How Shakespeare’s 'Hamlet' can shed light on legal bias
John Ursu, Richard H. Willis and Merrie Jo Pitera.
What’s the problem with Hamlet? A central preoccupation of the characters in Shakespeare’s Hamlet, Prince of Denmark is deciphering what’s going on with the title character.
In the play, Hamlet is called home from college after his father, King Hamlet, dies. After the funeral, Hamlet’s uncle Claudius swiftly marries Hamlet’s mother, Queen Gertrude, and ascends the throne to become Denmark’s new king. Under the watchful eye of Denmark’s reconfigured royal court, Hamlet’s behavior becomes increasingly erratic and the other characters in the play try to puzzle out why.
In so doing, the characters make an error common to lawyers, judges and jurors: They each read their own autobiography onto Hamlet’s behavior. Everyone thinks what’s going on with them—whether it be ambition, obsession, or heartbreak—is also what’s going on with Hamlet. Blinded by their own issues, the characters misdiagnose Hamlet’s problem and, in doing so, set the wheels of tragedy into motion.
Similarly, lawyers, judges and juries all have cognitive blind spots that affect their decision-making. Recognizing and compensating for these blind spots can be the key to lawyerly growth and change.
In his book, The Happiness Hypothesis, psychologist Jonathan Haidt describes the error of failing to understand the limits of one’s own perspective as “naïve realism,” explaining that each of us thinks we see the world “as it really is.”
“It just seems plain as day, to the naïve realist,” Haidt adds, “that everyone is influenced by ideology and self-interest. Except for me. I see things as they are.”
In other words, we are extremely good at spotting others’ biases and extremely poor at spotting our own.
Perceptual errors by lawyers and judges
Naïve realism has substantial effects in our legal system.
In a 2017 Yale Law Journal Forum article, then-federal judge Mark W. Bennett cited that 87% of non-senior federal district judges and 92% of senior federal district judges identified themselves as being in the top 25% of judges in making decisions free of racial bias—a mathematical impossibility.
The effects of implicit bias, Bennett said, are “now the most pervasive problem affecting the criminal justice system” and have been used by scholars to “explain virtually every aspect of racial discrepancies, from police procedures like stop-and-frisk to arrest rates, prosecutorial charging decisions, and plea-bargaining and sentencing.”
The propensity to overestimate our own objectivity has broader implications for our work as lawyers. In 2010, the American Psychological Association published “Insightful or Wishful: Lawyers’ Ability to Predict Case Outcomes,” a large study examining how lawyers did when projecting the results of their own civil cases. The authors found that “lawyers frequently made substantial judgment errors, showing a proclivity toward overoptimism” and “clear evidence of unrealistic litigation goals.”
This overconfidence may affect case outcomes. A study of law students participating in a moot court competition found that “[t]hose with the highest opinion of their cases’ legal merits did significantly worse in moot court competitions than those who viewed the substantive merits of their cases as more debatable.” As a federal judge quoted in the study observed, “[t]he first victim of your persuasion as a lawyer is yourself.”
Correcting for overconfidence
The perceptual errors in Hamlet—overconfidence in the objectivity of our judgments—are errors that we make every day. Judges are now widely trained on techniques that correct for their tendency to underestimate their own subjectivity. In “What Judges Can Do About Implicit Bias,” Jerry Kang of UCLA details techniques that judges can adopt to correct for this tendency. These techniques are no less useful for the rest of us; indeed, Hamlet could have spared himself much suffering if he had used them better. Let’s consider three of these techniques within the context of the play.
1. Start with yourself.
“First we must deflate our egos,” Kang writes. “We must recognize that we are not as objective, as fair, as virtuous as we view ourselves to be.” Indeed, “thinking ourselves to be fair and objective leads us to perform worse” when it comes to our decision-making. In this respect, Hamlet does well. Hamlet is famously indecisive because he wants to make a good decision in avenging his father’s death; Hamlet tests his assumptions, looks for gaps in his own logic, and buys the time he needs to get things right. As Kang writes, “[w]hen we confidently assume that we already get things right, we pay less attention and take less care in decision making.” As lawyers, we should be aware of the human tendency to overestimate our objectivity and correct for it.
2. Improve the conditions of decision.
We can improve the conditions under which we make decisions. As Kang notes, when we are “stressed, overworked, and starved for time,” we “scan alternatives less systematically and completely.” In addition, “intense emotions … are also linked to less systematic thinking” and “time pressures” are likewise “correlated with less accurate decisions.” These are the conditions under which Hamlet makes his most serious error, mistakenly stabbing his girlfriend’s father during a heated argument with his mother. As Kang notes, we should give ourselves “ample time, emotional calm and mental energy.”
Busy, harried lawyers would be wise to follow this advice. According to a 2017 report issued by the ABA’s National Task Force on Lawyer Well-Being, “well-being is an indispensable part of a lawyer’s duty of competence” and requires lawyers to “make healthy, positive work/life choices to assure not only a quality of life within their families and communities, but also to help them make responsible decisions for their clients.” Hamlet failed this test but we don’t have to.
3. Use the perspectives of others
Finally, the more we become aware of our own subjectivity, the more we value we get from others’ perspectives. The characters in Hamlet get it half right; they persistently check in with each other about “the very cause of Hamlet’s lunacy,” as Polonius states in Act 2, Scene 2. But because the characters each think they’ve already independently solved the problem; they skip the most important step: to listen and actually care about what others are saying. As Judge David Ebel of the 10th Circuit once said: “I am not afraid of what I don’t know; I am afraid of what I think I know.”
The rest is silence
For all his eloquence, Hamlet would not fare well as a modern lawyer. In Law & Literature, Judge Richard Posner observes how Hamlet “wastes time building an unnecessary case against Claudius” and is “a person inclined to deliberate before he acts.” His adversaries, on the other hand, might do much better in our modern courtrooms. But if the science of overconfidence teaches us anything, it is that image we have in our minds of the swaggering, decisive and confident lawyer is also the image of someone who is more likely to get it wrong.
In the end, let Hamlet stand as a cautionary tale. Because the secret to being a great lawyer is not in how charming, smart or eloquent we are; it is in our ability to access what others see that we do not. In Act 1, Scene 5, Hamlet tells Horatio that “[t]here are more things in Heaven and Earth … than are dreamt of in your philosophy.”
The good news is that this information is available to us through our clients, colleagues and even our adversaries. But only if we put down our own autobiographies long enough to listen.
John W. Ursu is a business litigation partner at Faegre Drinker Biddle & Reath in Minneapolis. He has led high-stakes matters for corporate clients across the country. John’s cases have been featured in the Financial Times, Wall Street Journal and USA Today.
Richard H. “Dick” Willis is a partner at Williams Mullen in Columbia, South Carolina. He is a fellow of the American College of Trial Lawyers and is the current president of the South Carolina Chapter of the American Board of Trial Advocates.
Merrie Jo Pitera, PhD, is the senior jury consulting adviser at IMS Consulting & Expert Services in Overland Park, Kansas. She is a psychology and communication expert who specializes in complex litigation and trial consulting and has managed hundreds of cases over more than 30 years.
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