Robertson on Lawyers’ Identity, Judgment, and Cognitive Bias
Posted by Jeff Lipshaw
Cassanda Burke Robertson (Case Western, left) has posted Judgment, Identity, and Independence on 
Whenever a new corporate or governmental scandal erupts, onlookers ask”Where were the lawyers?” Why would attorneys not have advised their clientsof the risks posed by conduct that, from an outsider’s perspective, appearsindefensible? When numerous red flags have gone unheeded, people oftenconclude that the lawyers’ failure to sound the alarm must be caused bygreed, incompetence, or both. A few scholars have suggested that unconsciouscognitive bias may better explain such lapses in judgment, but they have notexplained why particular situations are more likely than others to encouragesuch bias. This article seeks to fill that gap. Drawing on research frombehavioral and social psychology, it suggests that lawyers’ apparent lapsesin judgment may be caused by cognitive biases arising from partisan kinshipbetween lawyer and client. The article uses identity theory to distinguishparticular situations in which attorney judgment is likely to becompromised, and it recommends strategies to enhance attorney independenceand minimize judgment errors.