How Biology and Psychology Affect ourOpinions and Actions—and How to Recognizeand Improve our Interpersonal Skills

Biased? Me?

Presenter:

Claude E. DuclouxBoard certified, Civil Trial Law, and CivilAppellate Law, Texas Board of Legal SpecializationDirector of Education, Ethics and State Compliance

NASAA CONFERENCE – Miami August 10-11, 2021

Agenda

• The biology of decision making• Definitions and types of bias• Confirmation bias• The Backfire Effect• Information deficit and belief change• Recognizing manipulation techniques• Astroturfing• Strategies for dealing with others• Strategies for our own decisions

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Primer: The Biology of Decision Making“There’s a reason you feel that way!”

Implicit (“unconscious”) Bias – Our worldview

Factors which form our unconscious views and preferences:• How and Where we are brought up• Who socialized us during formative years• Our friendships then… and now• Media Influences• Individual experiencesWe are hard-wired to to prefer those who look, sound and share similar interests.Emerging from the Shadows: Unconscious Bias in the Workplace” – Katrina Grider, 2018 UT-CLE 25th Annual Labor Law Conference.

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The biology of decision making

The brain’s frontal lobe presides over reasoning, self-control, and decision making, including:• Social behavior• Complex cognitive behavior• Your personalityBy contrast the limbic cortex (also nicknamed “lizard brain”) is associated with emotion, addiction, and mood. It is much more primitive in development.

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blogs.scientific american.comOUR DECISIONS RELY ON BOTH PARTS OF THE BRAIN.

The “psychology” of decision making

The Human Brain’s tools for making decisions:

Perception – how we perceive reality - what color is the sky for us?

Attitude – what sort of people make us scared/guarded?

Behavior – what sort of people will we naturally be friendly toward?

Attention – what attributes are we drawn to in people? Looks? Humor?

Listening skills – do we actively listen to what certain people say (or engage in “micro-inequities”)?

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The “psychology” of decision making

The world is complex. To simplify, we rely on a range of cognitive mechanisms to cope with adverse environments where we face the unknown.

Heuristics: Confidence-sustaining “mental shortcuts” that help us make quick decisions. However, relying on heuristics is at the expense of rigorous logic and rational reasoning.

Why do we use heuristics? We don’t have time (or perhaps the mental ability) for complex analysis, so we limit the information we will consider.

Example: relying on a “brand name” over analysis of a product’s quality.

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Unconscious biases (just some of the many)

Affinity Bias - we like people similar to us- or think one gender is better for job

In-Group Bias – perceiving similar people in more positive light

Halo Effect – only looking at the good attributes of someone like us

Projection Bias – assuming everyone thinks like us

Confirmation Bias – looking only at information which confirms what we already believe

Value Attribution Bias – inbuing a person with initial perceived value based on appearance-

e.g, The “Joshua Bell” experiment. (world class violinist ignored in subway)

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The “psychology” of decision making (cont’d)

• Framing the problem (in our own mind)

• How you see the problem has a significant effect on how you make decisions. If we think we’re winning, we become risk averse. If we think we’re losing, we’re likely to take more risks to recover losses.

• Thus—we go to trial when “we have nothing to lose.”

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• Framing the problem (in others’ minds)

• The car crash video: words matter

• Groups of students were shown the same video, but were asked, “How fast were the cars going when they [smashed][collided][bumped][touched] the other car?” The verb made a huge difference in their answers. “Smashed” resulted in higher estimated mph.

The problem with heuristics: they rely on, and result in, significant biases in decision making.

The variables:

The 7 steps—UMass Dartmouth, 201710

7 Steps of Effective Decision MakingDecision making is the process of making choices by identifying a decision, gathering information, and assessing alternative resolutions. Using a step-by-step decision-making process can help you make more deliberate, thoughtful decisions by organizing relevant information and defining alternatives. This approach increases the chances that you will choose the most satisfying alternative possible.

So, why don’t we make GREAT decisions?

Heuristics: too much information, but too little time, resulting in “educated guesses”Emotion: using our “lizard brain” instead of thoughtful analysis of relevant informationEpistemic closure: the refusal to accept information at all, regardless of its validity, when it conflicts with your pr.Misusing information: we pay more attention to easily-available information and to our own biases. We are self-serving in our analysis, resulting in…

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Self Serving Bias: paying more attention to anything that shows our position favorably; and Confirmation Bias: supports our already established point of view.Worse yet, we tend to surround ourselves with people who have similar viewpoints.And we are burdened by our own ignorance!

The Dunning Kruger Effect

In 1999, David Dunning and Justin Kruger created a general knowledge test, and asked test-takers afterwards, “How do you think you did?”

People of high ability often underestimated their performance. However, people of low ability regularly over-estimated their performance. The cognitive bias of illusory superiority comes from their lack of self-awareness of their true inabilities. I.e., low-ability people cannot objectively evaluate their actual competence or incompetence.

Confucius said: “Real knowledge is to know the extent of one’s ignorance.”Shakespeare: “The fool doth think he is wise, but the wise man knows himself to be a fool.” (As You Like It, Act V scene i)

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Which leads us to make biased decisions

All of the above result in the main problems with judgmentWe tend to be unduly optimistic about estimates and filter out uncertainty. We hesitate to re-evaluate new information.

“I may not be right, but I’m never in doubt.”

Explicit Bias: a conscious decision to show bias or prejudiceImplicit Bias (aka “implicit social cognition” or “unconscious bias”):results from the attitudes or stereotypes that affect our understanding, actions, and decisions in an unconscious manner

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• Selective Attention

• Diagnosis Bias

• Pattern Recognition

• Value Attribution

• Confirmation Bias

• Affinity Bias

• Priming Effect

• Commitment Confirmation

• Stereotype Threat

• Anchoring Bias

• Group Think

• Micro-Aggressions

How might implicit bias operate?12

Unconscious bias and the law12

The Thomas Meyer Legal Memo:In 2014, with the help of lawyers, psychologist Arin Reeves creates aResearch memo which contained 22 errors (spelling, grammar, technical writing and factual); 60 partners were told it was written by 3rd year associate Thomas Meyer, a NYU law graduate, and asked to rate it from 1 (poor) to 5 (excellent)“Black” Thomas Meyer received an overall 3.2; “White” Thomas Meyer received a 4.1. Moreover, reviewers actually caught fewer mistakes by “White” Thomas Meyer

Confirmation Bias“This is so much more comfortable!”

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What is confirmation bias?

The tendency to search for or remember things in a way that supports a pre-existing belief, expectation, or hypothesis. This effect has been observed and debated philosophically for hundreds of years.

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“The human understanding when it has once adopted an opinion…draws all things else to support and agree with it.”

—Francis Bacon, 1620

What is the effect of confirmation bias?

It creates polarization• We interpret events incorrectly• We lack empathy • We resist change which conflicts with our worldview• Our inaccurate beliefs persist and are passed on

Without use of a “scientific method,” people develop a false confidence in their ability to judge situations they encounter frequently.

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• Adopt a theory or strategy• Often difficult or unable to

consider alternative strategies or theories

• Like jurors, attorneys unintentionally seek facts or evidence that supports their assessment

• Dismiss clear, valuable data such as expert witness reports that are contrary to their position

20Attorney’s confirmation bias in initialcase assessment

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Preventing confirmation bias in trial attorneys

• Don’t be so quick to attach to a theory or strategy• Initial assessment should be about information gathering and maybe a

gut feeling• Step away for a couple days and review the case again, visit with

colleagues and get their impressions• When new material arises, be objective• Remember that juries don’t always see the case as we see it• Lawyers are wired to think differently and assess facts differently• Be willing to accept a different opinion or criticism

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Lawyers need to practice “reframing the issue”

• Attack from different angles• Reframing in the value system of the listener-

• (“the shoulder” v “emergency lane”)• Consider alternative solutions• Engage the creative side of the brain• If we fail to reframe our problems, we set ourselves up to miss possible

solutions:• Instead, we’re just plugging in pre-formed solutions to what we

believe are common problems• Cookie-cutter method of problem-solving is lazy… and dangerous.

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The Backfire Effect

The Backfire Effect

In response to receiving contradictory evidence, established beliefs get stronger. Confidence in the correctness of one’s position increases.

In other words, if you don’t want information to be true, you will fight against it.

The degree to which such rationalization occurs depends upon several factors, but the personal significance of the challenged belief appears to be crucial. Specifically, beliefs that relate to one’s social identity are likely to be more difficult to change.

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The information deficit model

The theory: The public’s misperceptions are due to lack of knowledge, thus, the solution is to give the public more information, right?But, misperceptions differ from simple ignorance:Misperceptions are usually held with a high degree of certainty and people often consider themselves to be well-informed about the fact in question. —Flynn, Nyhan, and Reifler, “The Nature and Origin of Misperceptions: Understanding False and Unsupported Beliefs in Politics” (2017)

More importantly, on high-profile issues, many of the misinformed are likely to have already encountered and rejected correct information that was discomforting to their self-concept or worldview.

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• The insular cortex:• Monitors the internal state of the body; generates emotions and

feelings• Is activated by perceptions of threat, uncertainty, and anxiety• Lights up when viewing faces of opposing political candidates

• The amygdala:• Especially sensitive to fearful and threatening stimuli• Plays an important role in social judgments, particularly in

assessing trustworthinessRational challenges to cherished or firmly held beliefs are such triggers for the amygdala to go into action.

26Resistance to “belief-change” correlates withactivity in the insular cortex and amygdala

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Behavioral psychologists27

John B. WatsonThree innate traits—love, fear, and rage—appeal to consumers’ fears, insecurities, and anxieties to make them purchase products

Leon Festinger Cannot change convictions with disagreement, facts, figures, or logic

Clotaire Rapaille“I don’t care what you’re going to tell me intellectually. I don’t care. Give me the reptilian. Why? Because the reptilian always wins.”

Politicized beliefs

“Political misperceptions are typically rooted in directionally motivated reasoning, which limits the effectiveness of corrective information about controversial issues.” —Flynn, Nyhan, and Reifler, “The Nature and Origin of Misperceptions: Understanding False and Unsupported Beliefs in Politics” (2017)

Directionally motivated reasoning is based upon “protected values,” perceived as strongly held and non-negotiable.

Belief perseverance and continued influence: Once a piece of information is encoded in memory, it can be very difficult to eliminate its effects on subsequent attitudes and beliefs. —Nyhan and Reifler, “Misinformation and Fact-Checking: Research Findings from Social Science” (2012)

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The tipping point for changing perception

• When 14 percent of information on the issue challenges a person’s beliefs, the person starts to engage in “active learning”

• When the information challenging belief hits 30 percent, the person starts to change their view

But most people refuse to reach 30 percent saturation of negative information because of active information avoidance—we shun useful information.

• The information is useful• You know how to find the information• It’s easy to get or even costs you not to get it

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But how did we get…

from this…

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…to this?

Media Manipulation of News,Media, and Memory

“It’s not that I lack the facts. I simply don’t like them.”

Manipulation techniques—a primer

• Fear mongering - deliberately arousing public fear• Projection – attributing your own bad tendencies to others• False dichotomies – you must either be with or against us• Ad nauseam- beating “a dead horse” same excuse/argument • Cognitive dissonance – espousing two contrary beliefs• Created enemy - the way to avoid guilt and shame for heinous acts

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Takeaways

1. Fear and rage sell2. Once the target is afraid

and angry, logic and facts won’t change their mind

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Example—Fox News

• In 1996 Rupert Murdoch hires Roger Ailes, a political advisor, to head Fox News.

• Ailes defined target audience (per Tobin Smith) as “white guys in mostly Red State counties who sit on the couch with the remote in their hand all day and night.”

• More importantly, “the truth is whatever people will believe. If we tell our audience what they want to hear, they’ll never change the station.”

• Ailes directs staff to “scare the sh** out of them [the audience]…”

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Hurdle #1: New-age manipulation- “astroturfing”

• Astroturf is fake grass. So, “Astroturfing” is a fake grass-roots campaign: A carefully constructed narrative paid for by unseen interests for the purpose of manipulating your opinion

• Using social media to create false impression of widespread grassroots support for or against an agenda.

• Used extensively by a range of special interests—not just political but also corporate.

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Hurdle #2: The Rising Danger of “Group Identities”

Or, The Demonization of anyone outside my groupThe “Rattlers v. Eagles” – 1955 experiment: two dozen boys were recruited to summer camp to learn activities to create group cohesion. They were divided randomly into two groups, and trained to perform team-building projects, sharing work and sharing success. After two weeks, the two groups were pitted against each other in a series of competitions. The results were posted each day, and each of the winners awarded prizes.Before long, it turned UGLY – the teams hurled insults at each other, vandalized the others’ camps and possessions and broke into fist fightsMESSAGE: Group identities quickly become important than self-identities, leading to demonization of anyone outside the group!

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HURDLES TO CHANGING MINDS #3

“The Illusion of Explanatory Depth”Psychologists Leon Rozenblit and F.C. Kyle (2002)-Adults overestimate the detail and depth of their explanatory knowledge, but through providing explanations they recognize their initial illusion of understanding. Asked: “On scale of 1 to 7, how well do you understand how [X] works?” -when forced to explain, they reduced the number.They repeated this using political policies like climate change and income inequality. Same result, after asking people to explain depolarized the groupand made people conscious that they didn’t understand.HOWEVER: asking them “Give us your reasons to support the policy” did not change their opinions or hubris or confidence. [like asking them to explain it did]

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HURDLE #4: The New Conspiracism-“No-evidence Conspiracies”

“A Lot of People are Saying…” - by Russell Muirhead and Nancy L. Rosenblum (Harvard)Classic conspiracy theory insists that things are not what they seem and gathers evidence—especially facts ominously withheld by official sources—to tease out secret machinations. Today’s “new conspiracism” is different:• There is no demand for evidence, • No dots to connect to prove its existence. • The new conspiracism imposes its own reality simply by repetition of same theory.“BUT (you ask) HOW DOES THIS CONSPIRACISM HANDLE FACTS?”Through “Self-Sealing Belief” - because no evidence is required, anyone who challenges this must be part of the conspiracy. The mere challenge to the truth of the statement proves your guilt.

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Training Our Judges“This is a bit more complicated than I thought.”

How do judges judge? The four theories.

1. Legal realists: political ideology2. Proponents of critical study: favoritism of existing power structure3. Race/feminist scholars: race and gender4. Law and economic scholars: self-serving for political fortunes

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Dangers of purely intuitive judiciary

• Anchoring: reliance on pre-existing idea or first impression

• Reliance on statistical inferences rather than facts: e.g., if negligence only happens 0.1 percent of the time, diminishes likelihood it happened in this case

• Res ipsa loquitor doctrine/instruction

• Hindsight bias: outcome was “inevitable”

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Explicit bias: God and the gavel

“I obey my God over the law. You may ignore the United States Supreme Court.”

—Roy Moore-but Roy, what if someone else’s God tells them something different? Who’s God is right?

“God told me she is innocent.”—Comal County Judge Jack Robinson

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Implicit bias: law clerk selection

• Since 2005, 85 percent of all SCOTUS clerks have been white

• Of 487 clerks: 20 African American, 9 Hispanic, 40 Asian

• 2x as many men as women, despite more female law school grads

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Explicit bias: sexual harassment

12/18/2017 Addition to Ethics § 2.2A of Law Clerk Handbook:

“However, nothing in this handbook, or in the Code of Conduct, prevents a clerk, or any judiciary employee, from revealing misconduct, including sexual or other forms of harassment, by their judge or any person. Clerks are encouraged to bring such matters to the attention of an appropriate judge or other official.”

—Federal Judicial Center (2017)

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Gender Bias and the Legal ProfessionConquering the “Lady Lawyer” archetype

Justice Ruth Bader Ginsburg46

A Current Glance at Women in the Law, ABA 2017

• Overall lawyers are 64% men, 36% women

• In private practice women constitute• 48.7% of summer associates• 45% of associates• Less of 25% partners• 18% of equity partners• 18% of managing partners at the 200 largest

law firms

• Fortune 500 General Counsels, 75.2% men, 24.8% women

• Fortune 501-1000 General Counsels, 80.2% men, 19.8% women

• Law school deans, 68.9% men, 31.1% women

• Overall judiciary, 27.1%

Justice Amy Coney Barrett

Justice Elena Kagan

Task force recommendations for women lawyers

1. Recognize, accept, and use the power you have

2. Be intentional about conversations3. Build deep relationships4. Fine-tune your political savvy5. Grow your mindset6. Build resilience7. Remember your purpose

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Champion debater, Texas Senator, and U.S. Representative Barbara Jordan

Implicit Bias on trial - a theory in progress

Wal-Mart Stores v. Dukes, 131 S.Ct. 2541 (2011) - no “significant proof” of general policy of discrimination (using Gen. Telephone v. Falcon 457 U.S.147 (1982) standard).Peterson v. Seagate, 809 F. Supp. 2d 996 (D. Minn. 2011) – employees terminated (all over age 40). Ct struck statistical analysis of employees as not sufficient to prove bias.See also, Karlo v. Pittsburgh Glass, 2015 WL 3966852, (W. D. Pa. 2015)

Pippen v. Iowa, No. LACK 107038, (Iowa Dist Ct. Apr 17, 2012), Alleged state discrimination against African American employees. Ct rejected two experts’ opinions as insufficiently fact-based (no empirical evidence), and merely opinion. Ellis v. Costco 285 FRAT 492 (2012) alleged discrimination against women – Court did find substantial evidence of corporate culture of bias. (North Dist. California)

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So—what can we do?50

Changing Others’ Minds

Blaise Pascal (1623-1662)-French philosopher, inventor and physicist created what we now consider “decision theory” --to change another’s mind, you must first find agreement, by considering his perspective. You must help him discover the reason to change his opinion.“to effectively persuade someone to change their mind, lead them to discover a counter point of their own accord.”

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What can we do?

1. Get the story right the first time. Once misinformation is out there, it’s impossible to completely erase it.

2. Don’t spread gossip:a. “Did you see…”b. “People are saying…”

3. Use credible sources; don’t give credence to the fringe

4. Consider other’s perspectives

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What can we do?

Present positive information!

80 percent of people are subject to the “optimism bias.” Most of those that are not optimistically biased suffer depression.

• Those with optimism bias store positive information better by frontal lobe.

• People will change their beliefs more when presented with good/positive information.

• Neurobiology: Stress destroys the optimism bias. Stressed people learn more from negative information.

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What can we do?

Moral reframing: Make your position compatible with your audience’s personal beliefs. Reduce partisan “cues”

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“Liberal”values

• Benevolence• Nurturance• Equality• Social justice

“Conservative” values

• Group loyalty• Authority• Protection• Liberty

What can we do?

When presenting facts, aggregate data.Information that is easy to process is more likely to be accepted as true.• Summary fact-checking data affects perceptions of politicians’ accuracy

and favorability more than using negative information (aka, don’t editorialize – “just the facts, Ma’am.”)

• Graphics: using graphs is shown to reduced misperceptions more than using text. [5]

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What can we do?

Lawyers, as leaders, must challenge beliefs• Recognize the social value of admitting when we’re wrong and

changing our mind• Make it uncomfortable for people to spread gossip and lies• Protect the rule of law when you see it attacked• Make sure everyone knows the importance of a free press and an

independent judiciary

Bottom line: We need lawyers more than ever!

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So, what can we do to make a difference?

Remember:“You cannot change convictions with disagreement, facts, figures, or logic.”

—Leon FestingerTake the high road:• Stay informed• Get the story right• Don’t give credence to the fringe• Don’t gossip or use hearsay-relating

facts• Reframe issues to be compatible with

important beliefs of the audience

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Decision making:• Be self-aware of your own heuristic tendencies in making decisions• Accountability: the more serious the decision, the more people will

look into it• Individual investigation before discussing with other group members• Use diverse decision-making groups• Present positive information• Avoid “partisan cues”

58Handle your decisions in a way thatminimizes bias

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What can we do?

Test yourself:Use the tests available from Project Implicit

Harvard University offers the public many different types of implicit bias tests you can take online based on age, race, gender, disability, religion, sexuality, etc.Project Implicit was founded in 1998 by three scientists:• Tony Greenwald (University of Washington)• Mahzarin Banaji (Harvard University)• Brian Nosek (University of Virginia)

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Thank You!

Claude E. Ducloux866-376-0950

claude@lawpay.com

Thank you Calvert Inn, American Inns of CourtAustin, Texas,

Prof. TK Floyd Foutz and Katrina Grider

Claude Ducloux would like to thank Prof. TK Floyd Foutz of the National Diversity Council for her assistance, Katrina Grider for her CLE paper, as well as the members of his Team #5 of Calvert Inn - American Inns of Court, Austin Texas, for their assistance in assembling the information presented:

Catherine Baron, Dan Betts, Kelly Canavan, Kate Goodrich, Julian Grant, Carson Guy, Rob Hargrove, Kent Johnson, Nikki Maples, Paula Pierce, Jeannie Ricketts, Ryan Shelton, Lena Silva,

Todd Smith, Ryan Squires, and Hon. Tim Sulak.

Sources

1. Flynn, Nyhan, and Reifler, “The Nature and Origin of Misperceptions: Understanding False and Unsupported Beliefs in Politics” (2017)

2. Kaplan, Gimbel & Harris, “Neural correlates of maintaining one’s political beliefs in the face of counterevidence” (2016)

3. Nyhan & Reifler, “Do People Actually Learn from Fact-Checking? Evidence from a longitudinal study during the 2014 campaign” (2016)

4. Nyhan et al., “Counting the Pinocchios: The Effect of Summary Fact-Checking Data on Perceived Accuracy and Favorability of Politicians” (2016)

5. Nyhan & Reifler, “The role of information deficits and identity threat in the prevalence of misperceptions” (2017)

6. Nyhan & Reifler, “Misinformation and Fact-Checking: Research Findings from Social Science” (2012)

7. Grider, Katrina “ Unconscious Bias in the Workplace” UT-CLE’s 25th Annual Labor & Employment Law Conference- 2018.

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