By Thomas M. O’Toole, Ph.D.
“I don’t think it would make a difference at all. I’m not even convinced this whole coronavirus thing is real. I don’t know anyone who’s had it.” The irony is that Robert, the mock juror who made this statement during deliberations, was exactly the kind of person who should be most concerned about the virus. He checked off many of the high-risk categories for those most susceptible. Yet, despite daily news reports about death tolls and infection rates, and despite his unique vulnerabilities, he was suspicious that it might all just be some sort of hoax.
There is a long list of possible reactions to anecdotes such as this, but for this week’s blog, I want to focus on one very specific part of Robert’s reasoning process. If you re-read his quote, Robert remarked that he does not know anyone who has had it. For Robert, the lack of any direct or indirect personal experiences with coronavirus led him to call into question the overwhelming evidence of its existence.
Robert is not alone. A shocking number of Americans believe that the pandemic is a hoax according to a poll conducted by the Economist. When you actually talk to some of the people who believe it is all a hoax, you hear many of them use the same reasoning as Robert: they have never had the virus and they do not know anyone who has had it.
This tells us a lot about the power of personal experiences, something I have written about many times in the past. What we are seeing with the pandemic is quite profound. Despite overwhelming evidence (as overwhelming as it gets), there are many people out there who still do not believe the coronavirus is real because it has not been real in their own personal experiences.
When people sit back and try to figure out what is true about the world, there is nothing more powerful than their own personal experiences. After all, empiricism lies at the core of our knowledge systems. We build knowledge from experience. We make sense of the future by drawing on the past. However, any time we use a filter for something, it runs the risk of blinding us to truth or reality. Over-reliance on our own experiences allows us to deceive ourselves about what is happening right before our very eyes.
I have watched hundreds of mock jury deliberations over my career, and it never ceases to amaze me how often jurors use their own personal experiences to make sense of the case. If an argument by one side goes against the jurors’ personal experiences, they are more likely to reject that argument, and embrace the arguments by the other side. If a juror’s personal experiences are consistent with the theory put forth by one party, that juror is likely to embrace that case theory because it feels or seems “right.” If jurors do not feel like they have the explanation they need on certain issues, they will use their own personal experiences to fill those evidentiary gaps. In short, these personal experiences serve as gatekeepers for the acceptance or rejection of one side’s case theory, evidence, testimony, or arguments. The objective truth often takes a backseat in these situations.
This is why it is so important for attorneys to understand the personal experiences of their venire. The two opportunities for this are before and at the start of trial. Before trial, focus groups and mock trials can tell attorneys a lot about the common personal experiences in the trial venue and how they might influence jurors’ perceptions of the issues in the case. This information can help shape your core themes and overall narrative framework. At the start of trial, attorneys can also use voir dire to actually learn about their jurors (rather than waste valuable time trying to persuade), looking for those who no matter what you do, will be unable to accept your framing because it does not correspond to their own personal experiences. Most important, attorneys need to remember that persuasion is not about changing your audience; it is actually about changing your message to fit what your audience already tends to believe. Understanding the personal experiences of your jurors is the critical starting point for success.