Confirmation bias

‘Confirmation bias’ is the name given to the psychological process by which we all tend to fit the evidence we encounter to our pre-existing beliefs, instead of letting our beliefs be formed by the evidence. A variant of it is the tendency to make up our minds very quickly, on the basis of a very small amount of evidence, and then fit the rest of the evidence to that initial hypothesis. There’s an amusing and informative general discussion of confirmation bias here.

This tendency is pretty much universal, and not going away any time soon. No doubt it’s the reason first impressions matter so much in job interviews. Often it won’t matter – and sometimes (as, for example, if you’re convincing yourself that your own irrevocable life decisions were good ones) it may be positively beneficial. But it’s a bad thing in legal proceedings. Tribunals will do their best to hear all the evidence and then make up their minds on the totality of what they’ve heard. But they are subject to these quirks of psychology like everyone else. Making up their minds too early on in the hearing, and then fitting the rest of the evidence they hear to the theory of the case that they have already formed is (imho) one of the ways tribunals most often get cases wrong.

How does it help to be aware of this? I think there are a couple of practical points.

If you’re giving evidence first

You might think that confirmation bias means there’s a real advantage in giving your evidence first. Even if it did, there’d rarely be anything you could do to exploit that advantage, because in general the order in which the evidence is heard depends on the nature of the case. If you’re claiming constructive dismissal or discrimination, you will go first; if you are claiming ordinary unfair dismissal, the employer will normally go first.

But I think that going first is more likely to be a disadvantage than an advantage. Answering, in public, a series of hostile questions designed to trip you up and show you to be a liar is thoroughly stressful, and not many people show their best qualities under those conditions. Because most cases are really about the employer’s decision-making, their evidence is actually more important than yours. But if by the time they give their evidence, the tribunal already has a theory of the case that goes ‘the Claimant is paranoid and unreasonable’ or ‘the Claimant was lazy and incompetent and deserved everything he got,’ it may do you no good if even if you can tie them in all manner of knots. The tribunal will give them the benefit of every doubt and reinterpret everything they hear to fit their theory of the case.

So don’t expect to win your case while you’re giving evidence: if you win, it’s much more likely to be because of the way your employer’s witnesses give theirs. The best thing you can do while giving your own evidence is to stay out of trouble: in other words, avoid giving the tribunal any reason to dislike you. That means not telling lies, not dodging questions, not making long speeches. Resist every temptation to improve your story, or even buff it a tiny bit round the edges. Just tell the plain unvarnished truth in answer to every question, even when you’d really rather not. This will reduce the risk that the tribunal takes a dislike to you while you’re giving your evidence. (It will also make you really, really boring to cross-examine; but providing your employer’s barrister with entertainment probably isn’t high on your list of priorities anyway.)

Making an opening statement

If you can foresee a difficulty with your case, it may be worth considering making a brief opening statement before the evidence begins.

Tribunals don’t normally expect parties or their representatives to make openings statements, and if you try you may well be met with a response along the lines ‘Oh do shut up – let’s get on with the evidence.’ So if you want to make an opening statement, you’ll need to start by asking permission to do so, and explaining briefly why you want to.

In the right case, this can be quite a powerful way of countering confirmation bias – or putting it to work on your side. The two parties will have competing theories of the case. If the respondent’s is clear and simple, and yours is much more subtle and can only be properly understood once a lot of evidence has been heard, you’re on the back foot already. But if you can reduce your theory of the case to a few sentences, at least the tribunal will know where you’re going when you start delving into the subtleties; and if you’ve made your theory persuasive enough, you might even have managed to engage confirmation bias on your side.

An example may help understand how this can work.

Suppose the respondent’s theory is: C took loads of sick leave over the last 2 years of his employment, and we finally dismissed him because there seemed to be no good reason to expect that to improve.

And suppose your theory is: I was a hard-working and dedicated employee for years, but 2 or 3 years before I was dismissed my employer started hounding me about largely imaginary poor performance, and trumping up disciplinary charges against me which caused me immense stress for months only to fizzle out. They carried on like this until I became ill, and then they dismissed me for the poor attendance that they had caused.

There’s nothing inherently implausible about your theory. But there’s big problem with it all the same: it is much more complicated, and relies on much more evidence, than the employer’s. So if the tribunal doesn’t really know where you’re going, and you start cross-examining the employer’s witnesses about how they treated you 5 years before the dismissal, you’re likely to meet with the objection that this is ancient history. If you’ve told them your theory before you started, there’s a better chance that they will see the relevance of these questions, and listen patiently.

Being well-prepared

That’s always safe advice, isn’t it? But I think confirmation bias is one of the reasons why it’s good advice. If the facts are on your side, you can win your case even if you turn up late, your bundle’s in a muddle, your witness statement is a single 50-page paragraph all written in capital letters, and you haven’t done a list of issues or a chronology at all. But all those things will tend to make the tribunal feel tired, and disinclined to like you. One of the ways of getting confirmation bias engaged on your side is by claiming the moral high ground in all those small ways. It’s the tribunal equivalent of arriving at a job interview on time, smartly dressed and with clean fingernails, a pleasant smile and a firm brief handshake.

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