Strategies for Overcoming Anti-Fact and Anti-Expert Bias at Trial

Lately, we have been doing a lot of reading and writing about emerging “anti-fact” or “anti-expert” views and their impact on trial practice.  As we have discussed in previous blogs, people are much more inclined than in the past to use their own experiences as the only evidence needed for how the world works and the truth or falsity of particular events. A research article in the Journal of Political Psychology took this finding one step further and compared one’s willingness to accept scientific evidence to their political ideology. In a nutshell, conservatives were more likely to hold less favorable views of scientific experts and data than liberals.

While this is intriguing and begs many questions, in today’s blog, I want to look at the issue in a slightly different way and address this question: If people are suspicious of experts and evidence, as an expert in both the law and your case, what is the best presentation style to persuade jurors that your view of the case – that your case theory and facts are, in fact, correct?

The answer is probably not all that surprising: Adopt a curious and confident style, while avoiding arrogance at all costs. Unfortunately, self-reflection and assessment are quite difficult. As M.P. Lynch stated in Arrogance, Truth and Public Discourse, “The arrogant rarely believe they are so.”

Lynch explains arrogance this way: “The epistemically arrogant think that other people have nothing to teach them….epistemic arrogance is relational. It is both self-regarding and an other-regarding attitude. It is self-regarding by being an orientation towards one’s own worldview, the sense of knowing it all, of having it all figured out. But it is other-regarding in that it is an attitude that, by definition, concerns your worldview’s possible relation to other people or other sources of information. The epistemically arrogant are arrogant towards someone or some source trusted by others, to which they feel superior.”

Bottom line, arrogance will only heighten your audience’s dubious views of experts or facts; facts delivered from an arrogant source frames the communication act as one where the speaker is telling one what to believe as opposed to leading them to believe something. That’s not just mincing words. From the ancient Greeks to today, one of the foundational principles of effective argument is the necessity to allow room for your audience to reach the conclusion itself. In this way, the audience owns the conclusion – the argument, the fact, the position – and they are much more likely to advance and defend that conclusion in deliberations.

Here are four ways in which arrogance manifests itself and tools for combatting it:

• Signaling your intent to persuade: An effective tool for nullifying someone else’s persuasive intent is to simply point out that person’s desire to do so. Often referred to as “forewarning” – an old adage is “Forewarned is forearmed.” In a nutshell, when one is warned that someone is going to try to get them to think something or do something, they will often put up a wall, some resistance, and are much more likely to fight it off. The “Oh, hell no!” response is quite powerful. This means that you should avoid using language in your own communication that essentially does the same thing. Phrases like “There’s only one way to look at this…” or “You must find that….” Or “I will show you why there’s only one conclusion….” Yes, there will be a few caveats, but that is for a much lengthier discussion and one that should occur on a case-by-case basis.

• Condescension: While we all know it when we see it, it’s very hard to see in ourselves. It’s a tone, an eye roll, a finger wag, a stare. It’s the words, “Oh really?” “Are you serious?” “We are to believe…” It’s the snide side comment. The dismissive wave of a hand. There’s a fine line to walk between confidence and condescension (or arrogance). Condescension says I’m superior; you should listen to me. “Arrogance requires advertising. Confidence speaks for itself.” An article addressing the difference states that “Confidence attracts other people…arrogance excludes others and is used as a way to demotivate and demoralize other people…People who are arrogant feel the need to excel over everybody else, often to the detriment of others.” In today’s anti-expert world, condescension is the kiss of death. What’s the antidote? Being confident and curious. Anti-condescension does not mean one has to be small, quiet, or meek. Strong tone and body language can signal “I know what I’m doing,” without the “I’m better than everyone here” overtones. A curious tone can come from simple phrases like, “That’s interesting, tell me more about that…” during a witness examination. Or for opening, putting yourself back into the position you were when the case first came through your door. “When I first started learning about what had happened here, I was struck by a few things that I had never even considered…..I was curious how…so I did some digging and was struck by…then I turned to a few others who knew far more about the subject and I learned…at that point I had even more questions, questions you all probably have too.” Bottom line, you are trying to invite jurors on the journey of discovery with you.

• Despising the other side: You have likely worked on the case for years; your path with opposing counsel has crossed too many times to count. While it is possible to remain friendly, often resentment builds so much by the time trial rolls around, everyone has reached the boiling point. The problem? Your jurors have no idea. They have no background for understanding the resentment and, often, resentment manifests itself as (yep) condescension. You are so sure you are right and you are now so mad about all of the tactics taken by opposing counsel that the snideness, the rudeness, and the haughty expertise is on full display. Instead, let opposing counsel remain worked up, while you simply do the work. Pick the battles you need instead of fighting every one of them. We have seen the power of a well-timed “We agree your honor,” or “We’re good with that” response to a heated appeal by the opposition. In one memorable experience, the other side was so caught off guard they continued to fight, all while the jurors looked on, until the Judge had to remind them to stop by pointing out that we had already agreed. Not only were we more likable in that situation, it also began seeding the ground that we were fair, open-minded, and focused on one thing only – justice.

• Fortifying your opponents’ themes and arguments: Here is one final tip couched in an example. A couple of years ago, we were working on a breach of contract case. The defendants argued that the plaintiffs were engaged in underhanded and aggressive tactics that made them impossible to work with, hence their actions were warranted. The plaintiffs’ counter was that their aggressive tactics were warranted because of the ways in which the defendants treated them. On the playground, I think this could be summarized as a “he started it” showdown. Openings illustrated two very different communication styles: one calming and somewhat conciliatory; the other aggressive and all-knowing. The problem was not just the arrogance as already discussed, but the fact that the behavior only reinforced the underlying accusations. As a juror, if I’m trying to figure out who really “started it,” I needed to look no further than the representation of the parties.

In many cases, there are likely behaviors or attitudes that are “on trial” – the inattentive doctor, the retaliatory boss, the careless investigative process. Whatever the accusation, the trial team should be aware of how their own behaviors in the courtroom could reinforce the oppositions’ argument.