Last month, I attended the International Bar Association’s conference in Vancouver. About 5,000 lawyers from around the world descended on the city to discuss issues from law firm management to emerging M&A trends to dawn raids to professional ethics and the appointment of judges to the International Criminal Court. There was a little of something for everyone with points of view from across the globe.
One of the first sessions I attended was called “the art and science of persuasion,” which was part of the dispute-resolution track. The panel featured some of the world’s top litigators, arbitrators, and judges. And the general sense I got from the discussion was that everyone is biased, no matter how objective they may think they are. It’s understanding these biases that will help lawyers win their arguments.
So I thought I’d just share a few quick points from some of the presentations. Firstly, as José Astigarraga from Miami noted in his opening remarks, once you have an opinion about something, people naturally filter out what doesn’t support that point of view. Thus it’s not always rational reasoning that leads to decisions.
Manuel Conthe of Bird & Bird LLP in Madrid, Spain, spoke about “hindsight” bias and noted the future is uncertain and has many alternatives. But in the past — wrongly — uncertainties tend to disappear and we overestimate the probability of the outcome. He gave the example of a patent, saying once something has been discovered or invented, its uniqueness is often underestimated. Another much-discussed bias is “anchoring” bias, wherein providing numbers will have an effect on decisions, particularly in areas such as damages. British Columbia Supreme Court Justice Robert Bauman admitted anchoring affects him every day. In B.C., he noted, jury awards for non-pecuniary damages are much lower than from those of judges alone who are informed with all the anchoring bias of past judgments.
Cultural, gender, geographic, and cognitive biases were also addressed by various panellists in the fascinating discussion. At the end of the day, how do professionals on both sides of the bench and/or table overcome them: know the law and the facts better than your opponent, plan your case taking into account that there are always biases, and debunk those biases as you go along.
