WASHINGTON, July 19, 2015 − The outcome of your court case may result from the artful skills of the attorneys in convincing jurors of something other than the facts. And many a person, plaintiff and defendant, has been surprised by the conclusions juries can reach.
A unique analysis for attorneys wanting to convince juries has several very well grounded concepts rooted in the world of psychology. These were espoused by lecturing veteran attorneys at the American Association For Justice Conference, just completed this past week in Montreal, Canada.
An entire session at the conference was spent reviewing and praising the concepts found in the 2011 book, Thinking, Fast & Slow, by Daniel Kahneman, a recipient of the Nobel Memorial Prize in Economics.
Kahneman describes our two modes of thought:
System 1 is fast thought, reactive, emotionally based, intuitive, and automatic; it is the unconscious brain at work. A veteran quarterback knows where to look because of instinctual, pattern recognition. A driver makes instant decisions constantly when navigating neighborhood streets and highways. The child whose hand is seen coming out of the cookie jar lies.
Fast thinking is biased. It derives from experience. Fast thinking is easy.
We are most likely to draw favorable conclusions when we are on autopilot. This follows because we default to “easy,” and we make decisions that we have previously established and previously determined were “safe” and “comfortable” courses of action, or inaction. These actions, or inactions, are favorable to us.
We will typically substitute an easy-to-answer question in the place of one that is harder.
Fast thinking is seen when we associate new information with existing patterns, rather than creating new patterns for each new experience.
A person on a jury deliberating a case will most often default to his or her own experiences and make easier choices.
System 2 is slow thought; it is deliberative, complex, reasoned, logical and calculating.
Slow thinking requires effort, it is tiring, and demands much effort. We generally are lazy, and we prefer, subconsciously, to go with the easy answer.
Thus, juries (who mostly all of the time are made up of humans) can be swayed by a number of tried and true methods of case presentation.
Here then are several examples of how fast thinking influences us, and juries charged with making decisions about the case in front of them.
The anchoring effect involves numbers and other “absolute” facts that have been “anchored” in our minds. A poll was conducted and participants were divided into two groups. The first group was asked if Ghandi was more than 114 years old when he died. The second group was asked if he was around 35 years old at the time of his death. The first group provided a much higher number, some even more than 114, in their responses to his age at his death.
How a question or statement is phrased sets an “anchor” that the listener seizes and thereafter adopts as true.
A man went on a tour of a castle and the tour-guide provided many details. Later, the man took his family on the same tour, and another guide provided many details that were very different, many of which drastically conflicted with those the man heard when he took the tour by himself. The man felt psychologically displaced during the second tour, feeling the second guide was wrong, and providing incorrect information. The man had been anchored.
Jurors will often grip “facts” presented first.
The principle of substitution involves moving our minds to questions and problems that are easy.
Linda is a young, single, outspoken and very bright woman. When in school she was deeply concerned about discrimination and social injustice in the world. Asked if it was more likely that she was a bank teller, or a bank teller and an active feminist, the overwhelming response of those polled was that she was a feminist bank teller. This conclusion significantly violates the laws of probability. Those questioned substituted “is Linda a feminist?” for the entire question, dropping the occupation qualifier.
A savvy attorney will dress up his client and bring out his client’s best qualities first, a move that coincides with our subconscious mind’s easy view that people are good, substituting a more deliberative process where a jury must be convinced that the client is not so good.
Loss aversion is a well-known instinctual bias. We fear losses more than we value gains. We thus overestimate benefits and underestimate costs. In 2002, Americans remodeled their kitchens expecting to pay, on average, a bit over $18,000.00. The actual average costs exceeded $38,000.00.
Framing is the concept that involves how choices are presented. Would you rather have really delicious cookies or the same cookies identified as having excess sugar and being really bad for your teeth?
In an experiment people were asked if they wanted surgery that had a survival rate of 90 percent. Others being offered the same surgery were told that the mortality rate was 10 percent. The answer to question one, which was the same surgery, showed “yes” dramatically more compared to the second question.
We want easy, so we think fast. Fast thinking makes us happy. Slow thinking causes dissonance, even hatred, and thus unfavorable conclusions.
Are you happy? How many dates did you have last month? When happiness is first framed referencing dating, fewer people respond “yes” because they are considering their recent dating history, and they are using that as the barometer for happiness.
Most of the time, we are rationalizing beings, not rational beings. We buy a Mercedes because… yet there are numerous other vehicles with the same or better look, and the same or better mechanical guts, for lesser prices. We rationalize why we buy a Mercedes. We rationalize texting while driving and smoking cigarettes. We rationalize virtually everything stupid.
A survey was conducted where people were asked their opinions about President Obama’s State of The Union address. Twenty people gave varying answers, most having absolutely zero ability to detail why they either liked or disliked the speech, but nonetheless, they answered. The survey was conducted the afternoon before the speech was given.
People are incredibly gullible. Respondents thought fast. They assumed Obama’s speech had taken place. They assumed the goodness of the interviewer, that an interviewer would not lie to them and try to embarrass them. They instinctively (fast thinking) answered the interviewer’s questions, as they “anchored” that the speech took place. They substituted in their minds the easy question, what did I think of the speech? for the hard question what concrete opinions do I have? They reacted automatically to avoid being embarrassed (loss aversion) rather than admitting they did not see the speech. They fell prey to a question framed “what did you think of the speech” as opposed to one that might have been “did you see the speech?”
The morale of today’s lesson is, when you have something important to consider, slow down, think it through, ask yourself difficult questions that challenge your knee-jerk instincts, and, if you are called for jury duty, go and do your civic duty with a heightened awareness of the decision-making process.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His new book “Who Will Pay My Auto Accident Bills?, The Most Comprehensive Nationwide Auto Accident Resolution Book, Ever” can be reviewed on http://www.completeaccidentbook.com and can be ordered there, or obtained directly on Amazon: Click here to order
Mr. Samakow’s “Don’t Text and Drive” campaign, El Textarudo, has become nationally recognized. Please visit the website http://www.textarudo.com and “like” the concept on the Facebook page http://www.facebook.com/textarudo.