Resolving Your Expert Witnessís Cognitive Biases
July 6, 2011
As a litigator, you need to reduce your expert
decision biases by asking him or her the right
questions, or by hiring a consultant. Otherwise,
these biases will be exposed in depositions and
cross-examinations. For this reason, reducing biases
will increase the odds of winning cases.
Cognitive researchers have identified two modes of
thinking: intuitive and reflective. The first is
referred to as System One, while the second is
referred to as System Two. System One is a mode of
thinking that gives us a stable representation of
the world around us, which allows us to perform
certain actions without much thought. An example of
this would be walking and contemplating something
else at the same time. System Two, on the other
hand, is a mode of thinking that is reflective and
analytical. Professors Thaler and Sunstein
popularized this distinction in their book ďNudgeĒ.
Cognitive biases arise due to System One thinking.
This essay deals with reducing biases by encouraging
witnesses to look at their decision processes
through a Systems Two lens. We need System Two
thinking to complement our intuitive thinking, as we
are unable to fix errors that we do not recognize.
The essay does not deal with errors in strategic and
Value estimation and damage estimation are
susceptible to cognitive biases. However, such
biases should not appear in an expert witnessís
strategic analyses or financial modeling because, as
an expert, he or she would presumably have the
necessary education, training, and peer-reviewed
publications. Otherwise, his or her expertise would
be in question.
You can reduce decision biases in one of two ways.
The first way involves asking the expert witness the
right questions (some of which are outlined below),
while the second involves retaining a consultant to
help your expert witness recognize his or her biases
by encouraging the expert to incorporate Systems Two
thinking. Applying System Two thinking also makes it
easier for your expert witness to find biases in the
opposing partyís analyses.
You and/or your consultant must play the delicate
role of not being seen as a quality control boss.
You do not want to appear to question a witnessís
expertise or integrity. Instead, this complementary
role you and/or your consultant will undertake is
intended to stimulate discussion and debate.
Below are some questions that you or your consultant
need to ask the expert:
- Did the expert consider alternative scenarios? What
are the justifications for deciding on the presented
- Are the presented analogies, if any, relevant to
- Are the distinctions between facts and assumptions
- Is the presented scenario overly optimistic?