By Jill D. Schmid, Ph.D.
I’m a relatively new user of Facebook – turns out my protest against it wasn’t working as there are now over 1.25 billion users. I finally gave in and joined as I was told that people use it to share pictures of their kids, dogs, and vacations. While that is somewhat true, I’ve also found that people use it to “share” and “like” their political, religious, and moral views about every subject under the sun. Now, don’t get me wrong, I have no problem sharing my opinion, but typically I like to do it in a face-to-face setting where we can engage in a discussion of the issue and where people can tell me I’m full of “it” right to my face – no hiding behind a computer screen.
My dislike for Facebook has become more intense recently. I’ve learned in the past couple of months that I’m going to have to take a hiatus from it until the political season is over. I was thinking about the posts and the feedback to those posts when an attorney friend posted the picture above.
This got me thinking about what I do – and how social media and the “sharing” of opinion as if it’s fact influences how people pay attention to, process, and remember information presented to them during trial.
We have long talked about a psychological theory called “confirmation bias” – and it’s exactly what it sounds like: people tend to pay attention to, believe, and remember only that information that confirms what they already believe to be true. In this world, facts don’t matter – if it sounds like, looks like, or feels like what I already think is true about the world – regardless of the truth – then it is “my truth,” which is good enough.
The strength of this fundamental aspect of human nature cannot be overestimated. I (and I like to consider myself a relatively educated person) am subject to its power; judges are subject to its power; your engineer juror AND your janitor juror are subject to its power; you are subject to its power.
Why does it matter? It impacts nearly every aspect of trial – from your initial strategy, to the effectiveness your witnesses, to jury selection, to your opening, to … – you get the point.
No matter the trier-of-fact in your case – judge, jury, arbitrator, or mediator – someone will listen and make an evaluation based on his or her own preconceived ideas about how the world works. If you try to tell them something that doesn’t comport with what they “know” to be true based on their own experience or belief system (and that can be a religious, moral, social, or political belief system), you are facing a nearly impenetrable wall.
What do you do? For the sake of “blog-worthy-length,” I’ve narrowed it down to two things:
1. Big Picture Strategy: With a tip of the hat to the great communication scholar Walter Fisher, you must build your communication strategy around the core concepts of fidelity and coherence. Coherence refers to how well your case – the parties’ actions, facts, testimony, and the law – all hang together. In other words, how well does the story you are telling fit a pattern that people already believe to be true? The characters (witnesses) in your story need to act in a way people expect that people in that situation would act. If they do, then the story “makes sense” and “hangs together.” People also assess stories based on fidelity – does your case story “ring true”? Does your story align with jurors’ experiences and/or their attitudes and values? When what you are stating as a “fact” doesn’t comport with what that person believes to be true, your “fact” becomes suspect. In this world, “logic” is not based on facts – it’s “logic” based on what the particular person you’re talking to decides is their logic. For people who believe that “facts” exist outside of one’s personal experience, this can be very disconcerting. So the first step is to look for the “tough sell” aspects of your case. Are you including a theme or storyline that people naturally find suspect? As an example, we’ve found that at times corporate defendants want to include storylines about the company’s solid history of community involvement and altruism. While this might be a true portrayal of the particular company’s actions, it’s a tough sell and doesn’t cancel people’s belief that companies put profits above everything else.
2. Jury Selection: No matter how successful you are at constructing a case framework that has fidelity and coherence, there are going to be people who are never going to agree with you. This is why it’s imperative that you plan and execute a voir dire strategy based on finding those jurors who will never be able to listen to your case with an open mind. I know that attorneys also want to build rapport, sell themes, and argue the case, but doing so at the expense of finding high risk jurors – those jurors who will absolutely derail your case during deliberations—is a risk you do not want to take.
This is just the tip of the iceberg when it comes to developing an effective strategy to deal with the inherent biases in all triers-of-fact, but these two tips offer a critical starting point.
