The Correlation between Confirmation Bias, Emotional Intelligence and Legal Ethics

On July 7, 2015, I read an article titled "Legal Ethics and Confirmation Bias" by Jayne Reardon, Executive Director at Illinois Supreme Court Commission on Professionalism. I shared that article, along with the following comment: "You will note that a solution involves EMOTIONAL INTELLIGENCE (EQ), something which lawyers tend to lack. Fortunately, EQ can be learned."

The lawyer who posted that article for discussion in the American Bar Association's Solo, Small Firm and General Practice Division LinkedIn group responded as follows: "Thanks for sharing great insights! I would be interested to learn more how emotional intelligence impacts confirmation bias."

I replied as follows:

"It has to do with the connection between empathy and perspective taking. Empathy is part of emotional intelligence.

Consider what perspectives have to do with the proposed solution set fort in the article.

Here's to 'The Power of Empathy!'"

Another member of the group then chimed in as follows:

"An ABA study found that attorneys who remain in law for more than five years tend to lack empathy. An inability to see other's persepctive makes sticking to one's own belief, in spite of evidence to the contrary, much more likely. Here's the ABA article: 'How to curb the law firm exodus? Study looks at traits of the most likely to leave law practice.'

Another problem is the nature of the legal profession itself. Attorneys spend years learning how to work backwards to support a conclusion. By this I mean it is the job of the attorney to say 'this is my client's desired result. I must now construct an argument to support it.' When one spends all day, every day, making arguments to justify someone else's behavior then it becomes easy for them to begin justifying or 'confirming' their own behavior.'

The originator of the post then commented: "Thank you both for quick responses. I am starting to see more clearly the link not only between empathy and confirmation basis, but the link between empathy and unethical behavior. Many lawyers who are disciplined for truly egregious behavior can't see how their actions harmed their clients. Am I on the right track here?"

The other contributor stated, "I would agree. I think it's broader than unethical behavior though. I would say that the overarching issue of depression (which is rampant in the legal profession) stems from an inability of many attorneys to look at their choices and make changes - instead they simply justify or 'confirm' their choices."

I then hit it home as follows:

It should be kept in mind that those who are attracted to law school in the first place tend to be logical thinkers (rule oriented) and have low EQ levels. What is being conveyed in this discussion is consistent with everything I know.

I published a blog on this issue titled "The Cause and Effect of the Historical Shift in the Role of Attorneys" on June 7, 2010.

The following is a posting of mine from May 24, 2015:

"Query: Do you think your lawyer has a high EQ (Emotional Intelligence)?

'It has been my observation that Emotional Intelligence plays a key role in driving a 'win-win' outcome on a strategic negotiation. So why do I say that? Understanding the emotional needs of others is an essential part of understanding the overall perspective and underlying interests.'

'As Vanderbilt University Law Professor Chris Guthrie summarizes it, 'Lawyers are analytically oriented, [and] emotionally and interpersonally underdeveloped.''

'Problems can often be solved even before they start with a little bit of massaging and the 'counselor' part of being a lawyer.'


Thank you so much for your comments, I so agree with you.

You are most welcome. I am glad that we were able to help you to connect the dots.

I'm not so sure that it is that lawyers who have been disciplined can't see how their actions harmed their clients; rather, I believe that it is that they can't even see what they did wrong in the first place. If they do recognize it, they justify if. Otherwise, they argue that it was merely a technicality.

As far as harming others is concerned, it goes far beyond lawyers who are disciplined for harming their clients. How about all those whose actions have not been discovered and may not be discovered? Did they not harm their clients? How about all those who believe that damage to interpersonal relationships is just par for the course and that there is no other way of resolving issues? How about all of the families and children who have been harmed because family law attorneys tend to think in such a manner? I can go on and on, but suffice it to say, I firmly believe that lawyers are very much responsible for many of the problems we are facing in society today because emotional intelligence (which is far more than just empathy) is lacking from their repertoire. The good news is that emotional intelligence CAN be learned to a good degree."

The following is a quote of mine that was published in Levine Breaking News on June 6, 2015:

"LBN-COMMENTARY by Mark Baer (Attorney): Social and emotional skills such as empathy are essential to conflict resolution. Therefore, those best suited to work in conflict resolution should have high EQs (Emotional Intelligence). It has long been known that while lawyers tend to be analytical because the field requires it, they generally score poorly in terms of their EQ level. This isn’t a problem when their job is merely to assist in resolving disputes. However, problems ensue in situations in which interpersonal relationships are involved, including but not limited to disputes between family members, employer/employee, neighbors, and business partners. It doesn’t help that people frequently confuse 'conflict resolution or management' with 'dispute resolution.' People with low EQ levels can generally do one, but not the other."

Furthermore, legal disputes are generally resolved through litigation, which is an adversarial process and thereby exacerbates the conflict in order to resolve the dispute. Since I know all of this information, when Corporate America advised me that it had "crowed" me Most Compassionate Family Mediator – California for 2015, it meant more to me than any other award or honor I have ever received.

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