Bias and Recall in Associate Evaluations

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By David Cruickshank

The first quarter of the year is the season of verbal evaluations for associates in many law firms. The written performance reviews have come in from several lawyers, the data on hours and billings are reported, and the availability of rewards (bonus, salary increments) is known. Now the partners sit down with the associate to evaluate the last year’s performance and establish a plan for the year ahead.

This process requires both judgment and prediction: judgment about the quality of past performance and prediction about the associate’s future in the law firm. Many firms use some standard “messages” about performance and next steps to ensure a positive future.

These judgments and predictions are susceptible to unconscious bias and recall problems that are well known in psychology, but perhaps unknown to law firm partners. Three of these problems are explored here.

“Similar to Me” Influence

The associate begins the review conversation with small talk: “Did you see that playoff game yesterday? The tight end for [insert favorite NFL team] made an amazing catch.” If the partner is also a football fan, she engages in an agreeable small talk conversation. That innocuous conversation will influence the judgment of the partner positively because she senses that this shared interest equals a shared commitment to some other shared value, such as excellent client service. “Because the associate is ‘similar to me’ in some respects, he will perform as I would.”

Of course, this is objectively not true. Perhaps the associate’s hours last year were below par. Some clients complained about him. His time written off was higher than anyone in the practice group. “Similar to me” may not overcome the objective evidence, but it may get the partner to downplay hard evidence over an impression of predicted performance.

The Anchoring Effect

“Anchoring” is a cognitive bias that makes us focus too heavily on an initial piece of information in making decisions or assessing probabilities. Psychologists speak of an “anchoring and adjustment heuristic” (a rule of thumb or educated guess). Will this associate get past her fifth year and be put on the “path to partnership” track?

In a study by Dan Ariely (as reported in Wikipedia), an audience was first asked to write the last two digits of their social security number and consider whether they would pay this number of dollars for items whose value they did not know, such as wine, chocolate and computer equipment. They were then asked to bid for these items, with the result that the audience members with higher two-digit numbers would submit bids that were between 60 percent and 120 percent higher than those with the lower social security numbers, which had become their anchor.

The partner evaluating this associate may have read about a poor performance by this associate two years ago, or at the beginning of this evaluation year. That performance incident stands out and will be the “anchor” against which later performance is assessed. The partner will attempt to adjust for new information, but this early cognitive bias is difficult to overcome unless the partner is aware of it. Even objective evidence and subjective reports of tremendous improvement will be measured against the anchor. The partner ends up putting the associate in a “wait and see” category, when perhaps she deserved better.

The Recency Effect

“The recency effect” refers to our tendency to recall information from short-term memory or later items on a list. If the evaluating partner reads 12 incoming reviews over three weeks, the last two read may come to mind more easily. Further compounding the problem is the fact that those individual reviews, written in December, may have used more feedback evidence from the last quarter (more recent) than earlier in the year. Recency seems to contradict the anchoring effect, but it is different because it is not a judgment heuristic. It is a trick we use to remember information. As such, we can guard against it more easily by making sure that all information is before us, whatever time that information arrived, before we make judgments.

As if it was not already hard enough to make evaluation judgments and predict associate success, along come the psychologists to make the partner’s job more challenging. Partners who care deeply about talent development will want to explore and understand bias and recall problems in associate reviews.