Attorneys are hired for a multitude of reasons, but if network TV has taught us anything, it’s that great lawyers have great instincts. Of course, TV also taught us that cases always go to trial (really quickly) and always end very dramatically.
Lawyers sell their knowledge and their ability to access and produce more knowledge. Thus, the field of law is very susceptible to knowledge-related cognitive glitches. To compound this vulnerability, some attorneys (not naming names) have SLIGHT difficulty considering alternative perspectives.
We are what we remember.
In the year Y2K (that’s the year 2000 for younger millennials), Malcolm Gladwell published a groundbreaking book called The Tipping Point which explored how ideas can spread like epidemics. Its popularity was massive and two brothers (Chip and Dan Heath) picked up the ball and explored one aspect of Gladwell’s work: the concept of stickiness. In 2006, they published an amazing book called Made to Stick that tried to pin down exactly what makes ideas sticky.
In that book, the Heath brothers put a twist on a cognitive bias called the Curse of Knowledge. This is a concept that dates back to economic research in the 1970’s. Specifically, the Heaths wrote: “The Curse of Knowledge says that when we are given knowledge, IT IS IMPOSSIBLE to imagine what it’s like to LACK that knowledge.”
I think of it like this: We forget things all the time. However, we can’t decide to un-know something.
We are what we unconsciously choose to remember.
Our brains are unbelievably complex computers, but they are not perfect. They tend to overvalue memories that have emotional significance (and then assume these are predictive examples). This is great for experiments like putting your hand on a hot stove, but not so good for looser correlations like using a particular legal strategy that worked on a big case one time. (Remember, that's a sample size of one!)
Further, the Availability Heuristic suggests that what comes to mind quickly is deemed more significant to us. Thus, our analysis of things is often dominated by our recent experiences (especially the really good and really bad ones). This is not a very methodical (or effective) way to make predictive choices.
Worse still, various smart people will have very different recent life experiences and often come to very dissimilar assessments of the same situation. When analysis is driven by the Curse of Knowledge, it’s tough to find consistency.
A guide on how to protect WWII bomber planes.
Abraham Wald was a brilliant mathematician from the early 20th century. At the age of 36, he found himself in unfortunate circumstances: 1) Hungarian; 2) Jewish; and 3) Living in 1938 Austria. Not surprisingly, Mr. Wald fled to the U.S. and began working for the “Manhattan Project for Mathematicians” called the US Statistical Research Group or SRG.
The SRG famously utilized Mathematics to try and solve military issues… like how to protect U.S. bomber planes. The problem was that extra armor on these giant planes would burn more fuel, reduce speed and hurt maneuverability. So, the US Navy had to be judicious in adding thick protection.
In a scientific effort to help, they catalogued the bullet holes on planes and used this as a guide for where to reinforce the aircraft. It was obvious, add armor where the planes are being shot. Easy peazy.
Fortunately, Abraham Wald completely disagreed with the military’s armor strategy. He analyzed the patterns and said they should PUT THE ARMOR WHERE THE BULLET HOLES AREN’T.
Mr. Wald realized that these catalogued planes were aircraft that survived. This suggested that taking fire in any of these spots would NOT bring a plane down. However, he noticed that no plane had returned with bullet holes in the engines. Clearly, this is where the armor would be most valuable.
Embrace Challenges to your Brain.
Mr. Wald approached the problem with a completely different Curse of Knowledge from his engineer and pilot counterparts. They had a very “plug the leak” form of processing. He was more data-driven towards cause and effect. Both were valuable insights, but Wald's solution was better.
Too often, we immediately reject alternative perspectives because "they don't know as much as we do." In reality, that lack of your knowledge may be their greatest strength. We need only be willing to quiet our instincts and listen.
Who is the Author?
Convince,LLC and www.LitPredict.com founder Matt McCusker, MA is a nationally-known Litigation and former President of the American Society of Trial Consultants (ASTC). He has utilized his background in I/O Psychology to provide innovative solutions for legal teams and Fortune 500 corporations around the world.
Matt has served as a source for many media outlets (the Wall Street Journal, CNN, “This American Life with Ira Glass”, the Chicago Tribune, and more). He is available to teach/present about the crossroads of psychology and litigation at law schools, professional organizations and conferences.
Musings on the state of the legal world by the Convince,LLC founder.