Overcoming the Death of Facts at Trial

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During a recent mock trial, when a juror expressed an opinion that was directly refuted by the evidence in the case and a few other jurors tried to tell him that he was wrong, two other jurors shut them down by asserting, “No, come on, let him talk; he has a right to his opinion.” This is not an isolated incident. Over the years, we’ve heard mock jurors express this sentiment, but over the last couple of years, it is much more obvious and impactful. While we’ve frequently written about the fact that jurors make sense of a case by applying their own experiences and attitudes (i.e., their world view), the elevation of opinions over facts is a bit different and has wide-ranging implications for trials.

Recently, much has been written about the attack on facts, and how a reliance on opinion, or what one wants to be true, is more wide-spread, and even lauded. Whether it’s Kellyanne Conway’s response when confronted with Sean Spicer’s false claims about the size of Trump’s inauguration crowds, and she said, Spicer was giving “alternative facts,” to re-writing or ignoring the science on COVID-19 and climate change, people are being conditioned to distrust science, experts, even what they can see with their own eyes and, instead, rely on their own “research” and opinions.

In his 2017 book “The Death of Expertise,” Tom Nichols addressed this issue. In an article he wrote for the Federalistbefore the publication of his book, he wrote:

I fear we are witnessing the “death of expertise”: a Google-fueled, Wikipedia-based, blog-sodden collapse of any division between professionals and laymen, students and teachers, knowers and wonderers – in other words, between those of any achievement in an area and those with none at all. By this, I do not mean the death of actual expertise, the knowledge of specific things that sets some people apart from others in various areas. There will always be doctors, lawyers, engineers, and other specialists in various fields. Rather, what I fear has died is any acknowledgement of expertise as anything that should alter our thoughts or change the way we live.

To reject the notion of expertise, and to replace it with a sanctimonious insistence that every person has a right to his or her own opinion, is silly.  Worse, it’s dangerous. The death of expertise is a rejection not only of knowledge, but of the ways in which we gain knowledge and learn about things. Fundamentally, it’s a rejection of science and rationality, which are the foundations of Western civilization itself.

A review of Nichols’ book in the New York Times, summarized the issue: “This is part of a larger wave of anti-rationalism that has been accelerating for years — manifested in the growing ascendance of emotion over reason in public debates, the blurring of lines among fact and opinion and lies, and denialism in the face of scientific findings about climate change and vaccination.”

Clearly, this has had an impact on how society is addressing everything from policing to COVID, but what does it mean for your next jury trial?  How does the “death of expertise” influence litigation when persuading jurors with evidence (facts) is likely influence (and undermined) by this cultural shift? How do you present your experts considering there will likely be jurors on your panel who trust their own opinions more? How do you teach and motivate jurors to fight back against those who are loudly asserting that their personal opinions count more than the evidence? Here are four key takeaways:

First, you should update your jury selection strategy to look for those who exhibit the following characteristics: They view themselves as experts and/or freely share their opinions on a wide range of subjects. These types of people will think of themselves as opinion leaders and have a low ability to detect contradictions or faulty reasoning, and likely they do not care about being consistent. Additionally, they affirmatively respond to questions like: “If presented evidence by an expert that contradicts your own personal opinions or beliefs, would you distrust the expert?” or “….would you rely on your own opinion more than the experts?” Bottom line, those who know little, but profess to know a lot and are not afraid to share their opinions to “enlighten” those around them, are problematic on most juries. For more on this, look up the Dunning-Kruger effect, summarized by Nichols this way: “…the dumber you are, the more confident you are that you’re not actually dumb. And when you get invested in being aggressively dumb, well, the last thing you want to encounter are experts who disagree with you, and so you dismiss them in order to maintain your unreasonably high opinion of yourself.”

Second, the strength of a juror’s identification with a political party is likely to have a much stronger influence on how they view your case than it did in the past. Clearly, it’s no secret that we’ve become more polarized than ever. On a wide variety of topics, those identifying as Republican or Democrat have markedly different responses (i.e., on whether identify fraud is a major problem with voting by mail, 43% of Republicans say yes, versus 11% for Democrats).  On our national survey on people’s attitudes on a wide range of subjects, including how COVID-19 might have changed how they view various litigation types and practices, we also asked about party affiliation and how it impacts their world view and could impact their view of trial attorneys. On their world view, up slightly from the percentage we found before COVID-19, over 56% of the respondents said that their “political beliefs have a significant impact on how [they] view the world and other people.” Up from 31% pre-pandemic, now nearly 40% said that “if [they] knew or could figure out with reasonable certainty the political party of the attorney representing one of the sides in a lawsuit, and that political party was different than [their] own, [they] would find that attorney’s case less credible.”

Third, you should re-think how and when you use experts. This is not to say that you don’t use experts, but now more than ever, the expert will need to be relatable. An expert always needed to think about how to build credibility and trustworthiness, but adding relatable to the mix will help jurors not view the expert as some know-it-all, arrogant, paid voice to “trick” or deceive them in some way. Think about how people are “choosing” the voices they listen to today. For some, it’s not the scientist or the economic professor, but the television news host.

Additionally, look for ways the expert’s testimony could appear to contradict how real people view the world and/or their likely beliefs or assumptions about that world. As an example, in a recent mock trial, the expert’s testimony was that a certain medical condition is extremely difficult to diagnosis. This was a fairly important position for the jurors to adopt as it was the foundation for why what the plaintiff said should have happened next, didn’t happen. However, nearly every mock juror disagreed with the expert. That initial disagreement meant that almost everything else the expert said was also ignored. In a survey we conducted a year ago (pre-pandemic), we asked jurors for their views on experts. We found that 45% of the respondents agreed that “if an expert witness testified about something that [they] could figure out on [their] own, [they] would ignore that expert’s testimony.” We have plans to update this data, and our hypothesis is that this number has only increased.

Fourth, assuming that your evidence is important, you need to find ways to both streamline and highlight those most critical to the case. When we conduct case strategy sessions, we call this “central fact selection.” Central fact selection is critical for three reasons: 1) it establishes immediate credibility by proving something to the jurors rather than asking them to take your word for it; 2) strategically-chosen central facts of the case tell jurors everything they needs to know about the case while tapping into psychologically-satisfying principles that drive the way they makes sense of it; and 3) central facts corroborate the controlling idea (that summary sentence that encapsulates your case focus and themes) and what a juror wants to believe about the case. This exercise makes the trial team do the cognitively complex task of wading through all the evidence and finding those facts that will mean the most to jurors. If you put that cognitive load on your jurors, they have no choice but to rely on their own opinions.

Once you’ve determined your central facts, reinforce them through every communication act within the trial: opening, testimony, and closing. There is no such thing as too much repetition (ok, there is, but I’ve never seen someone hit it). Jurors cannot fight for you in deliberations against the unfounded opinion of another juror if they are not properly armed and motivated to do so. Armed jurors can easily access key evidence and can re-articulate your best arguments. Motivated jurors don’t give up in the face of a juror suffering from the Dunning-Kruger effect; they fight back. They might still let a juror “give their opinion,” but they won’t be duped into believing that that opinion is the same as the facts that you have presented.

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