By Dr. Ken Broda-Bahm:
There is a central fiction of our jury trial system, and voir dire in particular. That fiction is that bias is the exception, not the rule. When we treat bias as the aberration, affecting a relatively small handful in any jury pool, we fail to appreciate the ubiquity of these habits and shortcuts of human cognition. We carry cognitive biases, not because we are stupid or flawed, but because our brains like to save time and energy. And biases don't necessarily lead to wrong answers: Styles of thinking that seem unfair or irrational in some contexts work just fine in other contexts. Anyone who is interested in applied psychology, and that should mean all practical persuaders including legal advocates, should have a good working knowledge of the various forms and functions of cognitive bias.
To aid in that goal, I recently came across a “Cognitive Bias Cheat Sheet” on the Better Humans site. The guide was written, not by one of the giants of social science research, but instead by Buster Benson of Slack Technologies. The software product manager, who apparently has a high interest and facility with psychology, took four weeks of his paternity leave to sort through some 175 known cognitive biases. He wasn't focused on specific studies, but instead on developing a better way of grouping these biases and describing their functions. Noting that “Cognitive biases are just tools, useful in the right contexts, harmful in others,” he boiled the list down to around 20 unique categories, and then further broke them down into into four general problems that biases help us to solve:
- Too much information
- Lack of meaning
- Need to act fast
- Not knowing what needs to be remembered for later
The goal of stripping away much of the social science lingo and sorting cognitive bias into a few rules of thumb is very appealing in a litigation context. So my focus for this post is to take Benson’s scheme and fill it in with litigation examples.
So let's take a look at Benson's four somewhat conversational labels -- themes we could imagine being voiced by jurors -- along with several applications of each. Within all of these categories, there is an application to legal persuasion that I've expanded on in one or more prior posts.
1. Information Overload Sucks, So We Aggressively Filter
"We notice things that are already primed in memory or repeated."
The trial process is set up for priming, and the previews used in voir dire and opening statements are meant to set a context that influences our judgment. Repetition in the form of repeated themes and graphics, as well as key points carried by successive witnesses and bookended in opening and closing, also works in making some information more available and salient to the decision maker, as long as it isn't carried to the point of annoyance.
"Bizarre/funny/visually-striking/anthropomorphic things stick out more than non-bizarre/unfunny things."
Surprise can be a useful strategy since unexpected information will stand out more than the expected. That is why it can be useful to exceed expectations. Low expectations for the honesty of corporations, for example, can work in the honest company's favor, and the plaintiff who avoids the stereotype and eschews sympathy can also encourage a fresh look.
"We notice when something has changed."
Our brains are drawn to contrast and comparison. So an expert witness, for example, does better to keep the framework on a contrast between experts rather than just explaining and defending their own opinions.
"We are drawn to details that confirm our own existing beliefs."
This is why the first impression that jurors gain from voir dire and opening are so critical: It isn't necessarily set in stone, but subsequent information will be filtered based on that initial leaning. And confirmation bias can also affect jury researchers and attorneys who need to combat their own expectations when testing and assessing their cases.
"We notice flaws in others more easily than flaws in ourselves."
Despite a prohibition on "golden rule" appeals, jurors will commonly scrutinize the parties by asking themselves what they would have done in the same situation. But in applying idealized views of what we would have done, we end up placing a greater burden on the party being evaluated. The victim who failed to protect himself, for instance, can end up receiving more blame than the perpetrator.
2. Lack of Meaning is Confusing, So We Fill in Gaps
"We find stories and patterns even in sparse data."
We are drawn toward stories, and jurors will use that narrative preference to reconstruct the "What happened?" at the center of every case. When jurors are purposefully limited to what the law considers relevant, they will use those stories to fill in gaps and to decide what issues and facts matter most. We are also drawn toward patterns or chunks, and a grouping or a list, like Benson's, can be appealing based on the structure alone.
"We fill in characteristics from stereotypes, generalities, and prior histories whenever there are new specific instances or gaps in information."
Generalizing is easier than noticing specifics. That can lead jurors to evaluate witnesses based on a broad sense of character or credibility before evaluating the specifics of their testimony. Witnesses, parties, and attorneys can benefit from fighting stereotypes by constructively violating some negative expectations.
"We imagine things and people we’re familiar with or fond of as better than things and people we aren’t familiar with or fond of."
Because we prefer the familiar, a central goal in trial persuasion is to humanize the witness, the party, and the attorneys. If jurors can identify on some level, then they're more likely to listen and to trust. The natural and appropriate use of humor (not jokes) also helps to build that familiarity and fondness.
"We simplify probabilities and numbers to make them easier to think about."
When jurors are asked to reconstruct events, to think about what would have happened in the absence of a given factor, they can make many common errors about probability, like seeing an event as inevitable because it happened, or viewing single examples as more compelling than statistics. When it comes to damages, jurors also simplify the categories and can anchor on a number just because it is offered.
"We think we know what others are thinking."
Jurors apply a "Theory of Mind" when evaluating the actions of individuals, constructing an understanding of what thoughts and motivations must have been guiding that individual. For that reason, it is safe to assume that an issue like motive always matters, even when the law says it doesn't.
"We project our current mindset and assumptions onto the past and future."
The most common form of projection in a trail context is hindsight: the risk that must have been foreseeable because we now know that it actually happened. Projecting current knowledge onto the past creates greater and often unrealistic burdens to have expected and avoided an outcome.
3. We Need to Act Fast Lest We Lose Our Chance, So We Jump to Conclusions
"In order to act, we need to be confident in our ability to make an impact and to feel like what we do is important."
This is why a jury that is confident in its ability to make an impact or to "send a message" can be a very dangerous thing for a defendant. Empowered jurors are more likely to play up their "moral clarity" and play down the relativism and ambiguity in order to deliver a big verdict or unexpected verdict.
"In order to stay focused, we favor the immediate, relatable thing in front of us over the delayed and distant"
Jurors are going to relate more to specific individuals than anonymous groups. That is why a loss that can be personified is going to be more influential than one that cannot: An accident victim with present injuries is more compelling than a breached contract with future damages. But, as the Reptile approach notes, the most immediate and relatable risk to jurors is always going to be a risk to themselves.
"In order to get anything done, we’re motivated to complete things that we’ve already invested time and energy in."
As a side effect of the search for consistency, we tend to rely on effort justification, believing that things that require a lot of effort must be worth it. When it comes to juror attention and comprehension, that tendency can be turned to a party's advantage: If full understanding requires a lot of effort, a juror can appreciate that effort, and be proud of the fact that they're not just taking the easy way out in this case.
"In order to avoid mistakes, we’re motivated to preserve our autonomy and status in a group, and to avoid irreversible decisions."
The conservative tendency to avoid risk can translate into a bias for whatever is perceived as the status quo. That might explain why the plaintiff does, and should, have the greater burden of proof, because they're seeking to overturn a status quo. But a tendency to play it safe can also apply to case assessment, biasing attorneys toward making calls that preserve current expectations.
"We favor options that appear simple or that have more complete information over more complex, ambiguous options."
The simple truth for juries is that what is simple is more likely to be considered true. That application of Occam's razor creates a burden on attorneys and experts to not just prove but also to teach and to simplify using every tool available.
4. This Isn’t Getting Easier, So We Try to Remember the Important Bits
"We edit and reinforce some memories after the fact."
Trials are often based on a reliance on witness memory, and in that setting, the witness can be mistaken for a bucket of facts that are simply accessed through questioning. Understanding that memories are often reconstructed does not mean that they're necessarily false or flawed, but it does have implications for effective questioning and ethical preparation of witnesses.
"We discard specifics to form generalities."
We operate based on generalizations, and some of those generalizations are pretty hard-wired. Research on implicit bias, for example, shows that it is the rule and not the exception to make associations and to attribute positive or negative traits based on race, age, disability, sexual orientation and many other social cues.
"We reduce events and lists to their key elements."
For jurors, the trial process is an exercise in taking a dizzying amount of facts and details and distilling them down to the few that are considered key. That process mirrors our everyday acts of evaluation. For example, the psychology of the "peak-end rule" shows that, instead of evaluating events comprehensively, we give the most emphasis to how it is at its peak and at the end. So the highlights and the conclusions matter most.
"We store memories differently based on how they were experienced."
Our mental processing is strongly dependent on the circumstances, and jurors find themselves in circumstances that differ substantially from their daily life. Advocates can appeal to that setting as a kind of temporary identity, drawing on the situational priorities created and emphasized by the trial process and by the courtroom itself.
Other Posts on Bias:
- Make the Truth at Least as Sticky as the Myths
- Account for Disinhibition of Bias
- Expect Racial Bias in Civil Damage Awards
Image credit: 123rf.com, used under license