Saint Louis University School of Law
New England Law | Boston
Most of us feel like we are in control of our own behavior. However, empirical studies have shown that unconscious patterns of human thought can influence how we, as attorneys, make professional judgments. As humans navigate a complex world, they are required to make decisions under conditions of uncertainty, when circumstances are ambiguous, and information is incomplete. Meanwhile, decision-makers operating under these constraints are often motivated to justify certain actions and outcomes. Social scientists have concluded that people use automatic mental shortcuts—called cognitive and social biases—when making decisions that can lead to choices that are ethically problematic. The area of work that informs this discussion can be thought of broadly as behavioral legal ethics.
Motivated reasoning leads people to seek out evidence that supports specific goals they have and to disregard evidence that does not support those goals. The process of motivated reasoning happens largely unconsciously, without effort or awareness. A classic study by Albert Hastorf and Hadley Cantril showed how a football game was perceived differently by fans of the two participating schools. The game, between Princeton and Dartmouth, took place on a November Saturday afternoon in 1951. Hastorf and Cantril later showed a videotape of the game to undergraduates from each school. As the students watched the film, they were asked to record any rule infractions they saw and indicate whether they considered the infractions to be "mild" or "flagrant.” The results were telling. Princeton students saw the Dartmouth team commit over twice as many infractions as their own team, yet Dartmouth students saw the number of infractions as even between the two teams. The Princeton and Dartmouth students also had very different views regarding how flagrant each team’s penalties were, with students favoring their own teams. Each group of students saw the same game, but each group, seemingly unaware of their own biases, viewed the game in a light that favored their own team. In other words, the fact that students wanted to maintain a positive impression of their own team colored their interpretation of events.
Within the general category of motivated reasoning, there are several distinct biases that can distort people's judgment about their own attitudes and actions, as well as those of other people.
Self-serving Bias. People interpret ambiguous situations in a way that serves their own interests. This bias, called the self-serving bias, can lead individuals to overestimate how fair or even-handed they are being, or it can cause them to inflate how hard they are working to achieve a specific goal. This tendency to portray oneself in a particularly rosy light can lead individuals to behave unethically because they are not sufficiently critical when they examine their own behavior.
Confirmation Bias. Related to the self-serving bias is the confirmation bias. When people hold a belief or an attitude, they selectively see or even seek out information that would tend to confirm this belief. Moreover, they interpret ambiguous information as supportive of their belief. Tunnel vision can result—causing the actor to fail to notice, or entirely discount, information that contradicts the adopted belief.
Overconfidence Bias. People also tend to be motivated to see themselves as competent in a variety of areas, which can lead them to be overly confident about their own judgment and abilities. The overconfidence bias leads actors to downplay the possibility that they will fail to meet their ethical obligations, leading to a greater risk that their own ethical missteps will go unnoticed.
Fundamental Attribution Error. Another bias that can result to errors in judgment is the fundamental attribution error. When recognizing mistakes that others make, individuals often attribute those errors to internal factors, such as personality or disposition. In contrast, when people notice their own bad behavior, they often attribute the behavior to situational factors that are beyond their control, making it less likely that they will take steps to correct them in the future.
Ethical Blindness. These biases—self-serving bias, confirmation bias, and overconfidence bias, along with the fundamental attribution error—can lead to ethical blindness, in which people behave unethically, or fail to act ethically, without even realizing it.
Cognitive Dissonance. Cognitive dissonance describes the psychic discomfort that people feel when they perceive that they are not living up to their own standards or are behaving in a way that is inconsistent with their own beliefs or goals. Most of us want to see ourselves as ethical, so in circumstances in which we are able to admit—even just to ourselves—that we have behaved unethically, we feel uncomfortable. Motivated to think of ourselves as good people, we unconsciously try to rid ourselves of the uncomfortable feeling. This effort leads to rationalizing and justifying unethical actions.
Obedience & Conformity. There are two additional factors that are relevant to ethical missteps for lawyers: obedience to authority and conformity. These are familiar concepts, and it takes little imagination to see how they can distort judgment. Obedience occurs when a person complies with an authority figure’s request or perceived request for a specific decision or action. Conformity occurs when an individual's behavior is influenced by social pressures, leading individuals to go along with the group, even when they know that to do so is improper.
There are many ways these biases can impact a lawyer’s choices, creating the potential for unethical behavior. For example, an attorney who is asked to behave in a way that is ethically questionable by a supervising partner will be motivated to downplay any interpretation of the situation that would make compliance with the supervisor’s request seem unethical. Because this lawyer’s own interests are best served by pleasing the partner, the self-serving bias will predispose him to view the behavior as acceptable. Moreover, if other lawyers are complying, the attorney will be tempted to conform in order to avoid professional and social backlash.
In other circumstances, an attorney working with a client who desires a particular outcome might be motivated to interpret ambiguous information in a way that supports the client’s wishes, even when it means that the attorney is engaging in ethically problematic behavior. This is an example of confirmation bias—selectively seeing the world in a way that is consistent with a preexisting attitude or preference. This same attorney is likely to be overly confident about her own ability to discern true ethical pitfalls and so may particularly vulnerable to ethical blindness. Meanwhile, in spite of the fact that the lawyer may be able to see unethical behavior in others, she will attribute her own behaviors to the situation; therefore, she may place too much emphasis on the context and not enough on her own role in promoting or permitting unethical behavior.
Combatting unconscious bias is not easy. The first step is to be aware of situations that include pressure to behave unethically. When one recognizes pressure to act unethically, one should resist the tendency to justify the unethical choice. A lawyer may be able to counteract the effects of the self-serving bias by placing a higher priority on thinking of herself as an ethical person. By keeping ethical behavior a high priority, ethical missteps may be more salient and therefore easier to spot and avoid. Countering the effects of confirmation and overconfidence biases is not easy, but one strategy is to check your assumptions about yourself by asking for input from other people.
Of course, learning about the psychology behind motivated reasoning is only a start, and it alone is not sufficient. The next step is to find ways to make ethics salient when a decision needs to be made. Bringing moral and ethical considerations to the forefront at the time that a choice is presented can increase the chances of acting ethically. There are various ways to make this happen. For instance, one way is to create a self-commitment to ethical lawyering that will be a reminder of the goal to act ethically, even in difficult situations.
Social pressures—e.g., obedience and conformity—can be reduced by seeking advice and support from others. One method that can make resistance easier is to find authority figures who can help counteract the negative influence from a supervisor who may be creating pressure to behave in a way that is unethical. When there is pressure to conform, one can find another person at work—an ally—with whom one can share concerns. By considering other positions, one can diminish the power of self-serving tendencies. Overconfidence bias can also be reduced by thinking deliberatively about a choice that needs to be made. Less reliance on intuition can result in less overconfidence.
In summary, motivated reasoning can lead a lawyer to act unethically in the practice of law. The good news is that, by being thoughtful and proactive about keeping ethics a priority, and by using some simple strategies discussed above, one can increase the chances of avoiding ethical pitfalls.
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Molly J. Walker Wilson is a Professor of Law and Psychology at Saint Louis University School of Law, where she has been teaching and writing about the ways in which social science can inform a variety of areas of law and policy. Molly has written on a wide range of topics, including campaign finance, environmental law, domestic violence, crime registries, tort reform, and the Supreme Court. Her work has been published in Cardozo Law Review, the Journal of Law and Politics, the American Journal of Criminal Law, and Catholic University Law Review.
Tigran W. Eldred is a Professor of Law at New England Law. He previously taught at New York University Law School, Hofstra University School of Law, and Lewis & Clark Law School and has served as a public defender, civil rights lawyer, and human rights advocate. Tigran was an attorney with the Lawyers Committee for Human Rights, including service as a consultant for the Policing Program and as national outreach director, and with the Criminal Appeals Bureau and Federal Defender Division of the Legal Aid Society in New York and Brooklyn, New York, respectively.
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