“I’ve just heard too many stories about corporations trying to profit at the expense of the ‘little guy.’”
“Everyone sues for everything nowadays. There are too many frivolous lawsuits.”
The greedy corporation. The sue-happy plaintiff. If all the world’s a stage, many people in the audience have a clear idea of who the villain and hero will be when it comes to lawsuits. Although the ultimate goal of a jury trial is to present the case to an unbiased panel, in reality no juror comes in to the courtroom as a blank slate. Pre-existing attitudes, beliefs, and opinions all affect how they view the evidence. Many jurors think they can set aside these preconceptions, but most are unaware of just how subtly these beliefs influence their behavior.
For example, one form of bias, “confirmation bias,” affects how we filter the information we hear and how much weight we assign to any one piece of evidence. As a result, jurors must not only be aware they have a bias, but also be mindful of how that bias affects the process by which they filter the facts of a case.
So, how can you help jurors combat confirmation bias? Today we take a look at what confirmation bias is and discuss how to mitigate its effects on your jurors.
What Is Confirmation Bias?
Confirmation bias is the tendency to only pay attention to, or to give more weight to, information confirming what we already believe. People engaging in confirmation bias also tend to avoid or discount information that goes against their beliefs (Nickerson, 1998). As such, a juror who believes corporations are greedy will pay more attention to evidence seeming to support that belief, while ignoring any evidence painting the corporation in a more positive light. While confirmation bias is more likely to occur around deeply held or emotionally charged beliefs, even beliefs in which an individual has very little stake can be subject to confirmation bias. Therefore, even if it seems as though your jurors should have little reason to have pre-formed opinions about your case, confirmation bias can still be a problem.
Strategies for Combating Confirmation Bias
A well-crafted voir dire is an imperative first step, allowing you to identify and strike jurors who realize they cannot be fair when hearing your case. But what about the jurors who end up on your panel with pre-existing beliefs but believe they can set those aside to hear your case? How can you reach those jurors and prevent them from only seeking out information that supports what they already believe?
Make Jurors Aware of Bias.
We’ve all heard the saying “knowledge is power.” One of the most difficult things about combating confirmation bias is that most people aren’t even aware they are engaging in it. Much like with our discussion of implicit bias, one way to combat confirmation bias is to make jurors aware it can be a problem:
Describe what confirmation bias is. Give examples. (Political examples can be very effective here, as individuals on both sides of the aisle can frequently call to mind people they know who are only willing to hear information confirming their particular political views.) The more jurors are aware of the existence of this bias, the more likely it is they will become alerted to the signs that they or others are exhibiting it. This awareness can also motivate them to listen to and engage with the case. After all, no one wants to be thought of as biased, so informing jurors of ways bias can affect them can encourage them to put extra effort into evaluating the case.
Motivate Jurors to Listen.
In some ways, confirmation bias is easy to engage in because it provides a mental shortcut for jurors. It is easier to selectively attend to information than it is to evaluate every single piece of evidence they hear over the course of a trial. One of the best ways to motivate jurors to listen to all sides is to give them a reason to listen:
Make the case important and relevant to them. Talk about it in terms that relate to their attitudes and experiences. Use their own words to help explain the case. (Inductive jury research, like a focus group, is a great way to learn how they’ll tend to frame the facts and arguments.) In this way, you can make jurors want to hear what you have to say, rather than discount it based on what they already know.
Get Jurors’ Attention.
Trials can frequently be long and technical, which takes a toll on jurors’ ability to pay attention. Fading attention spans frequently result in the use of mental shortcuts like confirmation bias to make sense of the information. Thus, grabbing jurors’ attention can make them less likely to engage in confirmation bias:
Change up your presentation media. Craft a well-thought-out and thematic story. Vary which members of your team are presenting. All are ways to capture, or re-capture, jurors’ attention and motivate them to listen to the facts of your case.
It may be easy for jurors to engage in confirmation bias, but with a little work, you can help them better evaluate your case based on the facts, rather than their preconceptions. After all, according to Shakespeare, “There is nothing either good or bad, but thinking makes it so.”
By: Katrina Cook, Ph.D. – Consultant
Nickerson, R. S. (1998). Confirmation bias: A ubiquitous phenomenon in many guises. Review of general psychology, 2(2), 175-220.