I’m sitting poolside at my local YMCA. My daughter has recently discovered that she’s part fish or, if you ask her, part mermaid. So, I end up poolside frequently and end up frequently watching members of my little town propel themselves past me in the lap lanes that I sit next to. It’s a good time to think about questions that have very little impact on my daily life. I came up with this one for the sake of this month’s topic: “Grant, how physically fit are the older men in your community?” At blazing speed, my brain goes to work. “Well, you know that when you’re here with your daughter, you see far more women than men swimming, don’t you. They filled that aqua-fitness group you just saw. No men in that group. And just look out there right now! There are six women in the pool but only one of the two gray-haired men in here is doing laps. The other one is a terribly lazy professor who is writing instead of swimming. Ergo, propter, sum: the older men of the town are likely unfit—especially compared to the women.”
You must admit that the lawyer in you is cringing right now. It’s easy to see my example above as a sampling error—a big error, no matter how many trips my little mermaid and I have taken to the YMCA’s pool. Let’s not, however, imagine that we lawyers are immune from such thinking. As Nobel-Prize winner Daniel Kahneman demonstrated repeatedly in his research and testing, we all fall prey to the lure of “availability.” That is, our brains will tend to answer a complex question of judgment by answering, instead, a simpler—but unknown and subconscious—question instead. So, instead of getting out and taking measurements of the fitness of the middle-aged and older men in my little town, my brain answers a different and easier question: How many instances of the category are available to my mind and how fast is the flow of examples?1 Kahneman and his principal research partner, Amos Tversky, named this mental shortcut the “availability heuristic.”2
Suppose you and I are at the poolside contemplating the frequency of Hollywood divorce rates. Good Morning America, The Today Show, and Twitter have us covered. We are awash in stories of Hollywood break-ups. Thus, they pop into our brains easily and plentifully.3 The likely conclusions are absolutely unavoidable for even the most brilliant lawyer among us. We will overestimate the divorce rate among Hollywood types. Kahneman says that when we make this judgment, we are really just describing how plentiful our examples are and how easily they come to us.4 After all, it’s far easier for us to answer an easy question we can substitute in than to think through the question in a laborious but principled way that would inevitably lead us to conduct research on Hollywood divorce rates. It’s now time for your second admission of the day. Admit that you already whispered this once to yourself when reading the sentences above: “Well, the number of divorces among Hollywood types has to be higher!” And don’t let me get your brain going on how likely it is that a politician will be involved in a sex scandal.5
I cannot even begin to explore the number of litigation applications and hazards the availability heuristic presents. Given our blog space, I will posit only one question for litigators and litigation students to meditate upon: If I know that people will substitute a complex question of judgment on size, frequency, or likelihood with a question of how quickly they can recall numerous examples, what is my jury likely to think about when I ask them to consider “Judgment-Question X”? Voir dire applications spring to my mind, but perhaps that’s because I’m teaching voir dire the day after tomorrow in my summer trial advocacy class.6
However, I have saved the best part for last. A psychologist by the name of Norbert Schwarz decided to test the effects that being forced to recall numerous examples would have on one’s ultimate judgment question. He asked participants in different groups to list six and twelve instances in which they acted assertively and then asked both to rate their own assertiveness. The groups that had to list only six instances of assertiveness rated themselves more assertive than the groups that had to list twelve.7 An odd result considering that one group had twice the number of examples at hand! Conversely, people that had to list twelve instances of their meekness were more likely to conclude that they weren’t meek at all. An availability paradox! The harder people had to work at coming up with examples, the more likely they were to make judgments in the opposite direction of the heuristic.8 So, in other experiments, they were less likely to think they were regular bicyclists the more instances of cycling they had to recall. They were less impressed by a car the more advantages of the car they had to list. Finally—and here’s one for the courtroom—they were less confident in a choice when they were asked to produce arguments justifying the choice.
I just looked up at the pool. I’ve been tapping away for an hour and a half now. There are seven people in the pool room now. Six of them are mermen. My daughter is the lone mermaid. I can only conclude that the mermen in my town must be very fit.
 See, Daniel Kahneman, Thinking Fast and Slow 130 (2011).
 Id. at 129-130.
 Id. at 130.
 See, Id.
 This is an example of another fun cognitive bias called “priming.” I am primed right now to see lots of things through the lens of voir dire because I’ve been immersing myself in the subject while getting ready to teach it.
 Daniel Kahneman, Thinking Fast and Slow 133 (2011).
 Id. at 132.