Origin Story

Fundamental attribution bias is the cognitive bias that leads us to attribute people’s actions, good or bad, to their character rather than to circumstances. A person of whom we have no opinion and for whom we have no ingroup/outgroup associations leading to an opinion, but whom we learn has done a bad thing, we generalize ((Remember: When we form our cognitive map of the world we generalize, distort, and delete.)) as a bad person; such a person who does a good thing, we generalize as a good person.
This is why you get at most one chance to make a first impression.

Once we have generalized a person as good or bad, we look at everything that he does in light of that generalization. Good people get the benefit of the doubt when they do bad things; bad people do not get the benefit of the doubt when they do good things.
This is the battleground in many criminal jury trials.

Something bad has happened. The State wants to pin it on the defendant, turn him into a bad person, and then get the jury to hold him culpable because he is a bad person. The defense wants to disrupt this chain, either preemptively (for example, with ingroup associations) making the defendant a good person, keeping the State from pinning it on the defendant, or fighting the uphill battle of showing the jury that the defendant is a good person despite the bad thing.

Specific example: self-defense killing. If defendant ended another human’s life (generally frowned upon) then he did so in self-defense. State wants to prove that he did it and take this fact to make him a bad person in the jury’s eyes, so that his self-defense case does not get the benefit of the doubt. The defense wants to show the jury from the beginning that the defendant is likable; or keep the State from proving that the defendant did a bad thing ((Pick a horse: “He didn’t do it,” or “It needed doing.”)); or, as a last resort, overcome fundamental attribution bias to convince the jury that, despite the bad thing, the defendant is not a bad person.
Good luck with that last one. Fundamental attribution bias, like all of our cognitive biases, is a powerful force with deep roots and adaptive evolutionary value. Like all of our cognitive biases, it’s not something that, in the normal course of our lives, we recognize having. ((What use is a bias that you recognize having?))

People ask me occasionally how I became a criminal-defense lawyer. I’ve never really had a good answer. There were no criminal-defense role models in my early life; I didn’t watch a lot of criminal-defense TV shows. “I just always tended to defend people,” was the best I could say. I remember pretty early on riding in a car with my mom driving, on I-270 in the DC area. Some other driver did something boneheaded, and Mom voiced her displeasure with him: “What a jerk!”

I pointed out that he was probably just having a bad day. Might be taking someone to the hospital. Might really need to go to the bathroom. ((Are there things that make people particularly good at their avocations that are not really annoying to their friends and family?))

When we are helping others overcome their biases, it helps if ours control us less than theirs control them. ((Requisite variety! A recurring theme here.)) And as criminal-defense lawyers, helping juries ((… and judges, and prosecutors, and witnesses, and other lawyers, and …)) overcome fundamental attribution bias, it helps us to have more of a handle on fundamental attribution bias in ourselves than most people have in themselves. If we are not tuned to see how circumstances could lead good people to do bad things, ((It works the other way too. There is good and evil in all of us.)) we aren’t going to do the bulk of our clients a whole lot of good.

So from now on that’s my origin story: “I’ve just always been less prone to fundamental attribution bias than most people.” ((I’m sure I have some other blind spot that more than compensates, making my world a worse place rather than better.))

You, at least, will understand.

2 responses to “Origin Story”

  1. I like your post but I can’t help nitpicking a bit.

    It’s not at all clear to me that recognizing and controlling one’s fundamental attribution biases would lead one to be the most effective defender and advocate. I mean simply recognizing that your internal ascription of bad character to your client is a result of his outgroup status and your first impression happening in the context of the client having acted poorly still leaves you with the same emotional response and its harder to convey something to a jury you don’t connect with emotionally.

    Couldn’t it equally be true that the best approach is to leverage fundamental attribution bias in place and simply work on expanding your sense of who counts as being in your ingroup (ideally everyone)? Perhaps if you see the ways in which one is similar to a client and thus irrationally inclined to attribute character (and hence good motives) you will be more effective leveraging this effect in the jury.

    I have no idea if this is true or false. It just seems that one can’t simply infer that because something is an mode of reasoning you will be the most effective advocate by working to minimize it. It could certainly be that cultivating a way to irrationally see the client’s actions in the best light would result in more effective advocacy than clear-eyed evaluation and that’s an empirical question.

    Are are you trying to say that in your experience this is what has actually worked best not merely make a theoretical argument?

    • With any cognitive bias, if you recognize it in a particular situation you have gone a good way toward overcoming it.

      Not sure why you think your comment is a nitpick. Semmelweis reflex? Suggest you read my third and fourth paragraphs while expecting it to confirm what you believe, rather than picking a stupid argument.

      Thanks for reading.

Leave a Reply

Your email address will not be published.