People generally underestimate how their body (or more precisely: their visceral drives, including hunger, thirst, drug cravings, physical pain and mere emotions) is influencing their behavior and decision-making. The legal profession is prone to this bias as much as anyone, as we will discover in the following. While workings of this bias within our private sphere are limited to our personal relationships and do not harm any ‘outsider’, its ramifications are of an entirely different significance when making their way into our professional life, potentially influencing decisions that have consequences for third parties. Generally, science distinguishes between a hot-to-cold empathy gap (the empathy gap that occurs while being in hot state) and cold-to-hot empathy gap (the effect occurring while being in the cold state).
Hot to cold: The decision-maker underestimates the visceral states influencing him right in the moment. Therefore, to give a very practical example, many diet-books strongly repeat the mantra “never go shopping when you are hungry”: You are more open to buying chocolates when you are hungry than when you are sated. This empathy gap influences medical decisions, as Loewenstein (2005) found in his research. Cancer patients asked to choose between treatments directly after having received their diagnosis might choose differently than they would have chosen in a cold unbiased state. (Loewenstein, G. (2005). Hot-cold empathy gaps and medical decision-making. Health Psychology, 24(Suppl. 4), S49-S56.)
Cold to hot: Loewenstein further advances that people in the cold state underestimate the impact of visceral drives on their decisions, which they will make when in a hot state. Bipolar disorder patients, for example, might have trouble remembering the consequences of a depression and stop taking their medication when in the cold state (as depicted above). To give another example, young men fail to accurately predict the likelihood of risky decisions on their part in the ‘heat of the moment’, when pondering this question in a sexually unaroused cold state. (Ariely, D.; Loewenstein, G.F. (2006). “The Heat of the Moment: The Effect of Sexual Arousal on Sexual Decision Making”. Journal of Behavioral Decision Making. 19 (2): 87–98.)
Making the transition to the legal field, a representative study conducted by Levav et al. found that the likelihood of a favorable ruling by a judge is higher at the beginning of the day (starting at approx. 65 percent) and then steadily declines. Interestingly, after a break for a meal or snack it peaks back up to about 65 percent. This example shows quite clearly with robust data the implications of visceral drives on the rights and equity in front of the law and our legal system. But this bias does not only affect judges and juries. In general, we can expect decisions under a visceral hot state to be different from those in a cold state. In almost all cases, the decisions are unfavorable for the parties involved. Nevertheless, your clients or your employer will expect you to always make decisions in a cold state-manner.
To fight this bias it might prove helpful to ask yourself: What would a third party in a cold state advise me to do? More specifically, consider playing through a short mental conversation inside of your head, asking an imaginary person you consider unemotional or robust in a cold-state what he or she would advise you to do.