The Fascinating and Frightening Impact of Timing upon Decisions

Part 3 in a series on jury decision-making and bias.

By Joani Benoit, Trial Vision, Inc.

Before moving on to the promised article on framing, let’s take a look at a fascinating and frightening phenomenon: decision fatigue. Frightening, because of the unexpected and dramatic impact upon decisions of timing.

By way of background (for more detail and to see prior articles,  scroll down), our default thinking mode is System 1 – fast, intuitive, automatic – thinking. The reason is that we are “cognitive misers”, a term coined by Susan T. Fiske and Shelley E. Taylor. A body of experiments shows that System 2 thinking requires mental effort, and that we have a limited store of energy for such effort. After periods of cognitive strain, study participants have depleted will power and lowered ability to perform subsequent mental tasks.

The work differentiates decision-making from other cognitive efforts. In a recent article in the New York Times Magazine, John Tierny describes a study in which real-world car buyers were offered a huge variety of options in purchasing a car. As they chose among the options for color, wheel style, horsepower, etc., they became fatigued and began to select the default option for each feature. The researchers were able to manipulate the order in which the features were offered to yield an extra $2000 per purchase. As Tierny reports:

“Whether the customers paid a little extra for fancy wheel rims or a lot extra for a more powerful engine depended on when the choice was offered and how much willpower was left in the customer.”

This is all very interesting research, but could it possibly be a significant factor in real-world jury verdicts?

If we could prove that such a phenomenon affects experienced judges, whose very jobs demand objectivity in decision-making, would you be surprised?

If you are representing Israeli prisoners seeking parole, listen up. And if not, well, listen anyway, because while it will take a bit of work to integrate the following information into your trial work, the potential impact is considerable. And as you read the following, also consider other situations in which you are advocating for a decision: negotiations, mediation, and interactions with your clients.

study published last year by Jonathan Levav of Stanford and Shai Danziger of Ben-Gurion University found that the time during which a convict’s application for parole was considered had a dramatic impact on the likelihood that parole would be granted, adjusting for the severity of the initial crime and other relevant factors.

We find that the likelihood of a favorable ruling is greater at the very beginning of the work day or after a food break than later in the sequence of cases. This pattern is readily evident …the likelihood of a ruling in favor of a prisoner spikes at the beginning of each session—the probability of a favorable ruling steadily declines from ≈0.65 to nearly zero and jumps back up to ≈0.65 after a break for a meal.”

Think about that: This single factor, unrelated to the merits of the individual cases, drove success rates from near zero to 65%. How can one ignore something of this magnitude?

If decision fatigue is evident in research and in practice­–what do we do with that information? How do we use it to improve our ability to drive decision-makers to a favorable outcome?

Some obvious differences can be drawn between the above examples and the ones we face at trial: our judges and juries have to listen for weeks on end to testimony and evidence about a single case, rather than one discreet file to be considered and decided upon at a time. Despite this difference, relevant to us is that mental energy ebbs and flows, with a dramatic impact on decision-making.

Another difference between our work and the study is that our audience most often comprises jurors, who unlike the judges in the study are not trained to be impartial and who are not used to the mental exercise of making such decisions. This suggests to me that our jurors would be more susceptible (or at least not less so) to the effects of peaks and valleys in mental energy.

As the study authors explain, Prior research suggests that making repeated judgments or decisions depletes individuals’ executive function and mental resources, which can, in turn, influence their subsequent decisions. … Sequential choices and the apparent mental depletion that they evoke also increase people’s tendency to simplify decisions by accepting the status quo.”  

In the case of the prisoners, status quo means denying parole and deferring the decision until the next review. In a commercial matter, particularly where there are claims and counter-claims, status quo may be “a pox on both your houses”, which in many cases is functionally a defense verdict.

At this point, if you’ve had a lot of decisions to make today, you may be thinking that there is no real way to act on this information and therefore you will close this window and move on to other things. But if you’ve still got some steam, consider how a trial lawyer might utilize this information.

First, keep track of your jury’s cognitive workload. You or someone on your team should have her/his finger of the pulse of the jury: understand what they have picked up, what they have missed, what needs reinforcement and when they are ripe to be moved to a decision point. When something important gets lost, you need to find a way to get it back in front of them.

Second, realize that the timing of expert witness testimony could have a major impact on the degree to which jurors can absorb and use the information. If it’s complex testimony and the jurors are tired, they will resort to the simplest way to incorporate the content into their mental calculus of the case: ignore it or swallow it whole– depending on how the testimony fits with their Type 1 biases and intuitions.

Third, understand that it requires a great deal of mental energy to revise a belief. If you are asking the jury to accept something that goes against the mental grain, 3 o’clock in the afternoon is not the time to do it.

Fourth, we know that jurors make decisions throughout the trial, not solely after closing statements. Plan to move the jury to make decisions when you know juror energy is high. Set them up in opening to understand the discrete decisions they will have to make, and label those decisions with specific terms and images you will use throughout the trial. When evidence or testimony relates to those key decisions, call the jury to attention with the use of these terms and images with your expert. In essence you are saying, “Hey jurors, wake up. This is that key issue regarding the intent of the parties when they formed the contract and this guy is about to tell you something important.” When they hear the testimony their mental energy will go to determining how that information affects their decision on that issue. Thus the effort of deciding the case is strategically allocated throughout the trial, rather than left until all the information is in.

Fifth, consider decision fatigue when structuring the verdict form. In mock trials, I see the phenomenon in action: jurors will go hammer and tong over the first question. When a small group of jurors fights and wins an uphill battle on question 1, they will often relax and reconcile with question 2. They are tired of persuading the group, the group may be getting tired of them, and having won one they are feeling less urgency to argue their point-of-view.

In some cases the best order is to start with the easy decisions and build up momentum, while in others where all the decisions are tough it would be wise to get the toughest fight up first, when everyone has the required energy to wrestle with a tough decision and possibly make a status quo breaking move. Of course getting your case in front of a representative group of individuals via a mock trial can be very helpful in informing such decisions.

Understanding and monitoring your trier-of-fact’s mental energy is not just one more small thing to add to the already significant burdens on the trial team. The leverage this knowledge gives you is too significant to ignore.

And now for something completely different…

This time we have a musical interlude. Like the fearless base jumpers from the last “completely different” video, this is a person with the passion and drive to acquire some amazing skills. Enjoy!


Who’s the wonk?

Joani Benoit is a trial consultant with 21 years of experience. She lives in Seattle, Washington with her husband and two children.

Like to talk about a case you have? Call me: 206 284-8320, or email me:jbenoit@trialvis.com

Interested in more information about jury decision-making? I’d be happy to tailor a mini-seminar to your group’s interests.

View the Trial Vision website

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