When we engage in arguments, perhaps on social media or even around the table at Christmas dinner, it is easy to notice that there is something different about those at the extremes. Extremists are so filled with confidence about all of their beliefs, while those in the middle are likely to be more unsure or vacillating. That is a tendency observed in the social science laboratory as well; those who hold views at the extremes are much more sure about their beliefs. But researchers wondered whether that confidence was just a general trait or whether there is something about having extreme views that changes one’s “meta-cognition,” or how one thinks about one’s own thinking.

A recent research points to the latter (Rollwage, Dolan & Fleming, 2018). In a study covered in a Popular Science article, researchers at the University College London measured subjects’ “radicalism,” or quality of being at the extremes of opinion, then gave them a task that had an objective answer, not a matter of opinion. For example, they needed to decide which of two images contained more dots. Researchers wanted to see who would change their confidence levels in response to feedback on wrong answers. What they found is that the radicals were significantly less likely to change. As Popular Science notes, “regardless of whether or not there was an objective answer, the radicals were more likely to trust their opinion was correct than to question whether they might have gotten it wrong.” This supported the researchers’ suspicion that among the radicals, there was an atrophy in meta-cognition and the ability to evaluate whether they are right or wrong and to change course. This suggests that those at the extremes do not have the experience of questioning their own views in the same way that uncertain or moderate individuals would. This matters in litigation because we might be dealing with individuals who are supremely confident in their own opinions, and those people might be on both sides of the jury box. In this post, I’ll share some thoughts on extremist bias as it might apply to both jurors and advocates.

The Extremist Juror

My experience is that litigators are already wary of potential jurors who seem to be at the extremes in terms of their political views. This research, however, provides some foundation for that suspicion. To the extent that extremists are less flexible in their thinking, and less likely to reconsider a belief they have already adopted, they are less likely to deliberate — either internally or with the group — and less likely to reconsider their views as the evidence comes in. In short, they will be less persuasible. You might think that your case has nothing to do with their political beliefs, but if, as the researchers suggest, this is not just a commitment to particular views but a mental habit, then it is likely to apply to all of their opinions, and not just the partisan views that they walked in with. So, unless you are very certain that these established views are going to benefit you in your case, it is worth being cautious with jurors who seem to hold radical views.

The Extremist Advocate

Advocates can have their own forms of radical bias, not necessarily relating to politics but to the partisanship of the courtroom. Plaintiffs’ counsel can be sure that their clients are sympathetic, and their adversaries are greedy, and defense counsel can be just as certain of the opposite. In part, the habit of maintaining a committed belief in the best parts of your case and the worst parts of their case is what goes into being a zealous advocate. But it is one thing to sell your case, and another to assess it. The habit of not altering your views in response to new information is a habit that advocates need to actively guard against. For example, the counsel who becomes more and more sure he is right as the judge continues to rule against him may be falling victim to this kind of bias. To guard against this, good lawyers need to make every use of sounding boards by asking what your uninvolved colleagues think of your case. When you can, it also helps to conduct pretrial research — mock trials and focus groups — to get another perspective that is likely to check that partisan bias.