by Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
The most powerful thing that shapes how jurors end up deciding a case is not you but the jurors. The baggage they bring to court, not what happened once they got there, holds the most sway. Assuming otherwise is like trying to change the political persuasion of a diehard party-line voter ... in the voting booth. The odds are better that their minds will change the evidence than that the evidence will change their minds.
These preconceptions and biases are resistant to change. Understanding two powerful cognitive phenomena relating to their biases can help you assess jurors more astutely and use your precious few strikes more effectively during voir dire. It can also help you tailor your trial strategy based on who is left on the jury.
Cognitive biases such as the following can systematically impact people’s decision-making. The pairing of the following two cognitive biases can be powerful determinants of jurors’ reactions to a lawsuit: confirmation bias and availability bias.
1. Confirmation bias is the tendency to search for, gather, interpret, focus on and remember information in a way that confirms one's preconceptions [PDF]. It results in people favoring information that confirms their pre-existing beliefs or biases. When they encounter an example supporting their existing belief, they place greater importance on the “evidence” supporting their belief, while discounting examples that do not support their belief, such as evidence that is not useful to proving their predetermined conclusion. In deliberations, this is likely to show up as posing questions leading toward the conclusion they already believe. If they happen to be the foreperson, or a leader, they may even paraphrase the actual verdict questions into wording that leads toward the result they believe and seek. This bias goes beyond simple selective attention; it involves actively filtering and using information, finding a conclusion first and seeking helpful evidence second. It’s like saying, “I know the answer. What’s the question?” Hence, their belief is the gate and you must get past “Go.” It trumps your evidence because information incongruent to their already-existing belief won’t get past the gateway to their thinking, memory, recall or decision-making. Hence, while you may be talking and showing, they aren’t listening or watching – unless you understand their belief first, incorporate it into your thinking, and then figure out how to make your case sync with it. Otherwise, your words fall on deaf ears.
The real 1-2 punch is the combination of confirmation bias with availability bias:
2. Availability bias or heuristic (mental shortcut) refers to the fact that vivid events affect decision making that relies on memory more than other events do. People tend to rely on the most immediate examples of an event and overestimate their probability since memory is biased toward events that are more unusual, more emotionally charged [PDF], more recent, and observed personally. The media reinforces this bias by reporting on more extreme events, enhancing their prominence (availability) in memory. As a result, people overestimate the likelihood of such events, such as carjackings or shark attacks.
Ask people outside the legal profession of any cases they know or remember, and invariably, the “McDonald’s Hot Coffee” case comes to mind and is the basis for believing that lawsuits are frivolous and damages are outrageous (although most people do not know the evidence or law in that case).
Transport this phenomenon into the courtroom, alongside confirmation bias. Imagine that certain evidence is presented in a dramatic, vivid fashion and is emotionally laden, on the backdrop of a mostly ho-hum trial, and is referred to by various witnesses. It will stand out from the rest, be remembered better, and likely have more traction than the rest. It is not just the phenomenon of cumulative evidence pointing to the same thing. It goes further – leading some to believe that the event is more common than it is.
Depending on which side of the courtroom you sit, this can be good or bad news. What to do about these biases?
- Understand them.
- Explore and consider what likely jurors may believe and reverse-engineer your trial strategy and story so they are consistent with this.
- Make sure to explore these as best as you can in voir dire – i.e., their pre-existing beliefs and experiences that may relate to your case or client adversely.
- Understand their agenda. It is more potent than yours.
- Consider how to make your key points or events more or less memorable, depending on your case goal. If possible, consider how to make them more vivid, unusual, repeated – or not. Perhaps you need to find a way to “bury” such a negative event by neutralizing it among others, doing your best to make it ordinary.
By understanding your triers of fact better, you can make extraordinary use of ordinary facts.
Other articles by the trial, litigation, and jury consultants at A2L Consulting discussing juror bias and the persuasion of jurors generally:
- Font Matters - A Trial Graphics Consultant's Trick to Overcome Bias
- 5 Ways the Economic Crisis Has Changed Jurors
- Are Jurors on Your “Team”? Using Group Membership to Influence
- FREE DOWNLOAD: Tips for Mock Trials and Using Jury Consultants
- A2L Voted Best Jury Consultants by Readers of LegalTimes
- 5 Questions to Ask in Voir Dire . . . Always
- 10 Signs of a Good Jury Questionnaire
- 16 PowerPoint Litigation Graphics You Won't Believe Are PowerPoint
- 10 Things Litigators Can Learn From Newscasters
- Is Hiring a Jury Consultant Really Worth It?
- 7 Tips to Take “Dire” out of Voir Dire
- Jury Selection and Voir Dire: Don't Ask, Don't Know
- Could Surprise Be One of Your Best Visual Persuasion Tools?
- When a Good Trial Team Goes Bad: The Psychology of Team Anxiety
- 10 things every mock jury ever has said