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Using and Abusing Cognitive Biases in Law - Part 1

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Using and Abusing Cognitive Biases in Law - Part 1
6th Annual Current Topics in Ethics & Professionalism

The practice of law is rife with biases. From the instant credibility placed on authority figures to a myopic theory of liability, no one is immune from the subtle influences that exist all around us. You will also hear from experienced lawyers and judges on how they persuade, negotiate and decide in light of cognitive biases.

In this thought-provoking program, you will satisfy your annual Professionalism Hours and:

  1. Learn how the mind makes snap judgments, is filled with preferences for short cuts and can be influenced by ordinary factors.
  2. Hear from a panel of judges on the ethics of using cognitive techniques in the courtroom.
  3. Discover what advocacy tools are effective and questionable from a panel of battle-tested lawyers.
  4. Grant, McLeod and McWatt – Duty to act in good faith; Obligations when making public appearances; Duty to report lawyer misconduct; Duties related to advocacy in the courtroom; Managing client expectations re fees; Refraining from sharp practice.

(15 minutes/judge = 60 minutes)

  1. What advocacy techniques persuade you as a judge, including the use of media/public statements? (7.5 minutes)
  2. What conduct by lawyers/advocates adversely impacts your decision- making or just irritates you, including disclosure obligations and misleading the Court?
  3. What are the best practices (including managing client expectations re fees) that lawyers should be doing in the courtroom that they are currently not doing? (7.5 minutes)
  4. What are unethical or borderline ways you have seen lawyers try to persuade judges and juries, and when should these be reported to the Law Society? (7.5 minutes)
  5. (Similarity bias) Do you find yourself looking at a lawyer's position more favourably if they are well dressed, speak the way you speak, look the way you look, are your age, etc? What do you do to see through to the argument? (7.5 minutes)
  6. (Anchoring bias) There is a perception judges "come down the middle". How do you protect yourself from anchoring bias, such as when one side asks for the moon but is really hoping you'll "come down the middle"? (7.5 minutes)

 

 

Presenter(s)

Yola Grant

Justice Donald McLeod

Justice Faye McWatt