When Bad Things Happen to Good Trial Lawyers: How jury (human) irrationality leads to unexpected verdicts.

When Bad Things Happen to Good Trial Lawyers:
How jury (human) irrationality leads to unexpected verdicts.

Part 1 in a series on jury decision-making and bias.

By Joani Benoit

Trial lawyers tend to be intensely logical, and in preparing for trial make battle plans driven by logic. But logic and evidence are at best indirect drivers of human decision-making. Beyond your own experience of surprising outcomes, a full body of scientific data supports the idea that people are not always, perhaps even not usually, rational deciders.

Before we get to the problems of juror rationality, test your own logical bent with the following question:

“Jack is looking at Anne but Anne is looking at George. Jack is married but George is not. Is a married person looking at an unmarried person?

A) Yes  B) No  C) Cannot be determined”

Take a moment to answer before reading on.

80% of people, regardless of intelligence, fail to give the correct answer, that a married person is looking at an unmarried person. The answer is “yes”.

A quick review of the facts tells us that because we don’t know Anne’s marital status, we cannot determine the answer for either pair of people: Jack and Anne or Anne and George. Satisfied that we have found the answer, we move on, unaware that with more effort (testing what happens when we assume a marital status for Anne) we will get a different, and correct answer. If Anne is married, the fact that she is looking at George meets the criterion of the puzzle, and if she is not married, the fact that Jack is looking at her meets it.

Why do so many fail to solve the puzzle? For the same reason smart people make major investment mistakes, and juries come to verdicts not supported by the evidence.

Through decades of research documenting thinking errors and biases that plague human cognition, scientists have developed a rich understanding of the way people think, manage complex information, and the shortcuts we reliably employ as we attempt to manage the overwhelming amounts of information we face each day.

These shortcuts, seen in Nobel prizewinner Daniel Kahneman’s categorization of common cognitive heuristics, are predictable and certainly operative in jury decision-making, perhaps having a greater impact on the outcome of a trial than the evidence itself.

I’ve been mining the work of Kahneman, Keith Stanovich and Dan Sperber and Hugo Mercier, among others, for a better understanding of jury decision-making. All of it is very relevant to our work as persuaders of juries, (and judges, panels, clients, spouses, children, etc.). I’ll be summarizing in a series of newsletters what I believe is the most interesting and relevant work and applying it to jury trials.

My next newsletter will describe what cognitive scientists refer to as System 1 and System 2 thinking. Human cognition comprises two types or systems of thinking: one is quick and intuitive; the other is intentional and requires much more effort. Kahneman says:

“… System 2 will endorse many intuitive beliefs, which closely reflect the impressions generated by System 1. …System 1 is radically insensitive to both the quality and the quantity of the information that gives rise to impressions and intuitions.”

This is why I stated earlier that logic and evidence have only an indirect impact on jury decisions. System 1 is highly influential, it makes snap judgments about trustworthiness and it is, in a word, sloppy.

I’ll give a System 1 and 2 primer and the implications it has for my mock trial methodology and my advice to you for cases that will go to trial.

Once I’ve given a background on the two types of thinking, I’ll explore issues of trust calibration and coherence checking and what it takes to get a jury to accept a witness’s testimony, biases that distort the decision maker’s interpretation of testimony and evidence, Mercier and Sperber’s theory of argumentation and how you can get the jury to work for you throughout deliberations, anchoring and the impact on damage awards, and decision fatigue that results in a strong bias for “no decision” verdicts.

The research makes sense of much of what I have observed in mock and real juries over the past 20 years, and has impacted my mock trial design and recommendations to clients. I hope you find it valuable and that you share it with anyone else who might. Each article links to a blog on my website that enables conversation on topics.

This is an area that may feel uncomfortable to you. Because they are hard to understand, measure and control, there is a tendency to discount the entire issue of juror biases and thus obviate the need to understand and manage them. But because of the degree to which such biases impact outcomes, there is huge leverage to be gained. I look forward to working with you to actively manage the non-rational components of your success.

And now for something completely different…

One minute time lapse of a camping trip in the Everglades. A nice mental breather.

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