In January, I attended a Continuing Education and one of the speakers, Gwinnett County Juvenile Court Judge Robert L. Waller, III, suggested that lawyers should be students of critical decision making.   My Google search of the topic produced an outline of lectures by Professor Michael A. Roberto titled “The Art of Critical Decision Making”, © 2009 The Teaching Company.  The information here on critical decision making comes from that outline, and full credit is given to Professor Roberto and The Teaching Company.  I recommend you locate and peruse the entire outline.

Among the lecture titles:  Making High-Stakes Decisions, Cognitive Biases, Avoiding Decision-Making Traps, Intuition-Recognizing Patterns, Reasoning by Analogy, Deciding How to Decide, Achieving Closure through Small Wins, and Asking the Right Questions.   The value of this information to attorneys desiring to become better advocates and advisors is apparent.   While every lawyer should be a student of human behavior, optimally the lawyer and client work together to think critically about the client’s cause and objectives.   Increased awareness of cognitive biases will result in more effective representation and a better attorney-client relationship.

Some quotes from the outline that may be particularly relevant in the family law context:

• Emotions can either motivate us or at times paralyze us when we make important decisions.
• Strategic decisions often evolve over time and proceed through an iterative process of choice and action.  We often take some actions, make sense of those actions, and then make some decisions about how we want to move forward.
• Our intuition can be very powerful, but at times, we make mistakes as we match what we are seeing to patterns from our past.
• Most decisions involve a series of events and interactions that unfold over time.
• When confronted with a tough issue, we focus on the question, what decision should I make?  We should first ask, how should I go about making this decision?
• Human beings tend to make certain types of classic mistakes when making decisions because we are not perfectly rational human beings – these systematic mistakes are described as cognitive biases.   Think of them as decision-making traps.  These biases affect experts as well as novices.
• “Overconfidence bias” is that human beings are systematically overconfident in our judgments.
• “Sunk-cost effect” refers to the tendency for people to escalate commitment to a course of action in which they have made substantial prior investments of time, money, or other resources.  In the face of high sunk costs, people become overly committed to certain activities even if the results are quite poor.  They ‘throw good money after bad’ and the situation continues to escalate.
• The “recency effect” is placing too much emphasis on recent events.  The availability bias is placing too much emphasis on the information and evidence most readily available to us when we are making a decision.
• “Confirmation bias” refers to our tendency to gather and rely on information that confirms our existing views and to avoid or downplay information that disconfirms our preexisting hypotheses.  We assimilate data in a biased manner and do not seek disconfirming data.
• The “anchoring bias” refers to the notion that we sometimes allow an initial reference point to distort our estimates.  We begin at the reference point and then adjust from there, even if the initial reference point is completely arbitrary.
• “Illusory correlation” refers to the fact that we sometimes jump to conclusions about the relationship between two variables when no relationship exists.
• “Hindsight bias” refers to the fact that we look back at past events and judge them as easily predictable when they clearly were not as easily foreseen.
• “Egocentrism” is when we attribute more credit to ourselves for a particular collective outcome than an outside party would attribute.
• Framing matters.  If we frame a situation in terms of a potential gain, we act differently than if we frame it in terms of a potential loss.  Threats are perceived differently from opportunities.  We should consider adopting multiple frames when we examine any particular situation.  We need to surface our implicit assumptions, and then probe and test those presumptions very carefully.  Reframing requires asking curious, nonthreatening questions.

How can we combat cognitive biases in our decision making?  By becoming more aware of these biases and making others with whom we work and collaborate more aware of them.  We can review our past work to determine if we have been particularly vulnerable to some of these biases.  Engaging in candid dialogue and vigorous debate may result in a decision less influenced by cognitive bias.

A family law case is comprised of a series of decisions that determine not only the course of the case, but the client’s future.  Critical thought about cognitive biases that may be operating in either the lawyer or the client will be helpful.  Intentional reframing of threats as opportunities will lead to more flexible and adaptive reactions.

Professor Roberto differentiates two forms of conflict:

• cognitive conflict which is task oriented, a debate about issues and ideas.
• affective conflict which is emotional and personal in nature, about personality clashes, anger, and personal friction.

To the extent that the lawyer and client collaborate to stimulate cognitive conflict and minimize affective conflict, the client and cause are well-served.

Another effective skill for the family law case is to seek agreement on small points amid larger disagreements.  In such a fashion you get to closure through a step-by-step process.  Looking for areas of common ground helps build momentum toward closure.  Small wins may be process-oriented or outcome-oriented.

The final lecture in Professor Roberto’s outline is Asking the Right Questions.  We must discard the notion that we have all the answers, and place more emphasis on finding the right question than the right answer.

Each of us, whether lawyer or client, can benefit from thoughtful analysis of the cognitive biases affecting our case.  We can intentionally take a step back to consider whether reframing an issue or seeking agreement on small points might help move the case towards resolution.  Sometimes, choosing to engage in the iterative process of choice and action rather than a rush to closure is all that is required to improve our effectiveness.

The lawyers of Hindson & Melton LLC will partner with you to develop and pursue your family law case objectives in a thoughtful and client-centered relationship.

Karen Hindson, Hindson & Melton LLC, February 24, 2013