Wednesday, December 19, 2018

Confirmation Bias

Stories make sense of the world.

Being human compels us to find patterns. Or make patterns. And then to make sense of the patterns. Or at least to have fun arguments about them. For some of us, it is this obsession with patterns – logomania itself – that matters in the end, much more than our quibbles over where the impulse originally came from, or even what it inspires us to do. God, natural selection, chance, fate, delusion – the fact that we are all searching for meaning must mean something.

Unfortunately, sometimes the stories we tell ourselves take on a life of their own, increasingly untethered from real world evidence.

In his book Thinking, Fast and Slow, Nobel prize-winning psychologist Daniel Kahneman observes “The normal state of your mind is that you have intuitive feelings and opinions about almost everything that comes your way.” As new sensory input connects to your existing memories and beliefs, your subconscious mind strives to maintain a coherent model of the world around us.

Unconscious assumptions and even stereotypes are not necessarily bad – they’re how our busy brains operate without exploding. The challenge is to recognize and overcome any implicit bias or cognitive fallacies that come between you and the truth. Ordinarily that involves tweaking your mental model around the edges. However, sometimes you’re due for a paradigm shift. 

Regional Services Division Chief Michael Shinn has the hardest job at the Washington Attorney General’s Office. 

Division Chiefs are the primary managers at the AGO, with responsibility for hiring decisions, budgets, etc. Most divisions are organized around substantive areas of the law, from Agriculture & Health to Utilities & Transportation. Twenty-seven of the AGO’s twenty-eight divisions consist of a cohesive and manageable cohort of lawyers, mostly housed together.

The AGO’s Regional Services Division gets whatever’s left over. The Division has seven small offices located in every corner of the state, from Port Angeles to Kennewick. Michael himself is inconveniently based in Vancouver, Washington (“the wrong Vancouver”), across the Columbia River from Portland, Oregon. 

Most Regional Services Division lawyers handle unglamorous high-volume cases in local courts, involving things like foster placements, the termination of parental rights, and worker’s compensation. These attorneys also answer routine questions for state agencies with a local presence. However, more substantive legal questions are generally referred to one of the specialized divisions at AGO headquarters. 

The general counsels of the state’s smaller four-year universities are part of the AGO’s Education Division, and report to the Education Division Chief. The two universities that are larger than Western Washington University – Washington State University and the University of Washington – each has its own dedicated AGO Division, with the Division Chief serving as the university’s general counsel. In a historical anomaly, WWU’s general counsel is stranded in the Regional Services Division.

Michael would be the first to describe himself as a plodding and methodical, “by the book” kind of guy. His overreliance on bureaucratic principles is probably inevitable as he struggles to manage a scattered empire of misfit toys. The Regional Services Division can seem like an example of bureaucracy for its own sake, like the fictional “Department of Administrative Affairs” in the classic BBC comedy Yes, Minister. That doesn’t excuse the fact that Michael and his colleagues broke the law and injured my family. But it’s part of the explanation of how things went wrong.

When WWU’s longtime general counsel retired after thirty years on the job, she left huge shoes to fill. In particular, the gaping hole at the university was not easily plugged with the resources of the catch-all Regional Services Division.

Three years ago, everyone rejoiced when the general counsel role at WWU opened up at exactly the same time as a Yale Law School graduate with a distinguished and varied legal career was looking for job opportunities near his family in Bellingham.

This is what Michael Shinn wrote in his letter introducing me to WWU’s President:

Roger is an experienced attorney who is joining the Attorney General’s Office specifically for this assignment. Roger was admitted to practice in Washington in 1990. Roger spent seventeen years in private practice in Seattle from 1990 to 2015, most recently at Davis Wright Tremaine, where he worked from 2002 to 2015 and was a partner from 2011 to 2015. In addition, Roger worked at the ACLU of Illinois from 1995 to 2000. Roger has extensive litigation and appellate experience which has included many of the substantive areas that arise at universities, including public records, contracts, employment, and civil rights. He has also acted as a generalist in litigation, and demonstrated a high capacity for learning a wide variety of legal areas. We believe this experience and these abilities make Roger well qualified for this role. 

Roger received his J.D. from Yale Law School, and a Bachelor of Arts degree from Brigham Young University. Among other service work that Roger has performed, he was a member of the Washington State Bar Association Board of Governors from 2009-2012. 

We are pleased to have Roger join the Attorney General’s Office and to step into this general counsel role. We believe that Roger fits the criteria that our office sought for this position well, and that he will meet the criteria that you discussed with us when we met in April. 

As Division Chief, Michael was involved in most of the AGO’s bad decisions that ruined my life. But I’m going to focus on one example.

After I’d been at the university for a few weeks, I had an encounter with my novice team leader that triggered strange new anxiety symptoms. They were much worse than I’d ever experienced in a lifetime of managing stress and depression. Eventually my insightful physician Dr. Heuristic  diagnosed me as having Post-Traumatic Stress Disorder. A specialized therapist helped identify how my symptoms were rooted in traumatic events I experienced thirty years before, when I was an overachieving, closeted gay Mormon missionary and student at Brigham Young University. One of the key triggers for my PTSD symptoms is a sense of powerlessness, repression, being silenced, or rendered invisible as I was in my youth. 

As I learned about my disability, I shared all this information with my supervisors. It only made things worse. After hearing about my strong reaction to my supervisor’s bungled coaching, Michael immediately leaped to the conclusion that I was a “bad fit” for the AGO. Michael also concluded it would be too disruptive to the State to get rid of me immediately. Instead, he directed his underlings to document their observations about my behavior. For the next nine months, Michael and his team acted as if they were oblivious to the reality of mental illness, as well as an employer’s legal obligation to accommodate disabled employees.

After I was fired, I requested copies of my file under Washington’s robust Public Records Act.
Reading through these documents months later was eye-opening. It reminded me of the East German experience after the Berlin Wall fell, when citizens got access the secret police’s files. Ordinary Germans discovered the Stasi maintained voluminous files about them based on their family members’ and neighbors’ spy reports. It’s shocking to see what people will say and do to please those in authority. 

Eventually the AGO handed their collated criticisms to the outside investigator who was supposedly looking into my complaint about a homophobic workplace encounter. Instead, the investigator generated a wide-ranging character assassination that I never had the opportunity to rebut. No doubt everyone at the AGO patted themselves on the back for collaborating on such a brilliant piece of faux analysis. 

I recognize my own PTSD-addled actions contributed to serious miscommunications. I also did a terrible job of advocating for my rights under the Americans with Disabilities Act and the Washington Law Against Discrimination. Eventually I had the good sense to hire an experienced disability lawyer. But it was too late – Michael and the attorney designated to represent the AGO refused to talk to my employment attorney or to hear from my healthcare providers. They didn’t want any actual facts or law to interfere with their rush to judgment.

How did a bunch of pretty smart lawyers make such terrible mistakes? And how could an organization dedicated to justice and the rule of law violate its own supposed values?

Confirmation bias is the tendency to interpret any new evidence as confirmation of one's existing beliefs. Confirmation bias is a particularly powerful fallacy because it effects both our unconscious and conscious thinking. 

As I’ve previously discussed in various blog posts, Daniel Kahneman offers a useful model of how our brains rely on two contrasting mental processors, which I've referred to as Thing 1 and Thing 2. Thing 1 is fast and automatic, constantly multi-tasking as it retrieves memories and generates intuitions. In contrast, Thing 2 allocates our brains’ limited conscious attention to effortful mental tasks. 

Thing 1 is responsible for maintaining our brain’s working model of the world around us, which allows us to smoothly interact with everything from gravity to peer pressure. For the sake of efficiency, our brains rely on numerous mental shortcuts, including the presumption we shouldn’t adjust our current world view without a really good reason.

Thing 2 has the power to question and overcome our default biases – even though it usually prefers to lazily coast along with the information and assumptions it receives from Thing 1’s autopilot. Nevertheless, even when we intentionally engage Thing 2’s conscious reasoning process, confirmation bias still can lead us astray. As Kahneman observes, “Contrary to the rules of philosophers of science, who advise testing hypotheses by trying to refute them, people (and scientists, quite often) seek data that are likely to be compatible with the beliefs they currently hold.” As a result, we only see what we expect to see.

The impact of confirmation bias is summarized in the Venn diagram at the beginning of this essay. Our brain gives great weight to factual evidence we encounter that confirms our existing beliefs. Unfortunately, we give similar weight to untrue things that also happen to confirm our beliefs. And we ignore, belittle, and undervalue all those pesky facts that contradict our assumptions. 

Confirmation bias is particularly pernicious when combined with other unreliable thought processes, such as authoritarianism, bureaucracy, and group think. Like our fierce tribal instinct, a default mode of confirmation bias can lead us astray in a complex modern world.

My Mormon ancestors crossed the prairie and the Rocky Mountains before the transcontinental railroad arrived in 1869. They rode in covered wagons or walked with handcarts. You can still see the wagon ruts marking the Mormon Pioneer Trail.

Such deeply-grooved furrows make the journey easier. But sometimes they take you to the wrong destination.

Why do our false stories make sense to us long after a reasonable person would have seen the light? 

“Roger is a bad fit for the AGO” is not a terrible explanation if you’re trying to make sense of the information available to Michael and his colleagues. Our brains rely on easy shortcuts because they usually work. Until they don’t.

On January 7, 2016, Michael summoned me to Seattle to receive my long-delayed performance evaluation. He began the meeting by reading from a secret list of my alleged offenses over the previous six months. Many involved matters I thought had been resolved directly with the affected individuals long ago. Some of his complaints included obvious factual errors where I had already corrected the record, apparently to no avail. Other items were new to me, including the homophobic incident that is the subject of my sexual orientation discrimination complaint, and additional examples of the AGO accommodating bigotry by State employees.  

After reading his catalogue, Michael repeatedly demanded that I acknowledge it reflected a “pattern of serious misjudgment.” He became frustrated when I refused to agree. Instead I objected to his inquisition. 

Yes, Michael, there was a pattern of serious misjudgment. Yours.   

I found this cartoon on a legal blog named “Persuasive Litigator,” in a post by Dr. Ken Boda-Bahm called “Fight Confirmation Bias: Consider the Opposite.” As Dr. Boda-Bahm points out, part of the power of confirmation bias is that it “protects and perpetuates itself.” We see this phenomenon with “fake news”: in the attempt to debunk a falsehood, often you merely reinforce the original lie in the minds of listeners. Asking jurors or listeners to be “fair and impartial” is not enough.

However, there’s one technique that has been proven to dispel confirmation bias: “consider the opposite.” Your brain’s Thing 2 may be lazy and easily duped, but it’s also capable of powerful higher-level thinking. When you consciously approach a problem with something like the scientific method – asking yourself how the evidence contradicts rather than supports your initial assumptions – you can overcome the effects of confirmation bias. 

Eighteen months after starting this blog, I now think of myself as a writer rather than as a lawyer. That’s good for both my writing and my mental health.

Lawyers are very like writers – they turn ideas into words, and vice versa. But most of the time lawyers primarily act as advocates for a particular outcome. As a result, lawyers are skilled at exploiting many of the fallacies that are hardwired into the human brain. 

Like other primates, humans are profoundly social animals. In particular, we’re deeply concerned about social status within our tribe. Evolutionary psychologist Robert Wright argues consciousness arose in human brains not to promote effective decision making, but rather for “image management” – the “hoarding of credit and sharing of blame.” Like Trump University, evolution taught us “shady accounting,” resulting in “a deep sense of justice slightly slanted toward the self.”

We are programmed to deceive ourselves in order to deceive others better. As Wright puts it, the “human brain is, in large part, a machine for winning arguments.” Evolution could have designed us to prioritize finding the right answer. Instead, “like a lawyer, the human brain wants victory, not truth.”

Searching for the truth places you at a serious disadvantage in ordinary litigation. Lawyers are notorious for “gaslighting” their opponents by making things up on the spot, then acting like everyone else is crazy for raising questions. 

On the other hand, I’ve found some advantages to thinking like a writer rather than like a lawyer. My appeal briefs are much readable than the drivel produced by the insurance defense hacks hired by Ogden Murphy, Seattle’s sleaziest bottom-feeding law firm®.” It’s not just the English major in me. It’s also the contrast in the types of arguments we make. Compare a diagram that puts the sun at the center of the solar system, and one that insists the sun, moon, and planets all revolve around the Earth. If I were a judge on the Court of Appeals, I’d rather spend my time reading my story, rather than trying to figure out Ogden Murphy’s incoherent legal arguments in favor of an unjust and incorrect result. 

A writer’s other advantage is that our primary goal is to convey the truth to the reader. That means we’re at much less risk of embarrassing “gotcha” moments. Sure, you make mistakes, which you acknowledge and learn from. But your essential story won't collapse under the weight of some newly discovered evidence that contradicts your previous short-sighted spin. (Unlike Donald Trump's lawyer Rudy Guiliani as he peddles new lies on the Sunday morning talk shows each week.)

For example, one of the first things I wrote for this blog was a long open letter to Washington Attorney General Bob Ferguson describing my experiences at the AGO. After re-reading my "Dear Bob" letter eighteen months later, there’s nothing I would change other than simplifying some of the sentences. In fact, my open letter asked the reader to try exactly the kind of mental exercise that can dissipate the fog of confirmation bias. 

Here’s my answer to the rhetorical question “So why won’t I just shut up and go away?”:   

Let me propose a thought experiment. Assume for the sake of argument the people at all five links in the chain of command at the AGO between you were wrong, and I did not in fact leave behind a distinguished 25-year legal career only to become a boor with a fake disability. Assume the AGO created a new office structure for the Bellingham office without realizing it handicapped the role of university general counsel, then reflexively defended its poor management choices while refusing to communicate with me or my disability attorney about ways to ameliorate their impact on my health. Assume my novice “Team Leader” Kerena Higgins was not prepared to juggle the complicated roles of colleague, new lateral supervisor, and part-time university counsel, and that she intentionally and unintentionally triggered obvious PTSD symptoms, which were corroborated by multiple healthcare providers. Assume the Bellingham Section Chief was well intentioned but passive, and may have failed to communicate vital information about my disability to her superiors. Assume Michael Shinn is an over-extended middle manager with probably the hardest job at the AGO, who is intensely loyal to his longtime colleagues even when he lacks or ignores important information. Assume Deputy AG Christina Beusch is an arrogant and impetuous decision maker with a fierce devotion to the AGO that sometimes clouds her judgment. Assume the taxpayer-paid investigator from Ogden Murphy, under the direction of the AGO's top employment lawyer, falsely informed me his assignment was limited to sexual orientation discrimination issues. Assume this fiasco could have been averted if anyone along the way had the decency to call for a timeout – or had bothered to return my employment attorney’s phone calls. Assume that I provided indisputably exceptional legal services to my clients even under extraordinarily trying circumstances, yet received no gratitude, empathy, or compassion. Assume the AGO’s conduct in Fall 2015 caused strange new anxiety symptoms rooted in trauma that had been buried for thirty years, and the AGO’s and Ogden Murphy’s subsequent conduct caused further physical injuries and distress that continues today. And assume that my family, career, finances, and health have been irreparably harmed as a result.

Then re-read the Ogden Murphy Report. You will see that I was sandbagged. You will remark on the lack of any references to the witnesses and documents I identified, and the omission of any analysis of implicit bias and homophobia. You will marvel at the Report’s credulous recitation of third-hand hearsay as gospel. For example, does the State’s investigator really believe I told a group of university students and administrators that it’s okay for members of Generation X to use “phrases like ‘retard’” [sic]? Do you believe I said that? If nothing else, the purported quotation doesn’t sound like the words of a longtime civil rights lawyer who majored in English and has a special-needs adopted daughter who endured horrible trauma while in State foster care

If you read my tragic story with something other than the AGO’s skewed vision, you will recognize the documents and compilations they chose to rely on in your name are not reliable contemporaneous business records, but rather a self-serving and inept attempt to paper the file before firing an eminently qualified disabled gay single father. You will blush at the aggressively pro-AGO spin, and the jarring logical gaps. And you will know exactly where I am coming from. Even if you sincerely believe your representatives at the AGO and at your vendor Ogden Murphy are utterly without fault, which I doubt, you can understand why I am hell bent on telling my story, warts and all.  

Do you know what else is a tragedy? How the inept and xenophobic folks at the AGO still think their only mistake was hiring a well-qualified outsider to be WWU’s general counsel. That’s how much poisoned Kool-Ade they’ve all chugged together over the last three years.

As I was adding pictures to this essay, my daughter Eleanor looked over my shoulder and asked me if I’m finally getting a tattoo. I said I was still deciding between a bust of Shakespeare, my children’s names, and this blog’s motto:  e pur si muove.

Then I told Eleanor the story of the Italian phrase. Although a favorite since college, it’s taken on an even deeper meaning for me in the last few years. It’s what Galileo is reputed to have said when the Inquisition forced him to recant his belief that the earth moves around the sun. After confessing the then-Catholic dogma that the earth rests motionless at the center of the universe, Galileo supposedly muttered under his breath e pur si muove:  “It still moves.”

It only took 359 years, until the pontificate of John Paul II, before the Vatican finally admitted Galileo was right all along. As Thomas Kuhn wrote in The Structure of Scientific Revolutions and Nassim Taleb in The Black Swan, sometimes it takes a while to escape from clutches of confirmation bias.   

The inconceivable is obvious in hindsight. Eventually.

After each episode of Game of Thrones, the online magazine Slate asks “who is currently the worst person in Westeros?” “Westeros” is the fictional continent whose throne everyone is fighting over on HBO. “Western” is the shorthand everyone in Bellingham uses to refer to our community anchor, Western Washington University. My former employers at the Washington Attorney General’s Office hired me to serve as Western’s chief legal advisor, then spent the next year abusing and discriminating against me. When I’d made enough progress with PTSD to share some of the stories about my experiences, I decided to borrow Slate’s framing device. Stay tuned to see who will ultimately be crowned as the Worst Person in Western-eros…. 

 Click here for other episodes of "Who is the Worst Person in Western-eros?"

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