We tend to believe that we navigate our way through the world based on our own conscious choices, and this perception of free will is an important part of our identity and our world view. Experienced litigators know that this perception of choice also plays an important role in how jurors and other fact finders construct and evaluate the notion of "responsibility" in a trial context. But what if this perception of free will, based on conscious choice, is a cognitive illusion? It may be. A new study (Bear & Bloom, 2016), for example, shows that what we perceive as choice at a given time can be influenced by events occurring after that time. In other words, we might believe we're making our own personal choices, but that perception can be influenced by subsequent events that cannot possibly be known at the time the "choice" is made. Calling this an "illusion of choice," the researchers point toward some deeper issues regarding the ways we conceptualize the ideas of choice and free will.

That's a heady philosophical topic of course, bringing to mind Plato's allegory of the cave, or the Matrix movies, or the late Robin Williams quip: "Reality: What a Concept!" But there are more down-to-earth implications to this retrospective exaggeration of choice that should influence the ways litigators frame their messages and structure their stories in trial. If, for example, we tend to magnify our perceptions of choice and control as it applies in our own lives, it stands to reason that we would be more likely to project that exaggeration onto others, like parties in litigation. Indeed, that squares with what we see when we are observing jurors in mock trial exercises: The number one topic of discussion is pretty consistently the choices that each party had and what they might have done differently. In this post, I will look at the study on this illusion of choice and discuss the implications it has on the ways choice should be addressed by plaintiffs and defendants in trial.

The Research: Constructing Free Will (or How Free Will is Constructed For Us)

Adam Bear and Paul Bloom, psychologists from Yale University, published the study in the journal Psychological Science, and the study was also discussed on psychologist Jeremy Dean's Psyblog. In the study, research participants stared at five empty circles on a computer screen. One of those circles would randomly turn red, and participants were asked to predict which one it would be. People consistently reported that they were more accurate than they could possibly be. It appears that individuals would perceive that they had made a prediction only a fraction of a second after the red circle appeared. According to the authors, "These findings suggest that, like certain low-level perceptual experiences, the experience of choice is susceptible to 'postdictive' (meaning 'after the fact') influence, and that people may systematically overestimate the role that consciousness plays in their chosen behavior." While it is only one study, it contributes to a view that the brain generates this subjective experience of free will and conscious choice by largely rewriting history in our own minds. As Jeremy Dean puts it, "Free will may actually be an illusion created after our unconscious has decided to act."

Dealing With Choice as a Plaintiff

One thing you can count on is that the jurors are going to focus on, and potentially exaggerate, the choices your client made. Something called the "Belief in a Just World" means that we are all motivated to believe that bad things don't just happen for no reason, so we look for ways an apparent victim has brought it on himself. That means that the passive victim narrative just doesn't sell. Jurors will want to exaggerate the degree of choice that the plaintiff had, and will put themselves in the plaintiff's shoes and ask what they would have done differently in order to have avoided her fate. Many are thus primed to believe, idealistically, that their own wise choices would have protected them.

To counter that, a plaintiff's story ought to focus on an individual who exercised all the choices he could, at least all of those that were under his control. The main part of the plaintiff's narrative should then focus on the defendant's choices.

Dealing With Choice as a Defendant

When you're the defendant, you should allow the plaintiff's choices to take center stage. Obviously, each side wants the jury to interrogate the other side's choices, but here is where I think the defense has a bit of an edge: The jury is more likely to start by focusing on plaintiff's choices rather than defendant's choices because the plaintiff is more likely to be "like them." To typical jurors, the individual plaintiff is going to be closer to their world than a company or a professional on the other side. Rather than helping the plaintiff, however, that just serves to make it easier for jurors to scrutinize the plaintiff's choices and to think about what they would have done instead. Defendants can play to that tendency by using tools -- checklist of choices or decision trees -- in order to make these choices more salient.

Ultimately, though, defendants cannot escape a focus on your own choices. As with plaintiffs, one focus should be on showing that the defendants made good choices in order to control what they could control.

In addition to explaining the frameworks jurors will bring to an assessment of plaintiffs and defendants, a belief in choice and free will is also a useful concept in in jury selection. Those with a high view of personal "locus of control" are more likely to broaden the sphere of individual control and personal responsibility, and for that reason will generally be harder on plaintiffs and easier on defendants. So it is useful to remember that there is one avenue of choice that isn't an illusion: your strikes.