Recognizing the Role of Optimism Bias in Case Evaluation

In the immortal words of the Broadway lyricist Johnny Mercer, many people tend to accentuate the positive and ­eliminate the negative. And we sure don’t want to mess with Mr. in-between. Several questions emerge: Is this optimism ingrained in us? And does it sometimes do more harm than good? The answers are yes and yes. Research has recently confirmed that most human beings have an innate optimism bias. But at the same time, that bias can distort our thinking when important decisions have to be made. For litigators, the challenge is how to control our optimism bias when ­trying to accurately evaluate a case.

Although she didn’t necessarily originate the term “optimism bias,” Tali Sharot, a cognitive neuroscientist at King’s College in London and Israel, has spent much of her career studying the inherent tendency of people to make assessments that too often are overly optimistic. Supporting her conclusions, she has written “The Optimism Bias: A Tour of the Irrationally Positive Brain.” And she has given a very popular TED Talk, which has been viewed by more than 1.7 million people. As Sharot explains, the optimism bias is what causes people to believe that things will be better than the facts warrant. So, despite all the statistics, facts, and empirical data, people think they can avoid being one of the 40 percent of married couples who get divorced, that they can smoke without developing cancer, that they can text while driving, or that they can produce children who are well above ­average. In her book, she argues “that humans do not hold a positivity bias on account of having read too many self-help books. Rather, optimism may be so essential to our survival that it is hard-wired into our most complex organ, the brain. … Optimism biases human and nonhuman thought. It takes rational reasoning hostage, directing our expectations toward a better outcome without sufficient evidence to support such a conclusion.” Similarly, David Hirshleifer, a finance professor at the University of California, Irvine, when commenting on how many individual investors inaccurately think they can outperform the stock market, has been quoted as saying, “We are evolutionarily programmed to believe that things will work out.”