Monday, October 16, 2017

Cognitive Biases and Persuasion

I received a tweet this weekend from a colleague, Cathren Page, pointing out that knowledge of cognitive biases can be important to persuasion in legal writing.  This is very true.  Advertisers use cognitive biases to sell their products, and lawyers can do the same with their arguments.

Cognitive biases are “a systematic error in thinking that affects the decisions and judgments that people make.” (Kendra Cherry)  These biases are products of evolution.  Our brains developed in significantly different environments than we face today.

Here are a few cognitive biases that relate to persuasion:

  • Anchoring: "The tendency to rely too heavily, or ‘anchor', on one trait or piece of information when making decisions (usually the first piece of information that we acquire on that subject)."
  • Availability heuristic: "The tendency to overestimate the likelihood of events with greater ‘availability' in memory, which can be influenced by how recent the memories are or how unusual or emotionally charged they may be."
  • Bandwagon effect: "The tendency to do (or believe) things because many other people do (or believe) the same."
  • Confirmation bias: "The tendency to search for, interpret, focus on and remember information in a way that confirms one's preconceptions."
  • Emotional reasoning: Letting your feelings guide your interpretation of reality.
  • Status quo bias: "The tendency to like things to stay relatively the same."

For example, anchoring demonstrates the importance of getting the important information out first.  Not only does a legal writer want to go first, that writer should put the important information at the beginning.  Similarly, the emotional reasoning bias confirms that legal writers should consider the readers' emotions when writing a brief.  Finally, an attorney can frame an argument around a status quo bias.

The above only scratches the use of cognitive biases in persuasive writing.

Of course, knowledge of cognitive biases is also important for another reason: Avoiding being swayed by them.  As I noted in my book, advertisers use cognitive biases frequently, and some companies are manipulating their employees through cognitive biases.  In fact, comedian Bill Maher recently declared, “Apple, Google, Facebook, they are essentially drug dealers.”

I hope to post more about cognitive biases in the coming weeks.

(Scott Fruehwald)

http://lawprofessors.typepad.com/legal_skills/2017/10/cognitive-biases-and-persuasion.html

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