In 1620, Francis Bacon wrote in Novum Organum, “The human understanding when it has once adopted an opinion…draws all things else to support and agree with it. And though there be an increasing number and weight of instances to be found on the other side, yet these it either neglects or despises, or else by some distinction sets aside and rejects…” Today, we call that "confirmation bias," and it applies as much now as it did in 1620. In fact, you could say that we are now in the "Affirmation Age," -- well beyond the information age, we're at the point where just about anyone can easily find information that supports their existing views. So having the world at our fingertips just means that we can affirm our existing opinions whenever we need to. As Joe Keohane wrote in "How Facts Backfire," "It’s never been easier for people to be wrong, and at the same time feel more certain that they’re right.”
This tendency to notice, seek out, and remember information that confirms our beliefs naturally applies to jurors deciding your case, but it also applies to lawyers. As a recent Above the Law column notes, decision making within a legal practice can also be determined by this all-too-human tendency. If you're not sure about your own inclinations toward confirmation bias, you can even take a test offered by the New York Times. New research from the University of Iowa (Cipriano & Gruca, 2014) shows that even in the face of new information showing their earlier beliefs were wrong, and even when that error costs the study participants real money in an investment, research participants will stubbornly cling to those initial beliefs. The experiment asked students to predict weekend box-office receipts for new movies and then buy and sell real money contracts based on those predictions. After making an estimate, participants tended to ignore new information on actual box-office receipts if that information was at odds with their earlier and less-informed predictions. Lawyers are in a parallel position of making early predictions, often with incomplete information: They handicap a case, assess a witness, or make an early judgment on a potential juror, and that estimate inevitably starts to form before all of the data is in. This post shares some thoughts on ways attorneys can work to check their own confirmation biases in these areas.
Attorneys are analytical by nature and training. And when billing by the hour, they also tend to be quick and results-oriented. That can feed a tendency to form conclusions rapidly. In addition, the attorney's role is often to buttress one's own case by actively looking for and highlighting the facts that support one's own position. You could say that being an advocate means relying on confirmation bias. That can be a benefit, and our system is based on the belief that the truth is likely to emerge when both sides are doing that. However, that habit of thinking can also be a liability at various stages of the preparation process. In this post, I'll talk about three.
Mock Trial Confirmation Bias
Ideally, one goes into a mock trial with the goal of testing the assumptions you've been making about your case in the long walk-up to trial. Is it as strong as you think it is? Are the weaknesses you fear really the ones you should fear? When it is designed well and prepared carefully, a mock trial can help answer those questions. But when it is implicitly loaded toward your side of the case, it can just end up confirming your expectations. That is not only a waste of time and money, but is also a dangerous way to create false confidence. Clients can end up loading the mock trial in a few ways:
- By informally recruiting friends and family who know who they're working for.
- By having the lead attorney argue their own client's position in the mock trial, and having a less-experienced and less-informed colleague argue the other side.
- By relying on "best-case" assumptions on what claims will stay in the case, what evidence will get in, and what instructions will be given.
- By using the best demonstrative exhibits, themes, and persuasive appeals for your own side.
Beyond the design features that foster confirmation bias, there is also the more subtle tendency to pay attention to and gravitate toward that which jibes with our expectations. If jurors see your case much differently than you do, you could be tempted to dismiss them as unrepresentative outliers, or to think that they just didn't fully understand the case. When listening to mock jurors, or to any other sounding board, litigators need to cultivate an open-minded attitude of curiosity and respect.
Witness Preparation Confirmation Bias
When you meet one of your own witnesses, you're likely to develop an early sense of whether they are a good or bad witness. Often that initial assessment is based on how well they come across when they're in the conversational setting of simply talking with you. That assessment is important, but it isn't always predictive of how they will be in the deposition chair or on the stand. Some might do worse during their actual testimony due to the formality and the pressure, and some might do better because it is a structured setting (it's the same reason some shy people are often good public speakers despite their introversion).
The trick is to avoid turning an early judgment into a self-fulfilling prophesy, especially if it influences your choice to prepare the witness or influences the way you prepare the witness. It is important to be open-minded and objective as you prepare, to focus on hands-on practice, and to evaluate witnesses based on how well they do in practice and not how well they do in conversation. During that practice, it helps you resist your own biases if you have a person on hand who knows less about the case and the witness than you.
Jury Selection Confirmation Bias
Jury selection is a classic case of making judgments under pressure. That judgment will be almost always based on imperfect information, but in the worst case scenarios, attorneys are making judgments that conform to the expectations they've formed based on demographic stereotypes or based on the idiosyncrasies of past experience.
The problem is most acute when the process does not allow effective oral voir dire based on attitudes, including attorney-conducted voir dire and questionnaires. But even when the process does involve effective tools of inquiry, attorneys need to take care to resist their initial assumptions. If attorneys walk into court believing that jurors' race, age group, gender or socioeconomic status are determinative of their views on a particular case, then what we know of confirmation bias would suggest that they'll seek out and use the information that confirms those stereotypes more than they'll notice and rely on the information that undercuts them. Confirmation bias is avoided when we have the opportunity to ask about individual factors, and when we listen with an open mind, and not with the goal of confirming what we believe to be true.
Another form of confirmation bias can occur in the way we respond to expressions of bias from potential jurors. We expect prospective jurors to follow instructions. The court and the jurors themselves join us in that expectation. So whenever we frame a question as a test of whether the prospective juror can follow instructions, we are asking for confirmation bias. That can be a necessary step in setting up a challenge for cause, but in selecting targets for your peremptory strikes, trust broad and open-ended attitudinal questions much more than you trust that self-diagnosis of "can you be fair."