It’s an implicit mistake that lawyers can sometimes make. They’ll tacitly believe and behave as though, “Reasonable people think like I do.” The trouble is, that isn’t true. Other lawyers think like you do, but lawyers have been selected and trained to favor high-analytical ability. We simply can’t project that on society. When your case requires a savvy jury that is willing and able to analyze an issue closely, you need to resist the habit of thinking that most will view it as closely as you have. Analytical ability is something to be assessed rather than presumed in your panel.
These days, it is hard to escape the feeling that analytical thinking is in short supply, as large parts of our society hold many implausible beliefs based in pseudoscience, fake news, or magical thinking: The coronavirus is a hoax, there is proof of widespread election fraud, and evidence can’t be trusted when it comes to science or medicine. The increasingly mainstream appearance of these beliefs raises the question of why they persist. One theory is that people take shortcuts and aren’t careful enough. If that’s the case, then encouraging them to slow down and be deliberative should help. But another theory is that, for many to most of those who cling to implausible beliefs, it isn’t a lack of effort, it’s a lack of ability. A recent study (Martire et al., 2020) comes down on the latter side, supporting the intuition that it is ability rather than cognitive style that leads to implausible beliefs. The researchers conclude, “Our study suggests that it is not laziness that separates those who believe implausible claims from those who do not. Instead, limited analytical skills may play a role in the development and maintenance of a range of implausible beliefs.” In this post, I’ll take a look at the study and share some implications for jury selection.
Past research has shown that people can be highly susceptible to implausible beliefs, and that susceptibility can be measured (my favorite scale is actually called the “Receptivity to Bullshit” Scale). The controversy has been over how people develop and preserve that receptivity: Is it an uncritical or “lazy” style of reasoning, suggesting that you cure it by encouraging people to slow down and take a second look; or is it a lack of ability, suggesting that it comes down to selecting the right people.
The recent study, with the title “Limited not Lazy,” comes down on the side of ability rather than effort. Over the course of seven studies involving 746 jury-eligible online research participants, the team exposed participants to strong and weak evidence, while also measuring the tendency to endorse implausible beliefs like vaccine conspiracy theories, global warming hoax beliefs, and even the opinion that the earth is flat. The idea was that, if laziness explained it, then those who are prone to endorse implausible beliefs would be equally persuaded by high or low quality evidence. That is not what they found. The study showed that those who endorsed implausible views were actually sensitive to evidence quality and persuaded by better evidence. “Thus,” they concluded, “implausible beliefs may result from limited evaluative skills, rather than a ‘lazy’ thinking style.”
If it is the case that adherence to highly-questionable beliefs are more a matter of lack of ability rather than lack of effort, then the implication for the attorney trying to persuade a jury is this: You can’t take it for granted that they’ll all be good analysts, and you can’t necessarily fix bad analysis by encouraging them to work harder. If there’s a potential for a deep-seated bias or a hardened belief that isn’t in your favor, then you are probably better off addressing that through selection rather than through persuasion.
So here are the top three questions for assessing a potential juror’s analytic ability. None are fool-proof, and there will be exceptions. But all should help you understand the overall picture of a potential juror’s analytic ability:
Occupation: What Do You Do for a Living?
What a person does every day, five days a week, is powerful in shaping their cognitive habits. So learn something about that occupation. In addition to asking for job title and employer, ask what they do on a daily basis. If it involves decision-making and the exercise of judgment over a relatively broad sphere, then chances are good that they are used to analyzing information. If, on the other hand, the job involves following instructions or making decisions within a very limited sphere, then chances are good that they are less used to analyzing information.
Education: What Is Your Highest Level of School Completed?
To be sure, there are low-education smart people, and some very high-education dumb people. But as a rule of thumb, education — particularly higher education rather than skills training — builds analytical thinking. But in addition to asking the level of education, try to also understand the subject area. As with occupation, the question is the extent to which judgment plays into it. If your panelist studied in an area that required broad and discriminate thinking, then chances are better that they will be sophisticated reasoners.
Perhaps the best question for assessing analytic ability is also the simplest: Ask an open-ended follow-up question like, “Why do you feel that way?” Whether it is oral voir dire in open court or on a questionnaire, the answer will show you how the potential juror reasons. Non-analytical answers like, “I don’t know” or “That’s just the way I feel,” will tell you that analysis isn’t their strong suit. But an answer that gives clear reasons (e.g., “There are a couple of reasons I feel that way, they are…“) tells you that the potential juror is also able to apply reasoning to your case as well.
In addition to ability, there is likely one other factor to look at: disposition. Even people who are able to engage in complex thinking may not want to, perhaps to protect their existing beliefs or to avoid discomfort. Whether a potential juror welcomes or avoids cognitive difficulty, the measurable trait of “need for cognition” is also worth looking into. But the important point is that, when your case depends on a jury being analytical, you can’t presume that they’re engaged at that level. Instead, you’ll need to check.