By Dr. Ken Broda-Bahm:
"Were they even watching the same trial I was?" Lawyers will sometimes wonder, after talking with jurors or hearing a post-trial interview, how perceptions can be so different. At times, it can be hard to believe they're reacting to the same set of facts. We witnessed this type of scenario earlier this week after the third and final presidential debate focusing on foreign policy. Or, I should say, debates, because by all accounts, there were two debates that took place Monday night. There was one debate where Obama was "masterful" and "dominated," while Romney was "heavy on agreement," "rambling and generic" and "choking." Then there was another debate, apparently on the same campus at the same time, where a "desperate" and "seething" Obama was "rude and interrupting," while a cool, calm, and steady Romney "passed the 'commander-in-chief' test."
Of course, in a political context, one would expect the donkeys and the elephants to emerge with different post-debate impressions. That is because of selective perception, or as the social scientists call it, "confirmation bias." We have a tendency to look for, and to notice, that which we expect or want to be true. In the final presidential joust, those with the narrative of a failing and grasping president saw one debate, while those with the narrative of an uninformed and inconsistent challenger saw another. Far from being just a phenomena of political or partisan conflicts, however, selectivity is a factor in all human perception. When we treat a juror or judge as just a collection point for neutral facts, or a machine for fair analysis, we miss that point. In this post, I round out our presidential debate series by looking into a few things this polarization of perception has to say about how cases, as well as witnesses, can be perceived during trial.
In what's become the hallmark of a very long and very close campaign, the examples of specific events, comments, and nonverbals from Monday's debate that observers perceived quite differently is a long list. In a debate focusing mostly on our relationship with Israel and countries that threaten Israel, one exchange stands out. In one of the few very strong moments for Mitt Romney (based on my own perception, of course), is when in advancing his argument over the President's "apology tour," Romney turned to the President and said, "The reason I call it an apology tour is because you went to the Middle East and you flew to Egypt and to Saudi Arabia and to Turkey and Iraq. And by way, you skipped Israel, our closest friend in the region, but you went to the other nations. And by the way, they noticed that you skipped Israel. And then in those nations and on Arabic TV you said that America had been dismissive and derisive. You said that on occasion America had dictated to other nations. Mr. President, America has not dictated to other nations. We have freed other nations from dictators." Agree or disagree, it is not a bad piece of rhetoric.
While Romney's supporters keyed in on that language, Obama's supporters keyed in on the response, where the President implicitly called out Romney's own recent visits: "When I went to Israel as a candidate, I didn’t talk to donors, I didn’t attend fundraisers. I went to Yad Vashem, the Holocaust museum there, to remind myself of the nature of evil and why our bond with Israel will be unbreakable. And then I went down to the border towns of Sderot, which had experienced missiles raining down from Hamas. And I saw families there who showed me where missiles had come down near their children’s bedrooms, and I was reminded of what that would mean if those were my kids, which is why, as President, we funded an Iron Dome program to stop those missiles. So that’s how I’ve used my travels when I travel to Israel and when I travel to the region."
The point is that how you react to that argument and response serves as an accurate litmus test of your political orientation. There is more than enough information in the exchange that people of either political hue can find the evidence they need in order to believe their candidate came out on top. There is at least as much complexity in litigation, and if a case has survived summary judgment and made it all the way to trial, it is almost always the case that a reasonable jury or judge could go either way.
So it is not just the information that you need to worry about, but the motivation that will lead your fact finders to select some information and not other information. You can't escape selective perception, but you can work to channel its impact. Here are three ideas.
Choose the Appropriate Frame
How you describe what someone is about to hear is critical to what they notice and don't notice about it. That is why opening statement is so important: it sets a frame around the evidence. The same principle can apply to witnesses as well. Let's say that you have a key witness and you know the witness can come across as defensive and hesitant, as if he is hiding something. At the very beginning of that witness's direct examination, you could reframe the behaviors that lead to those attributions. For example:
Attorney: Have you ever testified before?
Witness: No, and I'm a little nervous just to be in this chair.
Attorney: I notice that you are speaking very softly, is that the reason?
Witness: Yes, I hate speaking in public...but I understand it is my duty in this case.
In that way, the same behaviors that could be selectively interpreted one way (defensive, hiding, guilty) can be reframed another way (nervous, inexperienced).
Focus on the Utility of the Information
One interesting recent study (Knobloch-Westerwick & Kleinman, 2012) suggests a novel strategy for reducing the tendency to confirm existing beliefs through selective perception. Apparently, when research participants perceive the information as directly useful to themselves, then personal utility has a chance to override confirmation bias. Looking at the way people gathered information during the 2008 presidential campaign, the researchers found that when participants believe their favored candidate is likely to lose, they are more willing to consider and be influenced by a wider spectrum of information about the opposing candidate because, in their view, they're learning about their future president.
In trial, attorneys should always connect information to its utility to jurors who value the act of making what they see as a reasonable and impartial decision. In my experience, even jurors who have developed a strong leaning during trial will still take deliberations very seriously. If you convince jurors that your information is not just true but useful to jurors during their future deliberations, you are increasing the chances that they'll perceive and retain those facts.
Pretest the Perceptions
Even where selective perceptions cannot be fixed, they should at least be known. I've noticed that litigators will sometimes feel they have a strong case because there is a way that jurors could view it strongly. What you need to know is roughly what proportion of jurors will choose that way and what proportion will see it another way. This is a big reason for conducting a mock trial or a focus group on your case: At the end, you will understand much more about the spectrum of ways that different jurors can see your case. But beyond simply testing your case story, it is also frequently useful to test a particular piece of that case -- a key witness, a specific contract provision - that fact finders may end up viewing in different ways. Once you know the range, you can tailor your message so that it favors the best perceptions and target your juror strikes with an eye toward those likely to have the worst perceptions.
I'm actually a little sad to see the debates ending, and I understand I might be somewhat unique in that view. My own selective perception sees these broad public arguments as a rare chance for all of us to focus on some common examples and draw some common lessons. Well, there is always 2016...Clinton versus Ryan?
The 2012 Presidential Debate Series:
Other Posts on Perception:
- When it Comes to Bad Defense Venues, TreatPerception as Reality
- No Blank Slate (Part 1): In Opening, Treat Your Jurors as Motivated Reasoners
- Predict With Care: Adapt to Overconfidence in CaseAssessment
Knobloch-Westerlick, S. & Kleinman, S. B. (2012). Preelection Selective Exposure: Confirmation Bias Versus Information Utility. Communication Research 39:2, 170-193.
Image Credit: Designed by Nick Bouck, Persuasion Strategies, based on imagery by _mixer_, Flickr Creative Commons