Confirmation Bias and the Courtroom
How to Mitigate the Impact of Attorney and Juror Biases on Litigation
By Eric Rudich , Shari Belitz
Confirmation bias is the tendency for people to search for, interpret, favor, and recall information that confirms their preexisting beliefs. Conversely, confirmation bias drives the same people to dismiss or ignore information that supports a different viewpoint.
Confirmation bias is a heuristic or mental shortcut that developed as a way for people to make sense of and provide order in a complex world. Rather than exerting the cognitive effort needed for considering new or different information, people more easily construct their world using information that fits into their existing viewpoints. Confirmation bias can be found in many facets of everyday behavior and can exert great influence in how people process information and make decisions in politics, finance, medicine, personal relationships, and our legal system.
For our purposes, we will examine ways confirmation bias can impact litigation and the trial process, specifically with regard to how attorneys present evidence and how jurors perceive and process this information. We will also explore how the confirmation bias of attorneys potentially impacts the resolution of their cases.
Confirmation Bias of Attorneys and Jurors
Attorneys spend a great deal of time reviewing evidence and the law in order to present their cases in the most favorable light. Attorneys are continually advocating for their clients during discovery, while writing briefs, arguing motions, participating in settlement negotiations, and throughout trial. As an attorney works on a case, there is truth to the adage that there is a tendency to “fall in love with one’s case.”
Confirmation bias initially occurs when facts uncovered in discovery are interpreted in a way most favorable to the attorney’s client. Favorable facts are given disproportionate importance, while unfavorable ones are disregarded or given less significance and weight. The disregarded facts, however, may be persuasive to a judge, mediator, or jury. An attorney also may give less weight to a seemingly irrelevant fact or an emotional argument, not objectively understanding how a jury may view this element of the case.
Ultimately, an attorney may disregard or dismiss important facts that do not confirm or easily fit with his theory of the case. He may become enamored with facts supporting his theory that an opportunity for productive settlement discussions will be lost, or arrive at an unrealistic valuation of the case that prevents resolution.
If a case reaches trial, jurors represent another potential source of confirmation bias. Jurors bring with them various biases, preexisting views, and life experiences about the legal system, parties, and overarching case issues before ever stepping into a courtroom. For example, in civil cases, jurors’ attitudes about issues such as corporate conduct, personal responsibility, and damages can affect their interpretation of the evidence. Confirmation bias will affect how each juror evaluates, interprets, and remembers evidence, and will ultimately play a role in how a case is decided. Research has shown that even if jurors believe they will be fair and impartial, they will still make decisions based upon unconscious biases.
Mitigating Confirmation Bias
Despite the prevalence of confirmation bias, there are ways to help mitigate it during the litigation process. Regarding attorney confirmation bias, it is crucial to engage in “perspective shifting.” Attorneys should list the most positive and persuasive points of their adversary’s case, and note the most negative points of their own. Attorneys may evaluate and even argue their adversary’s case in order to see the case more objectively. Trial attorneys should also present their cases to support staff, associates, or their partners.
However, the backgrounds, life experiences, and attitudes of the attorneys and their staff are likely very different from the jurors’ experiences, and the jurors are the ones who will ultimately be evaluating and deciding the cases. Moreover, there is a tendency for colleagues to give supportive feedback that may not reflect the reactions of actual jurors. As a result, a mock trial or focus group exercise provides much more reliable feedback for testing cases.
The jury research results provide feedback on the effectiveness of case themes and storylines, gives insights into how to counter the evidence and arguments likely to be presented by the other side, and can lead to recommendations for enhancing witness credibility and the visual presentation of evidence. The key component of any jury research exercise is to make sure that the adversary’s position is fairly presented in a comprehensive and hard-hitting way.
At trial, mitigating juror bias should begin with using a juror questionnaire in advance of voir dire. Research has indicated that jurors are more likely to give candid responses and indicate bias in written questionnaires as compared with in-person questioning. Once the voir dire process begins, if your jurisdiction allows it, attorneys should request to conduct their own voir dire rather than judge-conducted voir dire. Studies have shown that a skilled trial attorney is better able to elicit juror bias than a judge.
Another technique that attorneys can use during voir dire to ascertain bias is to use examples that “normalize” and destigmatize bias to show how it occurs in everyday life. Attorneys may use a personal example such as this: “I am a huge Red Sox fan. If there is a case involving the Red Sox, I would probably be the wrong juror for the case, as I do not think the Red Sox could do any wrong. I would be an excellent juror for many other cases, but not one about the Red Sox.”
Another method to ascertain juror bias is to frame questions to avoid telegraphing a correct or incorrect response, and to give permission to be honest and express bias. For example, compare the following two voir dire questions:
1. How many of you would feel some bias against a plaintiff who is not a U.S. citizen?
2. If you had to choose, which of the following two views would you lean toward: U.S. courts should primarily be for U.S. citizens, or U.S. courts should be open to all?
People are often reluctant to admit the flagrant bias that the first question attempts to elicit. However, the second question makes it easier for jurors to indicate that the parties would not start out equally at trial.
During the trial process, confirmation bias can also be mitigated by eliminating ambiguities in your case. Ambiguities allow jurors to interpret existing information in ways that fit with their pre-existing beliefs. In other words, if you do not provide a clear story for jurors, they will create one themselves based on their preexisting ideas. Simplifying ambiguous or complex issues and putting forth compelling themes will assist the jurors in understanding the case issues instead of substituting information to fit their preconceived notions.
“To err is human,” and bias is a fundamental way people err. Confirmation bias impacts how attorneys and litigants evaluate their cases, and how jurors process information presented to them at trial. As we suggest, awareness of how confirmation bias may impact litigation and using strategies to mitigate it will help attorneys achieve better outcomes in their cases.