As a litigator, I have to advocate. To advocate well, I have to be persuasive, and to be persuasive, I need to understand how people think when they make a decision. That led me to explore how we make a good decision and what gets in the way, resulting in a poor decision.

Because of that, I came across two terms that opened up a whole new world.

The first was ‘heuristics’, our hardwired shortcuts for making decisions quickly. Evolution, our condition and our environment shaped these shortcuts.

“[They are] judgmental shortcuts that generally get us where we need to go – and quickly – but at the cost of occasionally sending us off course.”

Amos Tversky and Daniel Kahneman

The second was ‘cognitive bias’, our inherent systemic bias caused by heuristics, which results in us departing from rational and reasonable thought and behaviour. An example is Confirmation Bias, when we look only for information supporting our argument or viewpoint. Another is Affect Heuristic, when we make decisions based on emotions, mood, and gut feelings instead of after giving them rational and reasonable thought. And there are many.

Further exploration drew me to a domain called behavioural science. This is essentially the study of human behaviour, including heuristics and cognitive biases. I needed to acquaint myself with it because it related to persuasion. To persuade someone else, we need to understand them as much as possible—how they think, decide, and behave. Behavioural science taught me that persuasion goes beyond finely wrought phrases, logical arguments, and meticulous references to fact, evidence and law. They are sometimes merely the decorations on the cake that can be rearranged, not the cake itself.

Persuasion goes into humans’ very being—the cake. Behavioural science taught me that persuasion doesn’t happen merely at the intellectual, conscious, and logical levels. In fact, more happens at the unconscious —the cognitive, psychological, and emotional levels. Those dimensions affect how we see a matter, think about it, and decide. If we are not self-aware and mindful of ourselves, they might decide and act for us.

Behavioural science is a branch of science that explores the cognitive processes within organisms and the behavioural interactions that occur between organisms in the natural world. It involves the systematic analysis and investigation of human and animal behaviour through naturalistic observation, controlled scientific experimentation and mathematical modeling. It attempts to accomplish legitimate, objective conclusions through rigorous formulations and observation.

Wikipedia definition

When I discovered behavioural science, I lessened my reading of books or articles about persuasion by lawyers, judges, or legal academicians. By then, I had read my fair share of books on legal advocacy. If you read enough of them, you will eventually realise that they all say pretty much the same thing. I still enjoy reading one now and again, but I rarely learn anything new from them. That’s not to say you should not read any, but there is only so much you can read about legal advocacy. But hey, if you want to read how I say the same thing, you can read The Malaysian Guide to Advocacy, which I wrote.

Instead, I was immersed in books that dealt exclusively with the science of influence, persuasion, rational thinking, nudging and decision-making, which had nothing to do with the law. Names like Amos Tversky, Daniel Kahneman, Richard Thaler, Robert Cialdini, Cass Sunstein, and Nicholas Epley became familiar. From them, we learn how we are likely to act if we are not self-aware in a given situation.

I often recommend Rolf Dobelli’s The Art of Thinking Clearly as an introduction to this area. It’s where I first learned those two terms I discussed earlier. This delightful book compiles common cognitive biases we are likely to encounter regarding others and, most importantly, ourselves.

Below are a few cognitive biases we commonly encounter in legal practice. This list is not intended to be exhaustive; it is just a taste to whet your appetite to discover the rest for yourself if you haven’t already. I enjoy converting cognitive biases insights into advocacy lessons or strategies as a means to constantly refine my advocacy and those I teach.

Information bias is the belief that more information ensures better decision-making.

This belief overlooks the fact that there is signal and noise with information. The signal is the information we want; noise is irrelevant information. The former makes the latter more challenging to discover.

Generally, the noise ratio is several times the magnitude of the signal; for example, information may contain one part signal and five parts noise (1 signal: 5 noise). So, more information results in more noise and a smaller signal, which means greater complexity and effort to discover.

This does not mean no information is better. We need some information to decide or act upon. What constitutes sufficient information differs for each of us. The law of diminishing returns applies to information. Reading more case law doesn’t necessarily improve our decision making.

Twaddle Tendency is the profligate use of words to mask intellectual laziness, stupidity, ignorance or egotism. Sophisticated and abstract words dazzle and distract from their eventual emptiness and alienation. This is a hallmark of insecure, incompetent and shyster lawyers. The bigger the words, the smaller the circle of competency.

The Dunning-Krueger effect occurs when we overestimate our limited competency or knowledge. For example, a lawyer who successfully ‘argued’ a credit card summary judgment application now thinks he is the lord of summary judgments. A judge who only skims the cause papers but thinks he has a firm grasp of the case. A panel of judges that only read the registrar’s summary and believe they comprehend the case as thoroughly as they should. All these examples are entirely fictional, by the way.

Chauffer knowledge is the appearance of being knowledgeable about real knowledge, which is personally acquired through studying, reading, experience, and contemplation.

An example of chauffeur knowledge is a television news reader. They appear to be knowledgeable about a diversity of current events. But they are just presenters. They have no insight other than what they are directed to read.

This is a common occurence in the legal profession with social media. Lawyers who regularly curate their legal practice on social media are likelier to possess chauffeur knowledge instead of real knowledge. Who knows more about the law, those spending time talking about it to the world at large, constantly, or those sitting down and reading up the law? All that curation takes time, effort, and energy that could also be spent acquiring real knowledge. What they reap in followers they lose in terms of legal knowledge depth and breadth. That’s the tradeoff.

Groupthink happens when everyone starts deciding and behaving according to an assumed consensus, and attacking anyone that disagrees with it. If you ever felt the need to keep quiet at a meeting or discussion despite disagreeing with what was going on for fear of triggering or provoking the majority view, welcome to groupthink. If you find yourself assailed aggressively by others for raising a different view, that’s groupthink. The bigger a group, the likelier groupthink happens.Big committees are vulnerable to this bias.

Another cognitive bias associated with committees is bikeshedding. That is the observation that people in an organisation commonly spend disproportionate amount of their time discussing trivial issues instead of important ones. It is also known as the Law of Triviality. Trivial matters are easy, accessible and do not require much thought to discuss. For those reasons they end up being discussed more often and longer.

I will end with déformation professionnelle. This is the tendency to look at things only from the point of view of one’s profession or expertise instead of from a broader or humane perspective. As lawyers, we have a tendency to look at things from a legal standpoint, failing to appreciate other viewpoints. In advising the client on a course of action, we concern ourselves only with proof, merit and success instead of how it may impact them psychologically and emotionally.

I encourage those I work with and teach to acquaint themselves with heuristics and cognitive biases. The more aware they are about our natural biases and fallacies, the better their sense of perception and decision making, both professionally and personally. But let me warn you that just because we know, are aware and do our best to mitigate our heuristics, we will always fall short. Even the great Daniel Kahneman, one of the founders of behavioural science, conceded to this:

Except for some effects that I attribute mostly to age, my intuitive thinking is just as prone to overconfidence, extreme predictions, and the planning fallacy as it was before I made a study of these issues.

That is what it means to be human, I suppose. And lawyers despite popular notions to the contrary cannot escape this fact.

There is also another fact that I think a legal practitioner cannot escape – that knowledge of behavioural science, our heuristics and cognitive biases improves our abilities and work as lawyers and is important to understand.