The 30 in 30 Briefing Series focuses on a new cognitive bias, fallacy or heuristic in every single publication. By this Briefing we want to provide you with a rough overview on the cognitive theories most likely to occur in your legal or business profession. Today’s content: The Availability Heuristic.
Originally discovered by Amos Tversky and Daniel Kahneman (Tversky, A., & Kahneman, D. (1973). Availability: a heuristic for judging frequency and probability. Cognitive Psychology, 5, 207-232.), this heuristic has a lot of different applications in and impacts on our life. In short, it states that we “base [our] prediction of an outcome on the vividness and emotional impact rather than on the actual probability” (see here), meaning that we rate events more likely to occur if they come easier to mind.
Before applying this knowledge on the legal profession, we should understand it by a few examples: People erroneously rate words beginning with the letter “r” to be more likely than words having “r” as their third letter. Causes of death are felt to be more likely if they occur in the news often. This, in fact, can be measured. Gigerenzer discovered that following 9/11 Americans were more likely to travel by car than by plane, presumably for reasons of perceived safety. However, this opposes the finding that on average 40,000 people die on US roads in contrast to fewer than 1,000 in airplane accidents – and even less when travelling with commercial airlines.
In a legal context, the most important risk associated with this heuristic is making a decision when the decision-maker does not know all the relevant facts. For instance, your client is more likely to evaluate a risk using the emotional impact rather than relying on facts. If the client has recently been confronted with a substantial loss in a litigation proceeding, the vividness of this experience may arbitrarily affect the client’s estimate for the likelihood of winning the next proceeding. In order to account for the availability bias, one could consider providing the client with the most accurate information available or possibly pointing out the mere existence of the Availability Heuristic.
Another field of the Availability Heuristic is its potential to be used in manipulation. Given the fact that people rate events that they have imagined shortly before to be more likely, one could try to influence decisions of others by making them focus on and imagine an event clearly in their mind. In negotiations and trials, you may want to look out for the opposing counsel using phrases like “let us imagine for a second what could have happened…”
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