I will be sending out a link to the presentation today. And just remember too at the end of the program to complete the survey. Dr. Gleb, the presentation is now yours.

Dr. Gleb: Excellent. Thank you for the kind introduction, Najah, and thank you everyone for coming out to talk about bias. So, we'll talk about the definitions of bias, but let me give you a preview of what you can expect. First, we'll talk about some specific ways, some specific forms that bias takes in legal cases. We'll talk for examples and then we'll talk about the framework, what is the reason for bias, what is the actual problem leading to it. And then we'll talk about some more examples, of how they can undermine legal cases, all sorts of areas. And we'll finally talk about how plaintiff and defendant advocates, counsel can use bias to their own advantage and defend against claims of bias against their clients. So, without further ado, let's talk about some specific examples. And I'm going to talk about something called the Framing Effect for a question, I want to ask all of you.

I will be doing a poll so, get ready for a poll. I want you to think about if you have an option. So, let's say you've finished this presentation and you're going to go and have a mid-afternoon snack and you open your fridge and you see that there are two ice creams. One says it contains 10% fat and another says it's 90% fat-free. So, 10% fat or 90% fat-free. Which of those sounds more appealing to you? Just what would you feel? What would be more appealing? What would you like to eat more? Would you like the one that's 90% fat-free or the one that contains 10% fat? Please go ahead and vote.

So, about two-thirds of us participated. Let's give five more seconds for also haven't made their voice heard yet. All right, so we see that the large, large, large majority of us just on around three-quarters would prefer the 90% fat-free. Only about just over a quarter would prefer 10% fat. So, why is that? We see that there's a very clear preference, but, of course, when we think about it, 90% fat-free means it contains 10% fat, and contains 10% fat means it's 90% fat-free. But there's a very clear preference, where very clear, intuitive preference for a certain outcome. And someone says that fat is delicious. Well, most people do not think that they would like fat even if it is delicious. So, why is that? Of course, 90% fat-free sounds better because fat is something that is in our culture and our discourse perceived as a negative thing leading to weight gain and so on. Even though it's the same thing, 90% fat-free, if you put that on your marketing, your brochure, the can of ice cream, you'll get many or less people buying it.

And the same thing applies very much to juries and even judges that the framing that you use, how we see and determine the world is really influenced by the frame. So, you frame something as 90% fat-free versus 10% fat, and you'll have people making very different decisions. So, think about how different framings can shape our perspective on legal cases. The framing effect is something you really need to be thinking about. So, as lawyers, how are you framing the information you present to the jury? How are you framing the information you present to a judge? I mean, you might think judges are rational and all, but we have extensive research showing that judges are strongly influenced by various dynamics related to bias. For example, there was a famous study in Israel that evaluated judges giving parole sentences. So, deciding on paroles or sentencing someone to prison for more time.

And what the researchers looked at was their consistency in sentencing throughout the length of a day. They found that judges give very different sentences for prisoners who appear otherwise the same. Same conditions, similar crimes, and so on throughout the length of the day. In the morning, the judges are very lenient comparatively speaking to the rest of the day. So, they're more likely to grant parole. Now as it progresses, the morning goes into the later morning, just goes into the early afternoon, they get progressively more restrained and risk-averse. Then they take a break for lunch and then the number of people who are granted parole proportionately speaking shoots up again.

So, again, same people, same cases, comparative cases, controlling for the severity of the crime. It shoots up again and then it progressively goes down throughout the rest of the day. And so by the end of the day, the judges are quite unlikely to grant parole to folks. And so this shows you that judges are very much influenced by energy levels, by willpower. These factors, which really shouldn't influence judges, right? Rational people. But judges are just as influenced as the rest of us by bias. And so are lawyers and so very much are juries. Juries are more likely of course to be influenced by bias than judges and lawyers who are at least trained to address bias. But if you don't know about these cognitive biases, you are still going to be vulnerable like the framing effect.

Let's talk about another one. So, you might remember the famous line from the OJ Simpson case. "So, if it doesn't fit, you must acquit, right?" So, that's a very famous line, I hope you remember that situation. Let me share with you an example from that case. So, hopefully, that will remind folks who might not remember it. You should be able to see my video now and I will share the sound as well. So, this is coming from the OJ Simpson case in the mid-1990s when OJ Simpson was on trial accused of the murder of his girlfriend. And this was a really famous situation where his defense lawyer was using what's called rhyme-as-reason effect. And this is talking about OJ Simpson's glove, which OJ Simpson tried on and it didn't fit supposedly at that moment. And so his lawyer is using what's known as the rhyme-as-reason effect to try to defend him to the jury. Let's listen to this clip.

Cochran: OJ Simpson in a knit cap from two blocks away is still OJ Simpson. It's no disguise, it's no disguise, it makes no sense, it doesn't fit. If it doesn't fit, you must acquit.

Dr. Gleb: So, "if it doesn't fit, you must acquit." It's what's called rhyme-as-reason and you might be surprised to know that's actually effective. We very clearly see that such phrases that have what's called cognitive fluency, that are easy to process, is something that people interpret to be more true. So, the easier something is to process, the easier our brain accepts certain information. For example, because it rhymes, or because it resonates with something we've heard before, or it matches our stereotypes and predispositions. Then people are more likely to perceive it as believable and create trust as trustworthy. And so this is something that you really wanna be thinking about.

Now, it might seem unfair if you are trying to think about what's fair and what's reasonable, and what's rational, but you're lawyers, you understand that rhetoric is a key weapon that you're using. And so in terms of rhetoric, something that you might not be realizing is that even judges, but especially juries will fall for the rhyme-as-reason effect, will fall for more broadly phrases that have cognitive fluency, ideas that have cognitive ease. The easier something is to process for a certain person, for a certain member of the jury, for a group of people or 12 jury members, then they'll be more likely to be swayed by it. And this is something that you really want to remember and hone in your legal presentation.

Now, here's the key, the framework. So, those are two examples of these dangerous forms of bias. And the key here is that most of our decision-making, whether we're jury members, whether we're lawyers, whether we're judges, all comes from our emotions. And we greatly underestimate the role of emotions in our decision-making. So, recent studies show that emotions drive 80% to 90% of our decision, how we feel, not how we think. That is what is at the heart of driving how we behave. When we do what comes naturally to us without using evidence-based decision-making strategies. And I'll talk about the evidence-based decision-making strategies involve learning about these cognitive biases so you can watch out for them and address them in your case. But if you don't learn about these things, you'll be vulnerable to them and so will the judges and the juries with whom you interact. And you wanna learn about these cognitive biases, the framing effect, the rhyme-as-reason effect in order to be much more effective and influential as a lawyer.

Now, let's talk about the forms of bias. I told you I'll define bias. There are two forms of bias. There's explicit bias. So, decisions that are based in preconceived, prejudged notions, something like explicit discrimination or let's say within a procurement contract if there's corruption there, if someone is being bribed under the table, something like that. So, it's something clear and explicit where there's a prejudged notion where someone is aware that they have a prejudged notion, that they are prejudging someone, and that there's a motive for them to prejudge someone.

Now, there's also implicit bias, which as the rhyme-as-reason effect is a form of implicit bias, and the framing effect of both forms of implicit bias. So, implicit bias has to do with us failing to protect ourselves, failing to address within our legal cases various forms of bias like the framing effect, like the rhyme-as-reason effect. And that leads to poor decisions and bad outcomes for ourselves and for others as well. So, we really need to be aware of these forms of bias and how they can be addressed. And so you wanna be thinking about various areas of law. When you're thinking about this, the framing effect, the rhyme-as-reason effect, all of these explicit and implicit forms of bias, they apply everywhere in law. In employment law, it's so common. When I'm an expert witness for racial discrimination, age discrimination, LGBTQ, discrimination, sexual discrimination.

I mean there's so much that I see of this explicit and implicit bias alike. But public procurement, when procurement officials are not on top of protecting their procurement process from bias. It happens so often. Like I said, Medicaid offered $23 billion for this Medicaid case. The key here is that the procurement officials didn't protect the process from bias. Jury selection. I mean, you'd really wanna know whether and how your jury might be biased. And so learning about these biases will help you learn about more effective jury selection. Criminal defense. Like I said, we just had the example with the case. You know, "If it doesn't fit, you must acquit, right?" OJ Simpson. Business decision-making, there are so many biases. I do consulting for businesses and business leaders very often are taught to go with their gut, follow their intuition, and that leads to a lot of problems in their business decision-making that leads to a lot of legal cases.

I mean the big, big one right now is that FTX, the crypto exchange collapsed because Sam Bankman-Fried made some decisions with his gut that were very bad. And that's going to lead to a lot of lawsuits and lead to lawyers making honestly a lot of money from pretty biased decision-making by business leaders. Bankruptcy. So, that's talking about, there's fraud, there's all sorts of criminal cases in stock and so on, that lead to bankruptcy. A lot of laws around there. Police misconduct. Police unfortunately exhibit a great deal of biased behavior and biased statements. And we see this in the news now, the Tyre Nichols case, and many, many others. There's plenty of other areas, I'm not gonna go through all of them, but I think you can imagine them and you could think about how they apply to your own practice.

And the key here is that people like Sam Bankman-Fried, like judges, like jury members, like lawyers, are very often taught to go with their gut. Gurus tell us to go with our gut, follow our heart, trust our intuition, that whatever feels internally right is a thing that's likely to be true. So, there's an equation we equate what's good, what feels good in our gut, like this cognitive fluency. If something is easy for us to process, if it's cognitively fluent, we will feel internally that it's more likely to be true. We'll feel with our gut, that it's more likely to be true. If there's a framing effect, we will feel that one framing that something is 90% fat-free, that feels better to us, more pleasant, we want to eat it rather than something that contains 10% fat. So, trusting our gut feels very comfortable, but it can often lead to disastrous decisions because our gut intuitions did not evolve for the modern world.

They evolved for the Savannah environment, that ancient Savannah when we lived in small tribes of 50 people to 150 people. And that causes a lot of problems because in the Savannah environment, it was really important to be loyal to your own tribe members. If you weren't sufficiently loyal, well, you know, they might kick you out and then you would die and that's not great for you. So, we are the descendants of those who didn't die because they were sufficiently loyal and weren't kicked out. It's also very important to be hostile to other tribes because otherwise that tribe might take yours over and you would die as well. And you notice that we're descendants from those who didn't die. So, we're loyal to our own tribe and we're hostile to other tribal members. And a lot of these cognitive biases, these dangerous judgment errors stem from tribalists.

Another source of these dangerous cognitive biases is the fight or flight response to threats, which was very important for hunter-gatherers because the risks they faced were immediate, intense, in the moment, like the saber-toothed tigers. You might have heard of it as a saber-toothed tiger response. It was more important for us to jump at 100 shadows than to miss one saber-toothed tiger. So, right now we are very much triggered to jump at 100 shadows and to very strongly react to stimuli that are immediate, in the moment, but they might not be nearly as important as more contextual things. We have many less saber-toothed tigers in the modern world, but we tend to overreact to short-term stimuli, we make very quick decisions and we don't notice long-term impacts and trends. And that's very dangerous in today's world because the risks we face are much more long-term, uncertain.

They might come as a notification on your smartphone about some kind of, you know, news story about a disease that's sprung up in the middle of nowhere, China, right? That then eventually grew into a global pandemic that people really didn't anticipate because they didn't really think it through. People were honestly biased, they didn't think through that by the geometric expansion of the pandemic. And so this all relates to dangerous judgment errors that are called cognitive biases. So, this is what we're really focusing on here. Cognitive biases that come from our evolutionary background and how our brains are wired. Now, I want to ask you, did you ever make a bad decision and looking back, you realize you had the information to make a better decision? So, please go ahead and vote about that. Did you ever make a bad decision and looking back, you realize you had the information you needed to make a better decision.

Alan Sarkisian asks, "Do you think that the attorney was consciously using the rhyme-as-reason effect?" Absolutely. There's no question about it. He knew very well how to persuade people. He knew that things that rhyme are definitely going to persuade people. And it's something that it seems, you know, somebody had a smile or laughy face. It seems silly, you know, it might seem ridiculous, Alan, right? That something that rhymes is going to be persuasive. But what happens is that it sticks in people's heads. When they're in a jury room and when they're thinking, it will stick out in people's heads. It's kind of like an earworm song. You know, something that gets stuck in your head and that you keep hearing in your head.

So, people will keep hearing in their head, "If it doesn't fit, you must acquit. If it doesn't fit, you must acquit. If it doesn't fit, you must acquit" and it'll keep impacting them. It's surprising, but that's exactly what happens because it's cognitively fluent. No, thank you for it, Charles. So, yeah, he was given the line from one of the other attorneys on the team. Yes, it's a powerful line and that's an example of the power of the rhyme-as-reason effect. All right, so we see that most people participated. I'll give five more seconds for those who didn't yet, been sharing about an important topic.

All right, we see that this happened to the past vast majority of us, like over 90%. So, yes. So, then you can feel the impact of a cognitive bias because if you had the information to make a good decision, then, I mean I know this happened to me, you know, having the information needed to make a good decision but not making a good decision, that really happens. That comes from a place of cognitive bias. Because if he didn't have a cognitive bias, then he would've made the good decision, the right decision if he had the information available.

All right. Now, let's talk about another topic. And that's something that you might have thought about when you heard me start to speak. Not when you first saw me. I looked like a normal white, mainstream American male. But when you heard me speak, you might wonder where are you from. I'll be happy to tell you, I'm of Ukrainian and Moldovan heritage. So, Ukraine unfortunately is way too famous right now. It's that country right above the Black Sea. Hopefully, you know that. And Moldova is right below Ukraine to the Southwest of Ukraine. So, my dad is Ukrainian, my mom is Moldovan and they met and married and I grew up in Moldova. And so I was born in '81 and my parents came to the United States in 1991.

I was very glad that they came, especially in 1996 when I saw a World Value Survey that showed that Moldova was the least happy country in the world of all the countries surveyed. I don't know why it was the least happy country in the world, fortunately, I didn't grow up there. But I was especially glad that they left in '96 when I was 16, that I was not there at the time. So, we settled in New York City. So, that's home for me. And I grew up and my parents taught me to be proud of my cultural heritage. And so growing up in New York City, which it's a cultural melting pot, you know, you go a block, you hear a dozen accents. So, I chose to keep my accent because again, my parents taught me to be proud of my cultural heritage. And because it was just such a diverse city, you know. I live in Columbus, Ohio now. So, Go Bucks. If I lived in Columbus, Ohio when I was a kid, I probably would've chosen to work on dropping my accent, but I didn't.

For me, what I realized later was that when I later went and lived... So, I got a master's at Harvard, I got a PhD at UNC Chapel Hill. And when I was getting a PhD at UNC Chapel Hill, I came across something that made me regret not dropping my accent. The research on accent discrimination. So, accent discrimination, people who don't have a mainstream American accent, especially people who have a foreign accent are perceived as less trustworthy. So, it's a false perception, of course, people who have a foreign accent are not actually less trustworthy, but it is there. It is a false perception of being less trustworthy. And that's something you really need to know about as lawyers, as you're thinking about this, as you're communicating to others. It's a false perception and it's part of a broader dynamic of cognitive biases called the Halo Effect and the Horns Effect. The Halo effect, and the Horns effect.

The Horns Effect refers to someone having little horns. If you dislike one characteristic, like someone's accent, someone's ethnicity, their appearance, their religious values, their cultural background, then you'll tend to dislike that person as a whole. You will tend to not trust them. Of course, this all comes from tribalism. Remember it was very important for us to be hostile to other tribes. So, if it's something that is different than you, something that signals that that person is not from around here, that they're different from your tribe, you'll tend to not like them as much, not trust them as much.

The Halo Effect is the opposite. It's kind of like someone has a little halo on their head. So, if you like one characteristic of someone, you'll have too positive views of their other characteristics because it'll seem like they're part of your tribe. So, you can see the obvious negative implications for legal cases, right? Let me give you an example of how this works out in real life. Patricia, thank you. I appreciate you saying that. Yes, I do still have some family in Kyiv and currently they're safe. Hopefully, they will continue to be safe. They definitely have some electricity shutoffs given Russia's bombing of the electricity substations and that's definitely an issue. But so far they're safe. I thank you for checking on that.

Okay, so the context is for this video, I was giving a presentation to the Central Ohio Human Resources Association. This was their Annual Diversity Inclusion conference. There's over 100 people here. I'm giving a closing keynote to over 100 HR leaders who came to a diversity inclusion conference. So, obviously, they're passionate about this topic and I'm talking about hiring people. And for the context, Central Ohio is the home of the Ohio State Buckeyes. So, Go Bucks, right? And that is something that's very important because I'm asking them about whether they would hire someone from the University of Michigan. The University of Michigan is our longtime big rival just up north, unfortunately, they beat us last year, so hopefully, we'll get them back this year. So let's see what happens when I ask over 100 leaders of HR whether they would hire a University of Michigan fan. And remember, they're located in Central Ohio, so they're Buckeyes fans. So, as you know, I'm a professor at Ohio State. I'm contractually obligated to root for the Buckeyes. I'm guessing there are a lot of Buckeyes fans here. You know, Go, Bucks, right?

Together: O-H, I-O.

Dr. Gleb: There you go. Now, how likely are you to hire a Michigan fan? See? Three people. So, that's 3 people out of over 100. Pay attention those of you who are on employment law. Now, regardless of how we feel about Michigan fans and their poor pork choices in which team to root for, does that indicate anything about their performance as an employee?

Together: No.

Dr. Gleb: No, I know. Come on. That no should be stronger. So, as you saw, I gave them an opportunity to change their mind. Only 3 people out of over 100 would hire a University of Michigan fan. I gave them a chance to change their mind and they wouldn't change their mind. They're clearly sticking to their positions. Now, this is about fandom. This is about which team you root for, right? Talk about tribalism. It seems like it's completely insignificant from an HR perspective, from the hiring perspective, but clearly, this made a huge difference. So, think about more significant things like race, ethnicity, gender, ability, and so on, and why lawyers with employment law on discrimination have so much work. The Halo Effect and Horns Effect are incredibly important to understand and remember. And if HR folks, and especially business leaders don't have training in cognitive bias and the Halo effect and Horns effect and aren't watching out for it, then they'll be making mistakes right and left.

Now, let's talk about another one, the confirmation bias. Our instinct when we look at reality is to see the world through rose-colored glasses. So, we tend to search for information that confirms our beliefs and reject information that challenges our beliefs. So, confirmation bias is something you really wanna be thinking about as lawyers, it's omnipresent in legal situations, lawyers on one side, lawyers for the plaintiff tend to look for information that supports their case as lawyers for the defendant tend to look for information that supports their cases. Of course, you're advocates. But what I see lawyers as not doing sufficiently is looking for information where their case is weak and trying to plug the gaps in their case. And of course, there's so much stuff that goes on with how the juries make their decisions, how judges make their decisions that is very much impacted by confirmation bias,

Anchoring bias. This is a huge one. So, the initial piece of evidence to get by a topic is incredibly important. It's much, much more impactful than the specific evidence than the subsequent evidence. Because subsequent evidence is all assessed through the lens of the first thing someone learns. So, which makes it a very much stronger case for let's say moving jurisdictions. So, the jury knows something about a jurisdiction. So, first impressions are key. That's why it's very important to think about what kind of first impression you give a jury. It's very important to think about what the jury knows. It's also very important to think about what the judge knows and how they will be making their decisions. So, the anchoring bias is a very, very powerful tendency that can definitely strengthen or undermine legal cases. And you wanna be aware of it and use it effectively. Now, let's talk about our attention. I'll share another brief video. Now, this one's kind of self-explanatory. So, what I'll ask you to do is count the number of times that players in white pass the ball.

Daniel: The monkey business illusion. Count how many times the players wearing white pass the ball. The correct answer is 16 passes.

Dr. Gleb: So, 16 passes. So, for those of you who have got it right, for those of you who got it wrong, the correct answer is 16 passes. Let's go on.

Daniel: Did you spot the gorilla? For people who haven't seen or heard about a video like this before, about half missed the gorilla. If you knew about the gorilla, you probably saw it. But did you notice the curtain changing color or the player on the black team leaving the game? Let's rewind and watch it again. Here comes the gorilla and there goes a player and the curtain is changing from red to gold. When you're looking for a gorilla, you often miss other unexpected events. And that's the monkey business illusion. Learn more about this illusion...

Dr. Gleb: Okay, so let's think about our attention. Now, I'm curious in the messages, how many people share, if you saw either the player leaving the game or the curtain changing color, go ahead and please share in the chat. Yes, so one of the two. Okay, so Erin noticed the curtain. Let's see. Okay, Patricia noticed the player leaving the game. A couple of people noticed the player leaving the game. So, the curtain changing color. I don't think anyone yet saw all three. A couple of people saw either the player or the curtain. But yes, so the gorilla and the player, or the gorilla and the curtain, but not all three. Okay, so Lawrence says he saw the curtain and the player leaving. Excellent. That's pretty rare and speaks a lot to your attention.

So, where is your attention? Let's go on. You want to be thinking about cognitive bias called the attentional bias because we pay attention to what we feel is most emotionally salient regardless of whether it's the most important thing. So, we often miss other important information about the context. When it's a legal case it's pretty obvious that it's very easy to pay attention to what's emotionally salient. When our attention is drawn to the ball, counting of the ball, we'll tend to focus on that. And sometimes we'll miss something as huge as a gorilla, but maybe we won't. I mean, it's kind of like the saber-toothed tiger response. It's important to pay attention to a big creature like that. So, some of us will see the gorilla, but it might be very important to understand what's happening with players leaving the game.

And it might be very important to see what's happening with other people on the team. The dynamics, curtain changing color, the context changing, lots of things we might not notice about a legal case. Lots of things that the juries might not notice. So, think about the jury or the judge when you're presenting a situation to them, presenting the information. How can you draw then their attention to the things that you want them to pay attention to? And think about what's going to be most likely to be emotionally salient to them. Because they will likely just be paying attention to that whatever they feel is the most emotionally salient. And so the attentional bias speaks to how we can influence and manage other people's attention and how our attention tends to be misled very easily. Like with the gorilla and so on, curtain changing color. And we missed really important dynamics of what's going on.

Now, before we talk about dealing with bias in legal cases, I want to ask you... So, Jeffrey asks, what makes a gorilla important? So, from the savannah perspective, from the savannah environment, you know, it was pretty important if a gorilla was coming into the middle of your tribe. You know, they might snatch away a baby, you know, steal your food or something like that. Gorillas are very strong, so you definitely want to be aware of it. All right, let's vote on which of these cognitive biases discussed so far do you think might have the biggest relevance for your legal cases. Framing effect, rhyme-as-reason effect, confirmation bias, anchoring bias, attentional bias, or the halo and horns effect. Please go ahead and vote. Which of these do you think might be the most important? And don't forget, as Najah points out, typing the passcode, which is "bias" into the chat. So, the passcode is "bias." If you didn't type it yet, please do. If you already did, no need. Let's see, we have about two-thirds of us voting. Let's make sure to give five more seconds. So, besides typing the "bias" into the chat, make sure to vote.

Ellen. Yeah, I can imagine that it was hard to select just one. Okay, so we see a pretty good distribution. You know, we're starting from just around 10%, 9% with the rhyme-as-reason effect, going to the anchoring bias and the halo and horns effect, and then three tied for the first place. Framing, effect, confirmation bias, and attentional bias. And that's important for you to know all of these things. And Patricia says, they probably all come into effect depending on the case. Of course, so I'm just asking in your experience, what's the most important one so far? Okay. Let's talk about dealing with bias. It requires a thorough understanding of these biases, of course, both the specific biases themselves and the underlying mental framework leading to these biases. And I'll send you all a copy of my book, or the books on these topics so that you can get that understanding.

Obviously, just this presentation itself, there's over 100 cognitive biases. There's 30 that are really important for legal cases, all sorts of professional settings. You'll get my books, they will talk about them. If you are representing the plaintiff. So, let's talk about both sides. If you're representing the plaintiff, what do you do? You wanna look for biases that might have caused the defendant to make bad decisions. That's key for you, because you are, of course, if you are representing the plaintiff, you're going to be under attack. So, when I represent the plaintiff in employment law, public procurement, when I deal with police misconduct, there's a lot of time focused on looking for biases that might have caused the defendant to make bad decisions that harmed your client. And so what you want to do is show, demonstrate that the defendant didn't take the steps necessary to learn about the biases and then protect from these biases and therefore made bad decisions.

And again, making bad decisions stemming from implicit biases, what we're talking about here. And sometimes these cognitive biases, of course, will lead to explicit bias. So, it depends on the situation. Sometimes it's going to be explicit, sometimes it's going to be implicit. And we see an employment law, implicit bias is everywhere and it also definitely takes place when you wanna think about police misconduct, when you think about jury selection, when you think about business decision-making. Oh my, well, gosh, there's so much implicit bias there, and explicit of course. So, you want to support your case of the defendant's liability, and you wanna be thinking about protecting your own client from bias. So, you want to protect from the areas of vulnerability in your plaintiff's claims. So, you want to look internally on your plaintiff's claims and see whether there might be accusations of bias and what you could do to prevent these accusations.

And of course, if you're representing the defendant, you're going to have the mirror opposite situation. You wanna start by looking for what the plaintiff will be looking for. So, you should be prepared for that case. Look for potential biases in the actions of your client to anticipate and address in advance claims of bad decisions, and demonstrate how your client took steps to address these biases. So, you'll reduce the likelihood of your client being held liable if you look for the biases and the claims of the plaintiff and show how the plaintiff made bad decisions. It's not the fault of your client, it's the plaintiff's fault. They fell into cognitive biases. So, that's the two areas that you wanna be thinking about. And I want to ask you, before talking about the free resources, what do you think would be the value of learning about and addressing bias in your legal cases? What would be not valuable, moderately valuable, or highly valuable? Please go ahead and vote.

Okay, good. Most people voted, five more seconds if you haven't voted yet. Okay, wonderful to see that over two-thirds of you think it's highly valuable, that's excellent. And others think it's moderately valuable, good too. So, only a little bit of 1% think it's not valuable. Excellent. Good to hear this. And then you'll get resources to help you. Now, if you are present here, don't worry about this, but if you're watching this after the recording, you can go to tinyurl.com/daeevent to get the resources. So, if you're watching the recording, that's where you can get the resources.

Now, I have a coaching session, so free slots are open, happy to give coaching on this topic. And I'll send two copies of my best-selling book. One's called "Never Go With Your Gut" and the other is called "The Blind Spots Between Us." And so both of them involve information about cognitive biases coming from different perspectives. So, you'll learn about these cognitive biases, you'll be able to watch out for them in your own practice, and you'll be able to bring them into their various cases, whether you're presenting the plaintiff or the defendant. I hope this has been valuable, and I'll be happy to take any questions at this stage.

You can type your questions into the chat, or if you would like to, you can unmute yourself and ask the question directly. Don't forget in the meantime to type bias if you have not yet. John, I'm glad that you enjoyed this. Glad to know that it was helpful. Jared says, "Answer where you poll your response is consistent with other audiences." Yes, definitely consistent. I've presented to other lawyers, and so definitely consistent with that. Craig asks, "Is there a starting point to deal with facts over emotions?" The starting point is within yourself. You want to be aware of where the cognitive biases are likely to be, and then you want to look at where other people are likely to make these mistakes. You'll never get over dealing with emotions. Emotions are always going to be part of our decision-making, but you want to understand where will you make the mistake and where will other people make the mistakes.

And then you wanna be thinking about how can you effectively deal with people given that they'll be making these mistakes. So, thinking from that perspective, I think is the most effective one. So, thinking in terms of within yourself, you can learn about these cognitive biases and address them, but your job is not really to teach others. You're not gonna go to a jury and say, "Hey, jury, you might be suffering from the anchoring bias. Let me teach you about the anchoring bias." You know you'll sound aggrandizing and you know, arrogant. No, but you need to know, it's kind of like underwear. You wear it, but you don't show it and you use it. And so you wanna know what's going on and how people will be vulnerable to these problems. Michael asks, "Is there a good time ever to go with your gut?"

Sure. So, if in a situation that's similar to the Savannah environment, it's a good time to go with a gut because it's similar to the Savannah environment. If you're crossing the street and suddenly you see a bus barreling towards you, and you know, if you're jaywalking or something like that, hopefully, none of you breaks the law. But you know, if you see a bus barreling down at you, you probably wanna get out of the way and not stand there and think about it. You just wanna go with your instinct and just jump out of the way of the bus. Or if you notice something flying at your head from the periphery of your vision, you probably don't want to take the time to stand there and think about whether you should duck. You should just duck. That's a fight-or-flight response.

Now, in a tribal response, if you know someone well, so they're kind of part of your tribe and you notice something being off about their behavior, something being weird, then you can start to get suspicious. Because we as human beings are wired to read our tribal members pretty well. That was very important for our survival. And so when you notice them behaving in strange ways, that's when you can sort of trust your gut and think, "Okay, you know, there's probably something going on here. I probably want to distance myself from the situation, wanna double-check, trust, but verify in that sort of situation." So, that's an example of tribalism where you want to give in to those responses.

So, Erin asks, "Have you ever assisted anyone where a motion would be filed to address any of these biases at trial?" Of course. I mean, in employment law it happens all the time. So, when I do of expert witness report, I would very much talk about cognitive biases and how my client, when I usually represent the plaintiff in employment law and how my client was hurt because of, let's say, halo effect, and the horns effect, all of these cognitive biases and so on in the public procurement case. Yes, of course, I talk about that very explicitly. So, I don't say, when I talk about the defendant making serious mistakes, again, representing the plaintiff. I talk about the defendant making serious mistakes in the form of cognitive biases. So, I educate the jury, I educate the judge, whatever it might be in the public procurement, it's going to be a judge in both cases and the employment law is going to be a jury about these topics and then make sure that they're addressed. So yes, absolutely.

Diane asks, "Are you aware of any testing done to determine our own personal biases?" So in the book, the "Never Go With Your Gut," there is an assessment on these cognitive biases for yourself to take and for yourself, for your workplace, for your group. So, you can take it and you can see what kind of impact it has on you. Alan asks, "I believe that overuse of rhyme-as-reason will be counterproductive. What do you think?" You probably don't want to be kind of like Shakespeare in the courtroom and have everything poetic, but you want to make sure that you use it sufficiently. Probably if you use it once every, you know, hour of time or several times in the case, then that should be effective or a couple of times during your closing testimony. You know, something like a couple of times during your opening testimony, and then several times, depending on the length of the case throughout the case itself. It's definitely going to be impactful. You want people to have their memory fade because you want it to stick, right? So, you wanna make sure the phrase you used sticks for some time while the jury or the judge is thinking about the situation.

So, Ellen asks, "Do I serve as a jury consultant like the TV show?" Well, sure, yes. I serve as a jury consultant and help address these issues when there's issues like tainted jury kind of evaluating these things. "Have you ever been involved in excusing a judge for bias?" I have not been explicitly involved. I have been asked about it, and I've talked about it, but never as an actual consulting expert. So, Sharon asks, "How can these concepts be applied in jury selection?" So, you want to be very much aware of things like the anchoring bias and things like the framing effect. So, you want to ask how the jury, when you're asking the jury questions, you want to ask about how the jury is framing the issue at hand. And the issue around framing is not something that I see lawyers typically ask, but it's a very powerful question. Because when you ask about the context and how the juror is thinking about this. The anchoring bias, you know, you wanna ask, what is the first thing you heard about this topic? So, thinking about these issues, these sorts of issues will let you know where the jury is. The attentional bias, you know, asking a potential juror what they think is the most salient aspect of this trial for them. That is, again, not a question I hear many lawyers ask, but it's a very powerful question. Again, gets at that bias.

So, conspiracy bias. So, not a formal bias of the conspiracy bias, but it's about pattern matching. So, one of the other things I didn't have time to talk about in this presentation and I do when I do a three-hour presentation on this topic to lawyers is pattern matching. That's another dynamic that's coming from our evolutionary environment. We as human beings are very much pattern-seeking machines. So, we look for patterns and we look for patterns in places where they don't exist. So, for example, pareidolia is a cognitive bias that has to do with us finding patterns in nature in the world that don't actually exist. So, we tend to oversee patterns much more than there are actual patterns.

So, Laura asks, how receptive are judges to these bias analyses? It depends on the area of law. I find that in employment law, they're very receptive. I mean, jury selection, definitely receptivity, in police misconduct, definitely in business, there's definitely some receptivity. So, business, bankruptcy, mergers, and acquisitions are somewhat less than employment law, partially because employment law, it's much more common to talk about bias discrimination. But definitely in business. In procurement, there's somewhat less receptivity because it's kind of a newer topic, but it's increasingly becoming accepted in procurement law as well. Okay, good. So, I don't see any other questions.

Najah: I don't either.

Dr. Gleb: All right.

Najah: Okay, great. Thank you everyone for attending. This was the first time that you know, the TASA Group used Zoom. We're coming up in the times. So, thank you for joining in. Like I said, I'll send the recording and the materials over tomorrow morning. There will be a survey at the end of this presentation that you can complete. And thank you so much Dr. Gleb for this presentation and for letting us use your Zoom.

Dr. Gleb: Of course, and thank you very much for inviting me. Thank you very much everyone for coming. All right, I'm glad that reports on a good experience.

Najah: Good day everyone.

Dr. Gleb: Good. All right, have a great day, everyone. Bye-bye.

Najah: Okay. Bye. Thank you.