Dallas Bar Association

Encouraging “Slow Thinking” in the Jury Box

by Jonathan Leach

Cognitive psychologists often describe the mind as an uneasy alliance between two systems. System 1 operates automatically and quickly; System 2 requires attention and effort. Understanding these two systems can enhance our efforts to connect with jurors.

System 1, the engine of “fast thinking,” operates with little or no effort. We use System 1 when we interpret a facial expression as angry or sad, when we detect hostility in someone’s voice or when we navigate a familiar route to work.

Now think about filling out a tax form, or multiplying two-digit numbers. Those tasks demand heightened focus and trigger the slower-thinking System 2. System 2 requires us to spend mental resources, and we “pay attention” in a very literal way. The extra energy required by System 2 causes us to adjust physically, as our pupils dilate and more areas of the brain light up on a scan.

Most of the time, the two systems work well together. The problem is that System 1, though efficient, is easily misled. It is intuitive and fast but often wrong. Meanwhile, System 2 is lazy. System 2 is uniquely equipped for thinking requiring effort, but it prefers ease over strain. It usually adopts the conclusions reached by System 1.

Here are a couple of ways in which System 1 thinking shows up in the courtroom, together with some suggestions for how to mobilize System 2.

Hindsight bias. Thanks to System 1, an unpredictable outcome will seem knowable and inevitable after the fact. This is the “I-knew-it-all-along” effect.

Relying on System 1 thinking, a juror will conclude that any reputable financial advisor would have recognized, well before it happened, that the 2008 financial crisis was inevitable. When a bizarre event occurs during a low-risk surgical procedure and the patient dies, System 1 prompts jurors to conclude that the operation was actually risky, and that the doctor who ordered it should have known better.

There is good news: once sensitized to hindsight bias, most jurors become vigilant against it. This means that voir dire and opening are golden opportunities to sensitize jurors to hindsight bias. Caution jurors about the opponent’s strategy to turn them into Monday-morning quarterbacks. Help them distinguish the information they have now, in the courtroom, from that which the client had at the time of his or her questioned decision.

Consider using cultural markers from the relevant time period, such as popular songs or movies, or major political events. (“Most of these events happened in 1973–ten years before Carrie Underwood was born.”) References like these can help jurors “turn the clock back” to when the outcome was still unknowable.

Substituting an easier question for a harder one.If System 1 does not quickly find a satisfactory answer to a hard question, then System 1 finds a related question that is easier, and answers it instead.

Suppose that, just before deliberations, jurors have watched the deposition video of a defendant. In the jury room, some jurors comment that the defendant looked uncomfortable at times. Now they address the first question on the verdict form: “Did the defendant know that the company’s financial statements were false?” That is a hard question. It may require reviewing reams of accounting records and hundreds of e-mails.

So System 1 quickly substitutes an easier question: “Did statements the defendant made in his deposition appear to be false?” Jurors have just watched the video. This second question is much easier to answer than the actual verdict question. And voila: the verdict is “Yes.”

As with hindsight bias, forewarned is forearmed. The attorney may need to state the problem explicitly for the jury: “The question you are asked is whether [and carefully state the question]. Beware of substituting some other question you have not been asked.”

It’s also effective to guide jurors, visually, through the path they must follow in order to arrive at an answer. Simple icons such as checkboxes, stair steps, or decision trees can be used (“First consider A, then B,” and so on). Depicting the question as a series of interrelated and essential parts can make the “hard question” much less intimidating.

System 1 has been called “a machine for jumping to conclusions.” To minimize its effects, consider a two-pronged strategy. Warn jurors of the traps that lie ahead—such as hindsight bias or substituting the hard question with an easier one. Help them anticipate the temptations that they will face. Then–using cultural references, visual aids and simple language–point jurors away from those traps. Help jurors mobilize the more complex thinking of System 2.

 

Jonathan Leach is a shareholder in Trial Lab, LLC and can be reached at jleach@triallab.com.

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