By Thomas M. O’Toole, Ph.D.
In his 2011 book Thinking Fast and Slow, famed psychologist and Nobel Prize winner Daniel Kahneman wrote this in his effort to explain the essence of intuitive heuristics: “When faced with a difficult question, we often answer an easier one instead, usually without noticing the substitution.”
While the fundamental concept in this quote is not particularly ground-breaking (at least in today’s world of psychological research), Kahneman’s phrasing eloquently hammers home a critical point for attorneys and how they think about their cases.
To be clear, Kahneman’s book is not about juries or jury decision-making. It is a book about human decision-making in general, particularly in moments of uncertainty. In fact, heuristics are the biases that we rely upon (often unknowingly) when we have to make a decision in a moment of uncertainty or confusion. But that is exactly the kind of context that jurors are forced to make decisions within every day in deliberation rooms across the country. Few cases are as simple as we would like to believe.
For example, think about the totally illogical structure (at least from the standpoint of a juror) of a trial: Jurors sit through days, weeks, or months of evidence and testimony before they are ever given any meaningful education about how they are supposed to decide the issues. By the time the jurors are given the jury instructions on the actual claims in the case at the end of trial, most research suggests they will have forgotten 80 – 90% of what they have heard. In other words, by the time they are actually educated about how they should make sense of all of this information they are hearing, they will have forgotten most of that information.
That’s just one example, since there are endless sources of complexity that create uncertainty for jurors during a trial. The end result is that jurors are left with the kind of difficult situation Kahneman addresses in his quote (i.e. the actual verdict form questions and the often-convoluted jury instructions).
What this means is that the foundation of any successful trial strategies lies in knowing the easier question that jurors will revert to in the face of confusion or uncertainty. There are a lot of great trial strategies that fail because, while clever and potentially persuasive, they fail to address the easier question that the jurors will gravitate towards. Consequently, the critical task is knowing that easier question and, if you don’t, doing the research to learn what it is.
One of the best examples I’ve ever seen of this difficult/easy question scenario is an employment classification class action I worked on years ago. The legal question in the case was whether or not the defendant had exercised so much control over the plaintiffs that they were actually employees (not contractors), but all of our research led us to understand that, if given the opportunity, most jurors would decide the case based on whether or not they believed the plaintiffs were hard-working and responsible, which is a totally separate question. This led to some important decisions in the case. Whereas most defense attorneys might want to limit the number of plaintiffs testifying with their memorable anecdotes of control, we realized that the parade of plaintiff witnesses would actually help us shift the jurors’ critical focus back to the plaintiffs and, more importantly, the simpler question of hard work and responsibility.
In short, once we understood the easy question the jurors would revert to, we were able to make some significant, but not-so-obvious strategy decisions that resulted in a win for the defense. From a strategic perspective, this win was even more enjoyable because we had uncovered a fascinating, peripheral strategy that the plaintiffs never saw coming and likely did not realize had happened even after the verdict came in. This is why it is so important to identify the easy decision. If you can do that, you gain an extraordinary strategic advantage.