Every law student learns about Batson v. Kentucky, the landmark 1986 U.S. Supreme Court case that held that a prosecutor cannot strike potential jurors based on race in a criminal trial. That principle was later extended to civil litigation, with the Supreme Court saying in Edmondson v. Leesville Concrete Company that racially discriminatory criteria may not be used to strike potential jurors by civil litigants either.
While Batson and Edmondson are based on the principle that racial discrimination has no place in litigation, the motivation of lawyers to strike jurors based on race and the need for the Supreme Court to state that such actions are unconstitutional are based on our understanding of juror bias.
Racial discrimination is only one form of bias. Everyone judges people based on differences, such as gender, race, or religion. This judgment is automatic, natural, and unconscious behavior. It is instinctive for people to prefer people who are similar to you in looks and share your interests. This preference leads to social categorization, where people routinely and rapidly sort other people into groups or in other words judge. These groups are not logical, modern, or even sometimes legal. Also, as a result of this automatic way of processing information we can make poor decisions due to having preconceived notions or biases.
Bias is an unavoidable fact of life. Many biases are unconscious and based on people’s perceptions that are shaped over their lifetime. Biases can occur when: there is too much information to adequately process, the information does not have enough meaning, there is not enough time to process the information so assumptions are made, or there is not enough space in our memories to store all of the information. (1)
Biases could be the result of Cultural Learning (norms, language, values, behaviors, practices), Historic Group Learning and Cultural Narrative (experiences, stories, history, thematic beliefs), Individual Learning and Narrative (individual experiences, trauma, & history), and Social and Institutional Learning (patterns of historic behavior in relevant institutions). These biases impact people’s decisions in situations they encounter in life.
People have biases that they bring to every situation they encounter in life. While “bias” is often used in everyday speech in a negative context, the word does not necessarily come with an ethical connotation in psychology and other scientific settings. However, a bias distorts our critical thinking, leading to possibly perpetuating misconceptions or misinformation that can be damaging to others. Biases lead us to avoid information that may be unwelcome or uncomfortable, rather than investigating the information that could lead us to a more accurate outcome. Also, biases can cause us to see patterns or connections between ideas that aren’t necessarily there.
In this context, “juror bias” means the effect of the life experiences a juror brings to a case they will be hearing, and how those biases will affect their understanding of the evidence and their opinion on a just verdict. Every person – which means every juror – has biases they bring with them to a courtroom. No juror, expert, attorney, or even judge is without bias –conscious or unconscious .
Understanding how experiences can affect biases that different people will bring to your client’s case can inform your choice of jurors, and allow you to make more strategically wise choices, within the bounds of the law as prescribed by Batson, Edmondson, and similar cases. Understanding the biases of the people who make it onto your jury can help you more effectively present your case and address and help counteract the wide range of biases that your jurors have brought with them to court.
12 Examples of Cognitive Bias
There are many common cognitive biases that people exhibit. Some examples of common biases are:
This type of bias refers to the tendency to seek out information that supports something you already believe, and is a particularly pernicious subset of cognitive bias—you remember the hits and forget the misses, which is a flaw in human reasoning. People will cue into things that matter to them, and dismiss the things that don’t, often leading to the “ostrich effect,” where a subject buries their head in the sand to avoid information that may disprove their original point.
An example of how this may affect a juror would be if a person’s relationships made them believe that plaintiffs are often wrongly seeking riches by suing others, whether with a defendant who is a physician, a well-known business or other entity that may benefit from media claiming that they are wrongfully subject to lawsuits. Confirmation bias in a juror who comes into the trial believing that would make that juror seek our information that confirms that belief and discard information that may contradict that belief by indicating that the plaintiff’s claims are legitimate.
The Dunning-Kruger effect
This particular bias refers to how people perceive a concept or event to be simplistic just because their knowledge about it may be simple or lacking—the less you know about something, the less complicated it may appear. However, this form of bias limits curiosity—people don’t feel the need to further explore a concept, because it seems simplistic to them. This bias can also lead people to think they are smarter than they are because they have reduced a complex idea to a simplistic understanding.
This bias could manifest itself in a complicated case, like securities litigation. A juror may believe that his understanding of the stock market is greater than it is and fail to absorb information critical to deciding the case appropriately.
Bandwagon effect/herd mentality
This type of bias refers to how people are more likely to support or believe someone within their social group than an outsider. This bias tends to remove objectivity from any sort of selection or hiring process, as we tend to favor those we know and want to help.
This bias could increase the influence of a charismatic, high-status juror during deliberations because he or she will be someone other jurors want to side with if there is a split on an issue.
A self-serving bias is an assumption that good things happen to us when we’ve done all the right things, but bad things happen to us because of circumstances outside our control or things other people purport. This bias results in a tendency to blame outside circumstances for bad situations rather than taking personal responsibility.
This bias could affect a juror’s perception of the fault of the plaintiff. It could make them think that the plaintiff was injured because he failed to do the right thing, or work for the plaintiff by making jurors more likely to believe that his injury is due to factors outside his control.
Also known as the availability heuristic, this bias refers to the tendency to use the information we can quickly recall when evaluating a topic or idea—even if this information is not the best representation of the topic or idea. Using this mental shortcut, we deem the information we can most easily recall as valid and ignore alternative solutions or opinions.
In a case with a lot of information and a long presentation, you can expect jurors to put more weight on the information they can most readily recall. If as the plaintiff you presented your case first, remember to use your rebuttal of the defense case to remind the jurors of your strongest, most important points so that the information stays fresh in their minds
Fundamental attribution error
his bias refers to the tendency to attribute someone’s particular behaviors to existing, unfounded stereotypes while attributing our similar behavior to external factors. For instance, when someone on your team is late to an important meeting, you may assume that they are lazy or lacking motivation without considering internal and external factors like an illness or traffic accident that led to tardiness. However, when you are running late because of a flat tire, you expect others to attribute the error to the external factor (flat tire) rather than your behavior.
This could affect jurors’ perceptions of your case if either party is from a group stereotype with certain behaviors that could work for or against your client.
Hindsight bias, also known as the knew-it-all-along effect, is when people perceive events to be more predictable after they happen. With this bias, people overestimate their ability to predict an outcome, even though the information they had at the time would not have led them to the correct outcome. This type of bias happens often in sports and world affairs. Hindsight bias can lead to overconfidence in one’s ability to predict future outcomes.
This may affect jurors by making them believe that the outcome that has led your client to bring suit was more predictable to your client than it actually was.
The anchoring bias, also known as focalism or the anchoring effect, pertains to those who rely too heavily on the first piece of information they receive—an “anchoring” fact— and base all subsequent judgments or opinions on this fact.
The existence of this bias means that the opening information presented in your case is the most critical because it can set the context for how the jurors perceive the rest of the information you present.
This bias refers to how we as humans are more likely to estimate a positive outcome if we are in a good mood.
This bias refers to how we as humans are more likely to estimate a negative outcome if we are in a bad mood.
These two biases, Optimism and Pessimis, indicate that a juror’s state of mind about their life situation can greatly affect their perception of the case, even when the case is totally unrelated to what may be affecting their mood about their life.
This bias refers to the tendency to allow our impression of a person, company, or business in one domain to influence our overall impression of the person or entity. For instance, a consumer who enjoys the performance of a microwave that they bought from a specific brand is more likely to buy other products from that brand because of their positive experience with the microwave.
This bias can affect the jurors’ perception of a party. If your client is seeking a recovery against a well-known, respected corporation, the halo effect bias can make it harder to convince the jury that the corporation is at fault.
Status quo bias
The status quo bias refers to the preference to keep things in their current state, while regarding any type of change as a loss. This bias results in the difficulty to process or accept change.
If your case is perceived by the jury as potentially setting a precedent that could result in greater societal change, status quo bias can make it more difficult to convince the jurors to rule in your client’s favor.
Benefits of Jury Research
Many enterprises seek to persuade people such as when marketing goods or services, promoting candidates for public offices, or trial lawyers seeking to sway jurors to support their clients’ positions. When persuading people, quality research helps, whether it is understanding your target market or understanding what questions or concerns may get in the way when jurors make their decisions. Sound research helps you make informed decisions and greatly improves your chances of reaching your goals.
Jury Analyst collects data to help you design your strategy for jury selection and to understand possible biases of your potential jurors. Effective jury research will tell you what sort of people are most open to accepting your argument on behalf of your client. It will also tell you what sort of people to avoid because they are more likely to be closed off to your client’s case. In addition, it will tell what sort of perspective will allow a potential juror to favor a substantial award. Thus, Jury Analyst will aid you in presenting your case to maximize your chances of reaching a successful outcome for your client.
Jury Analyst’s research can provide valuable data to help you understand what sort of people have biases that may work for or against your client. For example, if you have a complex case, people with certain levels of education may view the situation affected by the Dunning-Kruger effect or fundamental attribution error. Depending on the case and the outcome your client seeks, these biases could work for or against you as you seek to persuade the jury to find for your client and make a substantial award. Knowing ahead of time what sort of people are more likely to hold such biases will inform your jury selection, and once a jury is seated, help you frame your case with expected biases in mind.