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When Smart Ain’t So Smart - Cognitive Bias, Experts and Jurors

Laurie Kuslansky
By: Laurie Kuslansky

Jury Questionnaire, Jury Consulting, Trial Consulting, Juries, Jury Consultants, Jury Selection, Psychology, Expert Witness, Persuasion, Cognitive Bias

Cognitive Bias Jurors Expert Witnessesby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

Ever been told you were too smart for your own good? I never thought it was possible. I might be too smart for someone else’s good, but not my own.

When it comes to jurors and experts, it could be true. Two reasons are cognitive, decision-making biases that are of special interest because they can seriously impair your case. Both follow the lines of “Really? You don’t think like me?!”

Specifically, these biases are:

  • The “Curse of Knowledge Bias" in which well-informed people find it hard to think about problems from the perspective of others who are less informed, and

  • The “False-Consensus Bias", whereby people tend to overestimate how much other people will share their beliefs or opinions. Assuming that their own values and beliefs are normal and typical, they hold the false belief that there will be a consensus between others’ opinions and their own. In fact, when they discover that others do not share the same expected opinion, this bias leads them to believe that there must be something wrong with those people who think differently.


What Makes Very Smart Jurors a Risk?

Individual jurors, who have abided by the court’s instruction not to discuss the case prior to deliberating, often enter deliberations believing that others see the case as they do. Learning that others see it differently initially comes as a surprise based on their false expectation.

If a juror is better informed and suffers from the “Curse of Knowledge” bias, and a reason some jurors disagree is due to a poorer understanding of the case, a lack of background experience or knowledge, or an intellectual deficit, very smart jurors may have a hard time bridging the gap to reach a consensus with these fellow jurors. The “Curse of Knowledge Bias” may cause them to have a tough time seeing the case from the perspective of less-informed people. If so, they will fail to take the perspective of others and fail to find common ground with which to forge a true consensus to reach a verdict.

Depending on your position, that is either good or bad news.

 

What Makes Very Smart Experts a Risk?

Not only are jurors subject to these biases, but so are experts. Someone who is at the top of his or her field of expertise may be very knowledgeable -- but may also be challenged in other types of intelligence, whether emotionally, socially, or as a teacher, persuader or communicator.

Experts who are less experienced in testifying in court may be used to sharing knowledge with peers or students who are highly motivated to learn, but may be vulnerable to these two biases, to the peril of the litigator and client who hired them.

In order to successfully teach and persuade, at a minimum, one must be able to retrace the steps from ignorance to knowledge and pave the way to get there. Otherwise, the expert may really be too smart for their own – and your – good, because they cannot imagine other ways to see an issue and what is needed to understand their position. Assuming too much knowledge or understanding on the part of the recipient (student or juror) is a good way to alienate them.

 

Implications for Jury Selection: Is Your Goal to Reach or Prevent Consensus?

If your goal is reach consensus on a jury, e.g., the plaintiff(s) or prosecutor

In selecting jurors, many factors must be considered in whom to strike or keep, but open-mindedness and social skill, diplomacy and the ability to be somewhat flexible and less egocentric may be traits to consider, rather than just how smart or well-informed a juror may be. Selecting a juror who is smart but rigid can backfire.

If your goal, on the other hand, is to prevent a consensus on the jury, e.g., the defense

It isn’t as simple as getting a contrasting mix of well-informed and poorly-informed jurors to do the trick of avoiding consensus, but it’s a start.

However, if one camp is meek, inarticulate, lacking in passion and unable to stand its ground, they will reach consensus by merely following the lead – whether of the better-informed or more passionate. Hence, one must consider:

Getting jurors who are:

  1. well-informed mixed with ones who are not well-informed;

  2. passionate for you to win or the opponent to lose;

  3. smart, but somewhat cognitively rigid (i.e., have difficulty changing their way of thinking), fail to reflect upon hearing information in voir dire, show an inability to shift if asked to consider something different in voir dire. Are they open-minded and flexible, showing some transition (bad) or do they freeze/repeat their initial response or fail to respond (better)?


Implications for Expert Selection: Is Your Goal to Dazzle or Teach?

If your goal is to dazzle

Your expert may never be able to teach the subject at issue because it is simply ridiculously complicated and all you hope for is for jurors to a) see them as an expert, b) trust their credentials, and c) trust them and their opinion. If so, someone who displays both forms of bias is the man or woman for you.

If your goal is to teach

Don’t just consider whether your expert is smart. Also ask whether the expert is effective at teaching and persuading others because he or she does not suffer from these cognitive biases. How do you do this?

Assess the expert’s ability to assess and understand the mindset of the uninformed lay person. Can they speak their language? Do they voluntarily offer to translate lingo into lay terms? Do they provide useful analogies for the common person? Can they appreciate the complexity of their subject area for the uninformed or why it might not be interesting to outsiders? Can they make it interesting and relevant?

Whatever you do, be too smart for your own good.


Other A2L Consulting articles related to cognitive bias, jury persuasion, and expert witnesses include:

A2L Consulting's Storytelling for Litigators 3rd Ed E-book

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