Tips to Reduce Confirmation Bias in Jurors, Attorneys, and Clients - Part 2 of 2
In part 1 of this topic, we defined confirmation bias and explained how jurors make early, biased judgments due to the fact that all the information they receive is evaluated relative to their pre-established attitudes and beliefs. With an understanding of confirmation bias and its effect on juror decision-making, below are some ways to help reduce it. Notice we say “reduce it” because confirmation bias is not something that can be completely eliminated.
Challenge jurors to look at both sides of the argument.
One approach is to point out to jurors how we all have a propensity in our everyday lives to make quick, intuitive decisions and then selectively use information to support our initial conclusions. Attorneys can then note that the justice system asks jurors to think slightly differently than they would in everyday life, however. In courtrooms, jurors should attempt to objectively weigh all the evidence. Some of it may fit with their pre-existing beliefs and some of it may conflict. But both parties request jurors to weigh the pros and cons of all the arguments and to challenge themselves to question their own biases or assumptions. Simply making jurors aware of the possibility of a potential bias could influence their decision-making process.
Challenge jurors to hold each other accountable.
Another way to reduce the level of confirmation bias among jurors is to ask them to hold each other accountable in the deliberation room. To do this, attorneys can highlight the jury instructions because these are the one thing in a trial that cannot be argued with. Jury instructions are the one thing whose primary purpose is to help guide unbiased, informed decision-making. When jurors want to discuss what they think happened or what may have happened, the jury instructions can help them feel empowered to tell each other, “According to the jury instructions, our job is not to speculate. Our job is to go off what we saw and heard.” In addition, when jurors want to discuss what should have been done by a given party, they need to feel comfortable telling each other, “It is not about what a perfect person/entity would have done. The jury instructions say it is what a reasonable person/entity would have done in a similar situation.” Ultimately, attorneys introducing the idea that there are societal dangers (e.g., making a company pay for something it did not do, wrongly putting a company out of business, and rewarding someone for contributing to their own injuries) of jurors not following the instructions may be the key to fair verdicts. Jurors must feel like they are being “rewarded” for following the instructions closely. And that reward is leaving the courthouse knowing they could set aside their initial intuitions and post hoc rationalizations, engage in logical versus motivated (i.e., biased) reasoning, and render a decision the parties, the judge, and society could respect.
Attorney, Clients, and Confirmation Bias
Jurors are not the only ones susceptible to making irrational and biased decisions, however. Attorneys and their clients also engage in similar behaviors. This is because, confirmation bias is not a “juror thing,” it is a “human behavior thing.” We have seen on many occasions where attorneys and clients will downplay or outright deny the results of a mock trial. Rather than step back, assess what the jurors were saying, and consider that their case may not be as strong as they think it is, attorneys and clients will begin looking for reasons why the results are flawed. They may focus on the recruitment of the jurors, the demographic of the jurors, the length of presentations, whether one side had more time than the other, whether the quality of one attorney was better than the other. The list goes on and on. This is a dangerous way of thinking for attorneys and clients because it could lead to inaccurate assessments of legal outcomes, such as taking a case to trial that should be settled.
Much like there are approaches to take to help jurors reduce confirmation bias, there are approaches attorneys and clients can take to help themselves reduce it.
Force yourself to see the other side.
Too often we get caught up in our own echo chambers of thoughts and beliefs. We tend to surround ourselves with like-minded individuals who espouse similar beliefs to us. We also tend to consume media that supports, rather than refutes our beliefs.
One of the most beneficial aspects of focus groups and mock trials is that it forces attorneys to advocate for the position of their adversaries. Moreover, they need this advocacy to be believable or the research findings will be of little value. Some of the best attorneys we have seen in mock trials are the ones who can make their clients upset by their level of zealous advocacy because, for a moment, the client jokingly questions, “Whose side are you on anyway?” Being able to articulate the counterarguments of your case, and doing it in a convincing manner, does not necessarily give the arguments credibility in the eyes of the jury, but it should give them credibility in the eyes of the attorneys to at least take them seriously enough to consider the best way to approach these arguments.
Be open to being wrong.
In the science field, individuals are constantly testing hypotheses. Sometimes these hypotheses are confirmed, other times they are not. And sometimes, what was once a well-recognized theory is no longer supported by the current evidence (e.g., Phrenology and John Locke’s Blank Slate Theory). Attorneys and clients could do themselves a favor by keeping this in mind. For example, when a new case is filed, they may believe the defense is strong. However, as more information comes in, they must be prepared to re-evaluate the case strengths and accept that it may not be as strong as they once thought. It takes a concerted effort on the part of attorneys and clients to identify their biases, check them at the door, and be open to new perspectives. And keeping in mind that ultimately, it does not matter what they think about the strength of the case; for a case that goes to trial, it is the jury – with all their biases – that decides the outcome.
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