By Dr. Ken Broda-Bahm:
Trial lawyers typically want a smart jury. There are definitely exceptions, but because advocates are prone to believe that they represent the side of light, logic, and truth, the feeling is that, "As long as we get a jury that is smart enough to see past our opponent's error and folly, we are golden!" But apart from the wishful thinking that applies to one's own case assessment, there are other reasons to be cautious regarding the role of a decision maker's intelligence. It is not a given that the smarter juror will be more able to pierce the veil of mental mistakes and cognitive biases. Instead, they actually may be more susceptible.
We are used to thinking of bias as a weakness -- a mistake or error that is overcome by careful reasoning and intelligence. Current trends in cognitive research led by Daniel Kahneman and others, however, are painting a different picture. Rather than being a simple slip of the mind or misperception, cognitive bias can be a product of various mental shortcuts that belong as much to the Ivy Leaguers as to anyone else. Intelligence may not only fail as a protection, but according to some new studies, may even make you more prone to mistakes. This post takes a look at a couple of surprising new studies looking at both logical and emotional intelligence, and provides some recommendations for addressing decision maker intelligence in jury selection and case assessment.
In a recent study (West, Meserve, & Stanovich, June 2012), 482 research participants were tested on various measures of intelligence, and then tested on problems that were structured to assess cognitive bias. In one example, participants were told of a lake where there is a patch of lily pads that doubles in size every day. "If it takes 48 days to cover the entire lake," they're asked, "how long does it take to cover half the lake?" Because the problem uses an easily divisible number, 48, and because the scenario primes with the suggestion of "half," then many will answer 24 days. But, remember, the lily pads double in size every day, so the correct answer is 47 days. Its obvious when you think about it, so you would expect the smarter folks to get it right more often. Based on the study results discussed in Jonah Leher's The New Yorker blog, Frontal Cortex, intelligence doesn't confer an advantage, and the smarter people are actually more prone to make many of these universal thinking mistakes. Why would that be so? The authors find the answer in a so-called "meta-bias" known as "blind spot bias." That is the tendency to assume that others are more susceptible to bias than we are and to have a blind spot for our own habits of reasoning. If even the average person believes they're better than average, the smarter person may feel a certain immunity to bias, and this confidence may serve as a cover for systematic thinking errors.
Emotional Intelligence Increases Susceptibility to Deception
We know that intelligence isn't just logical, it also is emotional. So maybe highly sensitive individuals who score higher in the tests of emotional intelligence would be less susceptible to the pitfalls of confidence. Or not. In a study that parallels the one discussed above, Canadian researchers (Baker, ten Brinke & Porter, May 2012, discussed in Research Digest), assessed 116 participants, testing their ability to discern truth from falsity when reviewing missing-relative press conferences. As parents or spouses came before the media to plead for the safe return of their loved ones, the participants had to discern which among them would be later found guilty of a crime in connection with that missing relative. First, however, participants were tested on their ability to recognize and process emotions, a key component of emotional intelligence. Consistent with other research on lie detection, the study showed that participants tended to be fairly confident in their assessment but, in reality, fared no better than chance at telling the victims from the culprits. But the most interesting finding was that those who scored highest on "emotionality" (relating to empathy and emotional expression) were significantly less accurate. The authors theorized that greater attention to the emotional components of the pleas led to sympathy and "a highly confident, but incorrect, assessment that crocodile tears are a reflection of genuine distress."
So What's the Answer?
So if both logical and emotional sophistication can foster a confidence that lead us astray, what is the answer for the litigator attempting to assess a fact finder? Let me suggest a few quick takeaways.
Don't Assume Your Jury is Above Bias. There is sometimes an implicit tendency to think about juror psychology and strategic communication when we are subtly looking down on our fact finders. When the panel seems uninformed and unsophisticated, we think about the communication strategies that will help us bridge that gap. When, in contrast, we think that we have a panel of good, reasonable, and thoughtful folk, there maybe the countervailing tendency to think, "Let's just put in the evidence, and they'll get it." What this trend in research shows is that bias and error are equal opportunity pitfalls, and even common biases like anchoring on a number are as common, or even more common, among the most intelligent. That means that careful thought and good strategies are required no matter how sophisticated your panel is.
Assess Confidence. One quality we encourage you to be aware of in your potential jurors is confidence. Instead of just looking at relevant attitudes and experiences, it helps to consider the panelists confidence level as well. In both of the cases reported above, the tendency of the more intelligent participant to make more errors is a factor of confidence. The juror who knows that they need to work and pay careful attention, may end up being better than the juror who arrogantly presumes that they'll get it on the first hearing.
Argue Around the Jurors' Blind Spot. One of the conclusions of the cognitive bias study (West, Meserve, & Stanovich, June 2012) is that we are more comfortable in identifying cognitive mistakes in others rather than in ourselves. That tendency dovetails nicely with the advice I've given previously, to place the focus in closing argument not so much on convincing the jurors as individuals, but on preparing your supporters to argue against your detractors. That means that instead of saying, "You might think X... but that would be a mistake," it is better to say, "During deliberations, you might hear someone argue X... and when they do, remind them about...." By targeting the supposed arguments of others, you are playing to jurors' ability to be critics.
Check Your Own Blind Spot. As the recent "settlement series" of posts confirmed, jurors aren't the only ones with cognitive biases and blind spots. When assessing our own cases and preparing for our own trials, we are just as prone to wishful thinking and shortcut conclusions. As West and his associates noted, "People who were aware of their own biases were not better able to overcome them." That is a reason to get outside the bubble of just listening to yourself and your team, and listen instead and especially to other sounding boards like mediators and mock jurors.
The bottom line of this research might be that intelligence is an illusory advantage and, "There's no fool like a smart fool." It calls to mind a comment that has stuck with me over many years. In my undergraduate years, the activist Angela Davis came to my university to speak. At one point, she gave us all a serious look and said, "After you graduate, you all are probably going to work with your minds. And that is fine. But never ever look down on those who work with their hands. It is a lot easier to fool the mind than it is to fool the hands."
Other Posts on Factfinder Characteristics:
- Voir Dire at the Intersection of Your Case and Their Life: For Energy Litigation, that Means Gas Prices
- Sympathy for the Devil, but Empathy for Your Judge
- Don't Mistake Sociability for Empathy
Baker, A., ten Brinke, L., and Porter, S. (2012). Will get fooled again: Emotionally intelligent people are easily duped by high-stakes deceivers. Legal and Criminological Psychology DOI:10.1111/j.2044-8333.2012.02054.x
West, Richard F.; Meserve, Russell J.; Stanovich, Keith E. (2012). Cognitive Sophistication Does Not Attenuate the Bias Blind Spot. Journal of Personality and Social Psychology (June 4) : 10.1037/a0028857
Image Credit: Wikipedia (Creative Commons License), "The Fool" from the Rider-Waite Tarot deck