Every event has an explanation – that is a party’s ‘narrative’ in litigation. But is it credible? Is there another possible explanation and which version fits more exactly with the evidence? Witness testimony is flawed because of the failings of human memory. There is also a cognitive error driven primarily by a psychological phenomenon called ‘self-deception’, which is heavily reinforced in legal contexts by ‘myside bias’ (a specific form of ‘confirmation bias’) and ‘fabrication inflation’.
When a party fabricates or exaggerates a narrative for strategic legal reasons, several compounding cognitive processes work together to turn that deliberate contrivance into a genuinely held belief. As a result a party becomes deluded by their own false beliefs.
Psychologists use the term ‘fabrication inflation’ to describe how the act of inventing or repeating a false claim increases a person’s subjective belief that the event actually happened. Every time a litigant retells their contrived version of events – whether to their lawyer for the drafting of statements of case, or when giving oral evidence in court, the narrative becomes more familiar to their brain. Under the source monitoring framework, the brain eventually misattributes this familiarity to a real memory rather than a self-generated lie.
2. Myside Bias (‘Falling in Love with Your Case’)
Once a litigant commits to a narrative, ‘myside bias’ (or confirmation bias) takes over. The individual begins to actively filter reality, overvaluing any piece of evidence that supports their contrived story while completely discounting, ignoring, or rationalizing away glaring contradictions. In litigation, this is often exacerbated by the adversarial nature of the process, which forces parties to constantly justify their position.
3. Cognitive Dissonance and Self-Deception
Operating under high emotional and financial stress, holding a ‘gladiator-like’ public stance while secretly knowing it is a lie induces severe cognitive dissonance. To eliminate this psychological discomfort and protect their self-image as an honest, wronged party, the litigant’s brain engages in unconscious self-deception. They genuinely forget the act of fabrication and start believing their own lie to project absolute, unshakeable confidence in court.
4. Honest Lying (Confabulation)
In some cases, if the litigant begins filling in the gaps of their memory with self-serving details to the point where they can no longer separate fact from fiction, it crosses into confabulation. Often called ‘honest lying,’ the person provides false testimony without any conscious intent to deceive because their internal reality has completely shifted.
These cognitive errors can be exposed in cross-examination at trial. In Mediation they are roadblocks to a fair and sensible settlement all round. So Mediators need to be aware in order to drill down and reality-test. Thereby saving a litigant embarrassment and potentially the incurrence of catastrophic costs at the end of a Trial.
These cognitive errors and Mediator tools will be discussed in my forthcoming book – the ‘Mediation of Cultural Heritage Disputes’, see www.carlislam.co.uk