Cognitive Bias Revisited
by Michael P. Carbone
From Michael Carbone's listserv
It's a mistake in reasoning or decision-making that is caused by sticking to our own pre-conceived ideas based upon personal preferences or feelings.
But now comes an article by Brian Costa in the May 13, 2017 issue of the Wall Street Journal under the headline "Why Golfers Overestimate Their Ability." In it he writes that "New data suggests that most players think they will hit the ball farther than they do...It reveals a persistent-and tough to overcome-cognitive bias that causes most players to regularly choose the wrong club.... They think that they will hit the ball farther than they actually do because they tend to remember and make decisions based upon their best shots in the past while forgetting about the rest of them."
Mr. Costa goes on to write about a 1999 study which found that "people tend to hold overly favorable views of their abilities in a wide range of social and intellectual disciplines." And in support of that conclusion he cites a 1992 study which found that "engineers at two Silicon Valley software firms were asked how they ranked relative to their co-workers. Forty two percent of engineers at one firm and 32% of engineers at the other firm rated themselves in the top 5% of performers." So here we have professionals who should be very good at math reaching a conclusion that is mathematically impossible to support.
The next time that you are tempted to evaluate a case based solely upon good results in similar cases that you settled, think twice. Or if you are tempted to indulge in probabilities such as "I have a seventy-five percent chance of winning," think about whether you have any data to support your conclusion. If not, are you engaging in guesswork? Are you pulling a number out of the air? And most importantly, will your client buy it?
MICHAEL P. CARBONE is a senior mediator who has also served as an arbitrator and court-appointed referee. His dispute resolution practice has been built over a period of more than 25 years and covers a wide range of fields. His exceptional combination of transactional and litigation experience enables him to handle complex litigation and other challenging cases.
Michael resolves business and commercial cases, real estate disputes, employment claims, construction claims and defect cases, estate and trust matters, insurance issues, legal malpractice, corporate and partnership disputes, and personal injury cases. In his capacity as a court-appointed referee he has undertaken a wide variety of responsibilities, including sales and appraisals of real property, and the adjudication of trust accounting and administration matters.
He is a member of numerous dispute resolution panels, including the National Panel of Arbitrators of the American Arbitration Association. He is also listed on the mediation and discovery facilitation panels of several Superior Courts.
He is a founder and past president of The Mediation Society, and a member of many other professional organizations, including the Academy of Court-Appointed Masters, the Dispute Resolution Section of the American Bar Association, and the Association of Business Trial Lawyers.
Michael is a frequent author and speaker on alternative dispute resolution issues. He publishes a monthly newsletter entitled "Resolving It" which provides timely advice on strategies for successful mediation and discusses current issues, such as reforming the commercial arbitration process and mediating e-discovery.
Additional articles by Michael P. Carbone