How Gut Reactions Drive Case Outcomes

Part 2 in a series on jury decision-making and bias.

By Joani Benoit

“OK, we all know corporations are evil. So let’s get that out of the way.”

So stated a juror in a recent mock trial, a brief preamble before getting down to the business of deciding the case. Such biases are universal, though rarely stated so directly. They are a manifestation of a cognitive framework that guides human thinking and drives decision-making––at trial and in everyday life.

This article gives an overview of the two-part thinking system model widely accepted by current cognitive scientists. Nobel Winner Daniel Kahneman dubs System 1 thinking as “fast” and System 2 as “slow”–– hence the title of his current bestseller: Thinking, Fast and Slow.

System 1 is autonomous, instinctive, and requires no effort to employ. System 1 is the product of a lifetime of experiences and impressions. The generator of intuition, it applies your values and beliefs to the world. Examples of System 1 beliefs: most lawsuits are frivolous; people are inherently good and honest; employers take advantage of their workers; bare-knuckles competition among companies is a good thing for consumers; people should treat their business partners the way they would treat a friend. System 1 beliefs allow humans to organize and interpret our experiences. Without such an organizing structure, life would seem chaotic and frightening.

System 2 requires intention and effort. It processes information sequentially: you cannot add a string of numbers and write a memo at the same time. Weighing information and making decisions happens in this slower domain.

Our default setting is System 1, or fast thinking; it is always operating. When you begin your opening statement, jurors’ System 1 kicks into action: generating an inclination to like you or not, trust you or not, want you to win or not. Jurors (and judges) develop the same kinds of gut reactions to your opponent, to your witnesses, and to your client.

Of course, evidence helps to shape these inclinations. Behavior considered “bad” on the part of either party could bolster an initial gut reaction or cause a revision. A trustworthy witness can turn around a pre-existing bias about a company. Or perhaps more realistically, such a witness can cause a juror to put the bias aside: “Big companies are evil, but in this case they acted fairly.”

But don’t overestimate the power of objective evidence. Again, from Kahneman; “System 2 is more of an apologist for the emotions of System 1 than a critic of those emotions—an endorser rather than an enforcer. Its search for information and arguments is mostly constrained to information that is consistent with existing beliefs, not with an intention to examine them.”
 Daniel KahnemanThinking Fast and Slow, p 103-4

So what do you do about it? How do you understand what relevant System 1 beliefs are driving factors in a juror’s decision process, and how these vary among jurors with different world views? And with that understanding, how does one then build a strategy to deal with those beliefs? Is it possible to commandeer the more analytical mind, wresting it from the control of the biases of System 1?

If, as Hugo Mercier and Daniel Sperber assert, “most decisions are made intuitively”, the first goal must be to understand what those intuitions are and what or who is triggering them. The goal of jury research is to peel the onion: the outer layer is the verdict; we want to know what lies beneath. Given Kahneman’s warning that System 2 is an apologist for System 1 biases, it doesn’t make much sense to focus on System 2 issues (e.g., Did the contract anticipate a change in market conditions?) to the exclusion of System 1 (e.g., Was the company trying to get something for nothing?).

As a jury consultant, the implication for me is to ensure the quality of the stimulus used in the research, and to increase the opportunity for jurors to give feedback that reveals their intuitions.

First, let’s think about the quality of stimulus. In a jury study, participants can only respond to what they see and hear. The story you give the jurors must be complete even though it is abbreviated. If there is damaging evidence that may or may not be admitted, include it in the research. The goal is not to win the mock trial, but to learn which aspects of the case are the most potent drivers of decisions.

It’s also very important to give mock jurors plenty of exposure to the main “actors” in the dispute. Plan for this during depositions and get video of witnesses from both sides.  Jurors’ feelings about the key players will have a significant impact on their desire to reward or punish the parties. For example, you would not want to miss an opportunity to understand how “Seattle-nice” jurors will react to an aggressive sales manager from another part of the country in a case where unfair competition is alleged, even if that claim is, from a legal point of view, a minor part of the overall claim. An entire case might hinge on such a factor.

A final recommendation on stimulus quality: when you make your presentation to the mock jury, make it live. While it is infinitely easier on your trial consultant to have you pre-record the presentation, particularly for multiple panel studies, you lose too much. I want you to be in the room with the jurors; this allows the emotional and physical proximity that is required for them to develop strong intuitions about you and your case. You will develop intuition as well, getting a feel for the parts of your presentation that are working and those that are not.

In addition to stimulus quality, good research cultivates revealing responses from participants as individuals, not just as part of the deliberating jury. I’ve increased my mock trial research emphasis on open-ended answers at all three stages of research: before the jurors know about the case, during the case delivery, and after hearing plaintiff and defense presentations. What people write, their word choices, their level of commitment to their points-of-view, and the analogies they draw are all quite revealing of their intuitions. When given permission to have such intuitions by artfully worded questions, jurors will tell you what you need to know.

(The emphasis on open-ended responses should be carried through tovoir dire. If you are able to have prospective jurors fill out questionnaires, ask a few good questions based on what you learned in the research, and give them lots of blank space to fill. Knowing whether they have a bumper sticker on their car or what magazines they read is much less helpful than knowing, for example, whether they’ve ever been involved in a dispute over a financial agreement and how they resolved it, or other questions relevant to the issues of your case.)

The results from good quality research can be used to develop your trial strategy– one that drives jurors toward your position and minimizes damaging aspects of your case. It is critical to develop a unified case story and choose wisely the witnesses who will tell the story to the jury.

In the next article, I will discuss framing the case story and some of the mental shortcuts that can affect how jurors interpret the evidence and testimony. See you then!

And now for something completely different:

If you’ve ever wanted to fly,  you must see this.

What amazes me is that these guys have lived long enough to get this good! Four-minute video; flying starts at about 1:10. Very cool.


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