Although the Framing Effect is widely known in modern medicine, it likewise has a great impact on the legal profession. Research shows that the human mind is prone to errors in connection with different ways of framing choices. By reading this article you will discover how different ways of presenting options affect the decision-maker. You might be surprised that the Framing Effect is strongly connected to age – and that in your case it can only get worse.
Kahneman/Tversky discovered in 1981 that different phasing affected their participants’ responses to a hypothetical life and death situation (Tversky, Amos; Kahneman, Daniel (1981). „The Framing of decisions and the psychology of choice“. Science. 211 (4481): 453–458). In the experiment participants have the choice between two different medical treatments for 600 affected individuals. In this hypothetical situation these individuals are suffering from a fatal condition. Whereas Treatment A would result in 400 deaths, Treatment B was given a 33% chance that no one would die, but a 66% chance that all individuals affected would die.
The participants have the choice between these different treatments which are presented either with positive or with negative framing. Treatment A “Saves 200 lives” (positive) and “400 people will die” (negative); Treatment B “a 33% chance of saving all 600 people, 66% possibility of saving no one” (positive) and “a 33% chance that no people will die, 66% probability that all 600 will die.”
The positive presentation of Treatment A was chosen by 72% of the participants but dropped to 22% when presented negatively. Surprisingly, humans are risk-averse when the risk is presented positively but change to be venturesome when the option is presented in a negative way.
Framing effects can be discovered in other contexts as well. Gächter et al. (2009) discovered, that 93% of PhD students registered in time when a penalty fee was emphasized, while only 67% registered on time when earlier registration was awarded with a discount. Plous (1993) cites Rugg, who discovered only 45% of people agreeing to the statement “forbid public condemnation of democracy”. In contrast, 62% disagreed with allowing “public condemnation of democracy”.
The strong evidence that the Framing Effect exerts influence on our life should make us wonder whether this effect has an equally significant impact on the Legal Profession. Quite obviously, the evidence presented above goes contrary to the rationality promoted by most of my fellow rationalists and I.
Age as a Catalyst
Surprisingly, the vulnerability for this bias increases with increasing age. While pre-school children are more of a quantitative-reasoning type, elementary school children and adolescents learn to trade quantitative properties for risky options in a loss frame scenario, with no regard to probabilities. Surprisingly the susceptibility to framing effects is not as strong in adolescents as in adults.
According to research, students are more likely to prefer the positively framed options. Older adults are most susceptible to framing effects. This may be linked to an enhanced negativity bias, though the increase of negativity bias with increasing age is deputed in cognitive science. Other opinions posit that adults have less cognitive resources to defeat the bias. Although adults make decisions more quickly than younger participants, they are more vulnerable to biases, as research has shown.
Debiasing the Framing Effect
Rationalists are developing and learning methods to fight their biases and to defeat their mistakes in decision-making: This is called “debiasing”. Two strategies have been proven effective to fight the Framing Effect.
The impact of the Framing Effect seems to disappear, when communicating in a second language:
Would you make the same decisions in a foreign language as you would in your native tongue? It may be intuitive that people would make the same choices regardless of the language they are using or that the difficulty of using a foreign language would make decisions less systematic.
We discovered, however, that the opposite is true: Using a foreign language reduces decision-making biases. Four experiments show that the framing effect disappears when choices are presented in a foreign tongue. Whereas people were risk averse for gains and risk seeking for losses when choices were presented in their native tongue, they were not influenced by this framing manipulation in a foreign language. Two additional experiments show that using a foreign language reduces loss aversion, increasing the acceptance of both hypothetical and real bets with positive expected value. We propose that these effects arise because a foreign language provides greater cognitive and emotional distance than a native tongue does.
(Keysar, Boaz; Hayakawa, Sayuri; An, Sun Gyu. „The Foreign-Language Effect : Thinking in a Foreign Tongue Reduces Decision Biases“)
Further, older adults were successful in reducing the impact on their decision-making when encouraged to reevaluate and overthink their decision analytically (Thomas, A. K.; Millar, P. R. (2011). „Reducing the Framing Effect in Older and Younger Adults by Encouraging Analytic Processing“. The Journals of Gerontology Series B: Psychological Sciences and Social Sciences. 67B (2): 139). As always, knowing your biases is the first important step – and you achieved it by reading up to this point. Time to turn to the impacts and the benefits of your knowledge in the Legal Profession.
Legal Profession’s Opportunities and Risks
Bibas (2004) argued that whether or not an accused criminal spent time in jail prior to the trial, could have influence on his willingness to accept a plea bargain. A plea bargain would be viewed as way to get an earlier release in contrast to a cause for imprisonment.
Overall, in aspect of the Framing Effects, legal professionals have a considerable advantage over their native-speaker opponent when consulting or negotiating in a second language.
The Framing Effect can have negative effects wherever you or your client are confronted with two decisions. In negotiation you might identify the opposite side trying to frame your client. You might then quickly reframe the choices to at least balance the effect. This is, as described above, not needed as much if you are communicating in a second language of the framing target.
One can think of the Framing Effect as a useful tool to nudge your client into decisions you want him to make. Despite ethical doubts please keep the “automatically second language debiasing” in mind.
When it comes to civil tort claims be aware of framing in legal documents. The court might evaluate the options the respondent had differently based on presentation. It is easy to frame the judge in believing that the decision made was the right or the wrong by presenting it the right way.