Sway! {THE NEW ART OF PERSUADING PREDICTABLY IRRATIONAL JURORS}

persuade (per•swad’), v. 1. To move a person to do something; urging. 2. To induce to believe; convince. 3. Using communication power to produce effects on others by intangible or unseen means. See, MAGIC.

THE MOST CHALLENGING AND PERVASIVE TASK OF THE CRIMINAL DEFENSE ATTORNEY is to change the minds of other people. We hardly ever start out with a box of jurors, in fact, who are already predisposed to believe what we need them to believe in order to vote not guilty.

It turns out that presenting actual facts to a jury, or even challenging various facts presented by the prosecution, are not enough to actually persuade. Who knew? There are three realities of any juror’s mind that block persuasion when they are not taken into account. First, jurors (like all of us) start out with mental anchor points—beliefs, experiences, attitudes, or opinions that have a strong hold on them. Second, jurors (and the rest of us) also have blind spots—places in our brain that don’t allow us to see what is plainly there. Finally, jurors (and all people) have gut feelings that they value and regularly rely upon, notwithstanding contrary evidence in the world around them. In short, jurors (like all of us) are predictably irrational.

THE NEW ART OF PERSUADING JURORS TAKES THESE HUMAN REALITIES INTO ACCOUNT. There a lot of things trial attorneys can do differently, as a result, including folding new themes into our cases, new questions in our questionnaires, new voir dire in our conversations with potential jurors, and new areas of cross-examination for jurors to hear:

Trial arguments and strategies (about what might have really happened, when those things might have occurred, or who might have done them) can then be re-framed, with the understanding that our task is to persuade jurors, using their ANCHOR POINTS, pre-existing BLIND SPOTS, and GUT FEELINGS.

ANCHOR POINTS

We don’t see things as they are. We see things as we are. ~Anais Nin

Our anchor points are often buried so deeply in our minds that we are never fully aware of them. Just like a ship’s anchor, however, our mental anchors allow us to wander only a short distance from that anchor. Our mental anchor reduces our mental wandering range. If a juror believes there is always a way to leave a violent situation, that an innocent person would certainly choose to testify, that police are usually honest, that a child would never lie about certain things, then we need a defense that doesn’t require such a juror to stray too far from the mental anchor the juror already holds.

This means that when our cases are going to trigger pre-existing anchor points for most people on some trial issue or event, we can pick a better jury if we know what those anchor points are in advance. Jurors have pre-existing anchor points about any issue you can think of, including:

race, gender, violence, authority, responsibility, second chances, appearances, science, psychology, lying, children, sex, morality, sin, foreigners, gangs, prior crimes, drugs, alcohol, compassion, causation, memory, eye witnesses, religion, trustworthiness, duty, honor, friendship (to remind you of only a few).

QUESTIONNAIRES can put key issues on the table and reveal where a juror may already stand. For example, depending upon your case’s issues, you might include items such as:

• Some people believe a child would not lie about being sexually touched, while other people believe that there are many things that might cause a child to say they were touched sexually when it did not happen. What do you believe?

• What are your beliefs about whether an eyewitness might be wrong in identifying someone in court, even if they feel certain?

• Some people believe a person who joins a gang is more likely to commit a crime. What do you think?

• What do you believe about when using violence in self-defense might be justified? [Or, alternatively, never justified.]

VOIR DIRE, on the other hand, should put key themes on the conversational table and allow us to discover anchor points while potential jurors are in the social presence of others (as they will be, during deliberations). What opinions are sticky, which are wobbly? For example:

• Some people feel a police officer would never lie under oath. Other people think lying happens a lot for many complex reasons. What do you think? [Followed by group work with, “Who feels the same?” “Who has a different take on that?” “How strongly do you feel about that?”]

• Some folks think that if an expert is allowed to testify, then the jurors should accept that testimony as true. Others have experiences where experts get it wrong, often. Where do you stand? [Can you give an example?]

• Some people feel that if a witness takes an oath to tell the truth, it increases the chance that that person will actually tell the truth. Others feel differently. What do you believe about whether taking an oath gives us any assurance about whether it is true?

Remember, our goal is not to push a potential juror towards an answer we prefer in this conversation. Resist the temptation to persuade potential jurors to say something different from their actual anchor point. Instead, uncover what a person’s pre-existing anchor point actually is, how far it reaches, how strong its grip is. Then, we are more effectively able to excuse jurors whose pre-existing anchor points on one or more key events/issues in our case is too far from where we will be asking them to travel in this particular trial.

BLIND SPOTS

If we don't understand blind spots, we don't understand human nature. ~Eric Maisel, Ph.D. (author of Ten Zen Seconds)

One of our favorite exercises may be jumping to conclusions. Unfortunately, we mess up a lot when we're engaged in it. Jurors will engage in it throughout the trial, starting from the moment they walk into the courtroom.

As functional as our brains are most of the time, when they backfire or blunder, we nurture wrongheaded viewpoints, stupid mistakes, and socially-shoddy thinking. Blind Spots: Why Smart People Do Dumb Things (by psychologist Madeline Van Hecke) takes us on an overdue romp through the maze of our brain's unavoidable blind spots.

The idea that anything should be "obvious," Dr. Van Hecke points out, is at the heart of our judgment when we think other people are acting (or thinking) stupidly. We adore, in fact, telling tales of the dumb behaviors of other people.

Mental blind spots are hardwired into the way our brains function, just as blind spots are part of a car's side mirrors. After the fact, we might feel stupid when we realize there was something we should have known or thought about. It seems quite obvious, in retrospect. How could we have missed it? Our blind spots are frustrating evidence that we don't know what we don't know. It was, after all, in our Blind Spot.

Even though we are often wrong, it seems we are rarely in doubt at the times we are being wrong. We miss opportunities to think, happily rushing to conclusions with the best of fools. Our brain is a cognitive miser, so it likes to assume that things are the way they appear and the way they have always been. Spend some time with this book—it'll shrink your own blind spots.

We all see blind spots most clearly, of course, when the blind spot in question is someone else's. This is good news when you want a juror to realize that an opposing witness has a blind spot.

HELP JURORS DISCOVER THE BLIND SPOTS IN PROSECUTION WITNESSES. Discuss blind spots (car mirrors, driving) during voir dire. Ask the group whether they have experiences where they’ve seen that people have blind spots, too. Even though the person denies it.

Find out what a juror’s blind spots (on a key case issue) might be on questionnaires. Exposing a person’s personal weaknesses (as opposed to their opinions or experiences) in the social setting of open court is rarely a winning tactic. But you knew that.

Blind spot questions ask potential jurors about what they do not believe in, can hold with, or wouldn’t allow for.

QUESTIONNAIRE:

• Under what circumstances do you think an eyewitness who is certain could actually be wrong?

• How much confidence would you put in a witness who has committed crimes before? Would it matter to you at all that they have committed felonies? Why?

• Is there a reason that you would accept that a person confesses to a crime they know they did not do?

• How much faith do you have in science? Experts? The witness oath?

THE PULL OF GUT FEELINGS

No, no, you're not thinking. You're just being logical. ~Niels Bohr

The heart has its reasons of which reason knows nothing. ~Blaise Pascal

It turns out that we all get our happily-ever-afters in diverse and irrational ways. (You might find this comforting.) Throughout our lives, we are faced with myriad choices, involving both welcome and unwanted decision-making. (Jury duty always involves unwanted decision-making on the part of the jurors.) Research on deciding finds that the trick to good decisions may not be to amass information—but to learn to discard it.

Criminal defense attorneys really (really) want jurors to discard some of the information from trial in their deliberative decision making as unreliable. We might forget, however, to find out which people would enjoy discarding information, have experience with it, and would encourage others to do it. (Closing argument is always too late to begin telling jurors what to discard.)

Our gut instincts are more often right than we realize. In the right case, you want jurors to realize this. However, not all cases benefit from a juror’s gut feelings.

Dr. Gerd Gigerenzer is a professor of psychology and Director of the Center for Adaptive Behavior and Cognition at the Max Planck Institute for Human Development. In his ground-breaking book, Gut Feelings: The Intelligence of the Unconscious, he points out how much of our mental lives is grounded in processes that are alien to logic—that is, gut feelings and intuitions. We have gut feelings about sports, friends, which foods to buy, which job to take, how to invest our money, which short-cut is shortest, who to marry (and other dangerous things). How do we know?

Gigerenzer invites us on a journey into a largely neglected Land of Irrationality—populated by folks (just like us, just like our jurors) who are partially ignorant, whose time is limited, and whose future uncomfortably uncertain. The limitations of rational thinking can force our brains to rely on unconscious gut feelings. No matter how carefully we list the pros and cons for a choice in columns on a piece of paper, when we look at the list, sometimes an inner voice tells us that the rational results don't feel right. Our hearts, often, have already decided. Jurors may have already decided in their gut before the first witness is called.

When people have choices to make, some beneficial degree of ignorance is often helpful. When we aren’t given enough facts, we rely on intuition rather than good reasons. The recognition heuristic, for example, describes how we infer qualities based on name recognition. (Marketers rely on this instinct in promoting brands.) The truth is that the instinct to go with what we know has survival value in the natural world. By relying on the familiar, early humans were more likely to live to see another day.

Acting on instinct, however, does not mean people are blindly choosing. Consider a successful athlete who repeatedly catches, throws, or hits a ball without understanding how; nonetheless, the athlete's mind rapidly performs the equivalent of a complex differential mathematical calculation—computing the complex trajectory of a ball.

When we successfully perform complex feats without understanding exactly how, we get a glimpse of the value of gut instincts. We have evolved mental methods that operate below our level of consciousness, yet lead us to superior choices. Without gut instincts, our brains would painfully short-circuit, lost in a sea of data.

Information about how gut instincts work is a wonderful source of conversation for potential jurors during voir dire. They love the sports analogies. They get that quick decisions can be right. In the right case (which is your gut decision, as the lawyer), confidentally relying on gut feelings allows a juror to discard a lot of facts. Perhaps we should celebrate the irresistible pull of irrational behavior in our lives? Ori and Rom Brafman find rational explanations for a wide variety of our favorite irrational behaviors—then bemusedly suggest just when we might want to avoid succumbing to some of them in their book, Sway: The Irresistible Pull of Irrational Behavior.

Why do people find it so hard to sell a stock that is plummeting on the market or end a clearly doomed romance? Drawing on new research from behavioral economics, social psychology, and organizational behavior, Sway reveals the variety of forces that feed our tendency to go to great lengths to avoid perceived losses (consequently losing still more).

It's comforting to get more familiar with the irrational lures that inhabit our daily lives, since these same irrational lures inhabit the lives of our jurors, or, on the other hand, may help explain the behaviors/opinions of an opposing witness. Consider:

• CHALLENGE A PROSECUTION WITNESSES TESTIMONY. You may want jurors to challenge a witness’ testimony, based on the fact that the witness was going on gut instincts that ignored relevant facts.

• SET THIS UP IN VOIR DIRE. The well-known disaster of gut instincts has been (as explained in their book) pervasive in our financial investments. People lost life-savings, trusting their gut instincts about investments or investment brokers.

Dan Ariely has been on a roll with the study of irrationality in recent years. A cognitive psychologist, Ariely is the James B. Duke Professor of Psychology and Behavioral Economics at Duke University and the author of Predictably Irrational: The Hidden Forces that Shape Our Decisions and The Upside of Irrationality . People are consistently poor predictors of their own futures. We are grounded in our present and expect the future to be influenced by the same factors that influence our life’s NOW, so our brains regularly neglect to sufficiently imagine the changes in moods, people, events, finances, and passions that will populate our futures.

Ariely is consistently creative and entertaining in sharing his experiments that show how and why people behave irrationally. We not only are faced with making decisions throughout our lives, but (horribly) we have to deal with the decisions other people make. Ariely's writing is funny, fascinating, and seductive—inviting us to a life with some happier decisional outcomes: the unexpected ways we defy logic at work, the IKEA Effect (why we overvalue what we make), why my ideas are better than yours, why we get used to things (but not all things, not always), adaptation and the beauty market, why we respond to one person who needs help but not to many, and the long-term effects of short-term emotions.

That all people are poor predictors of their own futures can explain a lot of poor choices our clients made in situations, which at the time seemed right. Re-frame case themes that acknowledge how normal it might be to guess wrong about future consequences. That’s why people don’t leave violent situations: who knew he’d attack? Ariely’s books are full of rich examples of everyday decision-making for voir dire that can help you discuss normal irrationality during voir dire and make better choices about which irrational jurors you want on which cases.

Gut feelings and the struggle with decisions are an extraordinary and inescapable part of our lives, yet a lot of us have been content to remain blissfully ignorant of how gut feelings work. At the same time, we often dwell in the Land of Regret, wailing: "If only!" Our quirky gut feelings play a key role in making our lives rich, satisfying, and meaningful:

People respect their own gut feelings, but are judgmental about those of others. Keep this in mind. Does your case involve the gut feelings of prosecution witnesses that you want to attack? Or does it involve the gut feelings (and unfortunate consequences) of your client?

THE HEART OF PANIC AND POISE

A wave of panic passed over the vessel and these rough and hardy men, who feared no mortal foe, shook with terror at the shadows of their own minds. ~Arthur Conan Doyle

EVERY CRIMINAL DEFENSE CASE INVOLVES A PRIOR ACT OF PANIC. (Your client’s or someone else’s.) Helping jurors understand this can be critical. It follows, then, that we need to understand more about what jurors believe about nerve, panic, poise, and even heroes.

Life is full of close calls and undertakings under pressure, for which we'd all like to demonstrate appropriate nerve. Possibly poise. A clutch performance. Too often, what we end up displaying, however, is unruly panic. {Insert comparison approximately here to your client’s unfortunately behavioral choices.}

Where is our unflappable cool in the midst of stress, crisis, or spotlight calls to action? What switch can we pull in our brains to trigger calm speedy thinking under pressure? We may not be on a battlefield, in an earthquake, hanging by ropes from a sheer cliff, or on staff in a hospital emergency room, but we regularly face golden job interviews, first dates, and public performances. We walk down dark alleys filled with slow-moving shadows, we face critical licensing examinations, and we are confronted by sudden overwhelming deadlines. The creeping everyday anxiety of modern life may have put us out-of-touch with our innate ability to cope with fear. This is the heart of panic and poise.

In Nerve: Poise Under Pressure, Serenity Under Stress, and the Brave New Science of Fear and Cool, Taylor Clark explores the cutting-edge science of who cracks under pressure and who thrives. That super-hero within us is apparently willing to emerge—if we can get a solid grip on how our brains experience worry, fear, and anxiety. Clark's writing evidences both storyteller and a science consumer, so as we read this book, we don't mind giving some thought to the specific research behind this New Science of Fear. Who doesn't want to raise their coolness factor?

This book may change your own understanding and up your compassion factor for the bizarre and consistently stupid-seeming acts of some of the people you represent. Then it will give you great ideas about how to both normalize this and trigger compassion in jurors. How about that split second, when fear bursts into being in our bodies? What's that about? Clark describes a surprisingly rich and complex sliver of time that neuroscientists are now demystifying. How do the complex superstitions of athletes help them control performance anxieties? Our second brain, the clutch paradox, why athletes excel or choke under fire, the zen of shock trauma, how people react, think, and survive when someone's life is on the line—this is stuff you want to get a grasp on, before your next crisis hits. It's what we all need to get a grip on for developing more compassion for the people in our social lives: our coworkers, friends, family, and neighbors, all of whom are regularly facing close calls and unwanted pressures.

QUESTIONNAIRES:

• Explore actual experiences of potential jurors, which are more predictive of how they will react than general opinions:

  • Have you ever had to make a split second decision with not enough information?
  • Describe a job you’ve had in which working under constant pressure was normal.
  • Have you ever seen a normal person crack under pressure?

VOIR DIRE:

When you know from questionnaires that some potential jurors have had high pressure jobs demanding clutch decisions, this is a good basis for introducing a conversation in which someone other than you explains how that works to the other jurors.

  • Who has had experience making clutch decisions under pressure on a job?
  • What are the challenges of that? Who has had to supervise or train people to make quick decisions under pressure?
  • What is needed to get good at that?
  • The first time you face a clutch decision and no time to make it, do more errors get made than when it happens a lot?

Epilogue

THE MOST CHALLENGING AND PERVASIVE TASK OF THE CRIMINAL DEFENSE ATTORNEY will always be to change the minds of other people. Criminal defense attorneys are never facing a jury of people who already doubt what we doubt, embrace the values we embrace, and think about evidence the way we do. In order to change minds, we have to know more about where the minds of those folks already are. We need to know more about irrational people, who come accompanied by firm mental anchor points, blind spots, and gut feelings about specific issues that matter in our trials.