by Dr. Ken Broda-Bahm:
We tend to believe that we navigate our way through the world based on our own conscious choices, and this perception of free will is an important part of our identity and our world view. Experienced litigators know that this perception of choice also plays an important role in how jurors and other fact finders construct and evaluate the notion of "responsibility" in a trial context. But what if this perception of free will, based on conscious choice, is a cognitive illusion? It may be. A new study (Bear & Bloom, 2016), for example, shows that what we perceive as choice at a given time can be influenced by events occurring after that time. In other words, we might believe we're making our own personal choices, but that perception can be influenced by subsequent events that cannot possibly be known at the time the "choice" is made. Calling this an "illusion of choice," the researchers point toward some deeper issues regarding the ways we conceptualize the ideas of choice and free will.
That's a heady philosophical topic of course, bringing to mind Plato's allegory of the cave, or the Matrix movies, or the late Robin Williams quip: "Reality: What a Concept!" But there are more down-to-earth implications to this retrospective exaggeration of choice that should influence the ways litigators frame their messages and structure their stories in trial. If, for example, we tend to magnify our perceptions of choice and control as it applies in our own lives, it stands to reason that we would be more likely to project that exaggeration onto others, like parties in litigation. Indeed, that squares with what we see when we are observing jurors in mock trial exercises: The number one topic of discussion is pretty consistently the choices that each party had and what they might have done differently. In this post, I will look at the study on this illusion of choice and discuss the implications it has on the ways choice should be addressed by plaintiffs and defendants in trial.