Getting Jurors to Fight for Your Case

Getting Jurors to Fight for Your Case

Part 5 in a series on jury decision-making and bias.

Estimated read time: 3 1/2 minutes

By Joani Benoit

The collective seeking of truth is the purpose of jury deliberations. A trial is merely the means of preparing a jury to do that work.

A paper published in Behavioral and Brain Sciences (Cambridge University Press), “Why do humans reason? Arguments for an argumentative theory”, presents compelling evidence that the evolutionary purpose of reasoning is primarily social. This runs counter to the standing belief that we reason because it results in better decisions and outcomes on the individual level.

We often reason poorly on the individual level, regularly committing significant errors in logic that lead to sub-optimal outcomes. Cognitive research is replete with data that confirm this; we are biased and error prone, and as Keith Stanovich asserts, these errors are not caused by lack of intelligence. (See Stanovich’s book: What Intelligence Tests Miss: The Psychology of Rational Thought.)

The authors, Hugo Mercier and Dan Sperber, painstakingly build the case that the function of reasoning is not to yield better decisions, at least not on the individual level. Rather, they say, reasoning is a means “to devise and evaluate arguments intended to persuade”. In a peer commentary to the M&S paper Baumeister, Masicampo and DeWall embrace this theory and extend it: “To be sure, to say that reasoning is for arguing does not mean reasoning is irrelevant to seeking the truth, but people seek the truth collectively and not individually.”

The collective seeking of truth is the function of the jury. The M&S paper posits that “reasoning proper” is the “output of an intuitive inferential mechanism”. The horse before the cart of reasoning is intuitive decision-making, which takes place in the subconscious; arguments that support that intuitive conclusion are evaluated and used by jurors to persuade others.

How do evidence, testimony and attorney arguments come into play in this process? These are not stand-alone inputs to the decision-making process; they interact with intuitive and reflective beliefs. The ability to understand this interaction and the relevant underlying beliefs gives us our best chance at addressing them in a way that is productive for our clients.

M&S claim that when no strong underlying belief drives an internal pull toward a decision, individuals evaluate arguments and choose the most compelling. Note that this is not the same as choosing the arguments with the best internal logic or best evidence; rather the goal is to choose the argument that will be the most persuasive when used in the group process.

This explains, according to the authors, why so much of human decision-making does not result in “best” outcomes. (“Best” in cases of objectively measurable outcomes.) We simply make mistakes in the interpretation of data, in the application of logic, and thus in reaching conclusions. M&S argue that this inefficiency in our decision-making is not a flaw in the development of the human ability to reason, but a misunderstanding of the purpose of reasoning. Human reasoning did not evolve to allow humans to reach the best individual decisions, rather to make compelling arguments in a collective setting. To follow their logic, the ability to persuade a group was more adaptive than was perfect decision-making.

It is critical to understand the concept of “motivated reasoning”. When we have a preferred outcome, we are motivated to reason in favor of that outcome. Mercier and Sperber cite a slew of studies that demonstrate this: studies in which people are motivated—to discount a medical finding, to justify a decision, to explain why they should have won a bet they lost, to look for flaws in papers when they disagree with the conclusion, etc. Studies show, they say, that “people use information flexibly so as to be able to justify their preferred conclusions or arrive at the decision they favor”.

To circle back to our work: we need to understand the biases and motivations that the case at hand triggers in jurors. These biases will define the set of arguments that jurors favorable to our side will “use flexibly” in deliberations. We must come up with the most complete and usable set of arguments and package them for “our” jurors’ use.

We must also understand the other side of the battlefield, and arm our jury with counterarguments.

The take away: the best evidence is the evidence that jurors find most useful in persuading others. And the best way to evaluate this is in a mock trial setting, with a methodology geared to argument generation and use. While I have always evaluated the arguments the attorneys make in this setting, I now use methods to allow motivated reasoning to do its job: find the motivation, then get the jurors to construct effective arguments prior to deliberation. Deliberations allow us to evaluate the persuasive strength of the arguments in the social setting for which they are intended.

The Mercier and Sperber paper goes miles deeper than this. They cover issues of trust calibration, belief perseverance, and working with bias. To keep my articles readable in a normal workday, I provide an overview. But I strongly recommend reading the paper linked above in its entirety. And if you would like a CLE customized to your office’s needs, I will provide a CLE of the length you desire and you can learn more about this important work and while earning credits toward your annual requirement.

And now for something completely different…

Gorgeous time-lapse film of Yosemite.

Yosemite Range of Light

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