How Lawyers (Ought to) Think
6 Pages Posted: 26 Jul 2007
Date Written: July 25, 2007
This short essay discusses the problem of cognition errors in law practice. There are substantial literatures is some professions - medicine, clinical psychology, and social work, for example - addressing the need to recognize and correct for cognition errors. Interestingly, very little has been written on the subject for lawyers, and even less for judges.
It is deeply regrettable that judges are not more attuned to potential cognition errors, although it is understandable given that they are subject to extreme confirmation bias. A judge's resolution of disputed facts is self-confirming, seldom disturbed even on appeal, thus providing little occasion for reexamination. Taking cognition bias to the extreme, Justice Antonin Scalia once remarked about death penalty appeals that, "I have been on the court for 20 years and I have not seen a case where I thought there was the slightest doubt about the person's innocence." Statistically, that would seem to be nearly impossible; but heuristically, it makes perfect sense.
Practicing lawyers face a different challenge. They need to be aware of their own possible cognition errors, which can cause problems interviewing clients, negotiating with other counsel, assessing witnesses, or evaluating evidence. Uniquely among professionals, however, trial lawyers must also consider the potential cognition errors of judges and jurors, in order to counteract the most likely mistakes or, to put it politely, to accommodate them.
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