People who are joined together by a dispute — which includes everyone engaged in litigation and their attorneys — are suffering more than most from a universal cognitive bias known as fundamental attribution error. FAE is one of the ways we explain our troubles to one another.
If we have suffered misfortune and are able to attribute our loss to the actions of another, we will universally attribute the series of events resulting in our loss to the bad intentions or evil character of the person we lawyers call “the defendant.”
If we are the defendant, we will universally attribute the series of events resulting in the injured party’s loss to the circumstances causing Plaintiff’s harm (or, of course, to the Plaintiff’s evil intentions).
The attribution of harm primarily to character or motive on the part of the victim and primarily to circumstance on the part of the accused is fundamental because it is hard-wired into the way we think. It is an attribution error because it attributes effect to a particular type of cause. It is error because all human activity and the inevitable conflicts that arise from it
“take[s] place not only between individuals, but in a context, culture and environment; surrounded by social, economic, and political forces; inside a group or organization; contained by a system and structure; among a diverse community of people at a particular moment in time and history; on a stage; against a backdrop; in a setting or milieu.”
In other words, all events, conflicts, injuries, and benefits, all causes and effects are determined both by human actors and by circumstance. We are the cause and the effect of everything that surrounds us and everything that we surround.
How does this knowledge help us resolve our disputes and why does the way we tell our stories hold the key to resolving them? I could give you more explanations from the field of social psychology or I could simply tell you a story. In this case, I tell the story of a book of stories written by Malcolm Gladwell who writes about the stories we tell ourselves and one another about success. Gladwell, we’re told, introduces us to Bill Gates as
a young computer programmer from Seattle whose brilliance and ambition outshine the brilliance and ambition of the thousands of other young programmers. But then Gladwell takes us back to Seattle, and we discover that Gates’s high school happened to have a computer club when almost no other high schools did. He then lucked into the opportunity to use the computers at the University of Washington, for hours on end. By the time he turned 20, he had spent well more than 10,000 hours as a programmer.
At the end of this revisionist tale, Gladwell asks Gates himself how many other teenagers in the world had as much experience as he had by the early 1970s. “If there were 50 in the world, I’d be stunned,” Gates says. “I had a better exposure to software development at a young age than I think anyone did in that period of time, and all because of an incredibly lucky series of events.” Gates’s talent and drive were surely unusual. But Gladwell suggests that his opportunities may have been even more so.
More on using dual narratives to help you settle litigation tomorrow (or later this afternoon)
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