United States: THE BLACK BOX: Non-Deliberative Decision Making

What if you woke up one morning to find that something had placed a black box inside your head and every time you needed to make a decision a gentle, persuasive voice suggesting what you should do emanated from the box. At first, you resist the suggestions opting to rely on effortful, detailed logical analysis taking into account all necessary information. After all, you don't know what is in the box, who placed it in your head or what their motives were. But, as the morning progresses, you are faced with situations in which you have to make decisions quickly with insufficient time or information for a thorough logical analysis. You decide to listen to the voice; you convince yourself that it's better than just guessing and things seem to work out. By the afternoon, you're listening to the voice more and more often and everything is fine. That evening as you decide to watch a lurid reality cable show rather than a documentary on Oliver Wendell Holmes, you tell yourself that it really is scathing social commentary. You didn't even hear the voice from the box telling you that it didn't like documentaries.

This is not the plot of an upcoming sci-fi blockbuster in which snail people from another planet take over our brains. Every person, every judge, witness and juror already has their own black box, a hidden set of hard-wired decision making rules known as heuristics. These rules help us make decisions when we have insufficient time or information to perform a complete logical analysis. They make "good enough" or "fast and dirty" decisions on available information. Unfortunately, they operate all the time and cannot be disabled even when we have the desire, time and information to conduct a full logical analysis. And, like the selection of the reality show, it is very easy for us to create a post hoc logical rationalization for a decision that actually arose from a heuristic.

Though no MRI, CT or PET scan can peer inside the box to see its contents, cognitive scientists developed ingenious experiments to identify the nature and operation of many different heuristics. These experiments are based on the realization that not all errors in judgment arise from logical lapses and that heuristics can be identified by the systematic errors they create known as biases. For example, questions similar to the following were posed to test subjects:

Although the test subjects were students in economics and statistics, more than 20% incorrectly selected the second option even though they certainly should have known that logically a scenario with two variables can never be more likely than a scenario with only one variable. Although heuristics often overlap, this error may be the result of the Simulation Heuristic, in which the determination of the likelihood of an event is dependent on how easily it can be pictured in the mind. Although adding the detail that John killed his wife because she was having an affair, makes the statement statistically less likely, the addition of a cause makes it easier for us to imagine.

Discussing all identified heuristics would occupy several volumes. This article will focus on the three basic heuristics and how they could affect the decision making processes of jurors.

The Availability Heuristic

Several heuristics are based on the amount of effort required to recall information or to imagine a particular scenario. The biases or errors these create result in an overestimation of the likelihood of a scenario if it is easily recalled or pictured and an underestimation of its likelihood if more mental effort is required.

The first heuristic identified was the Availability Heuristic which causes the overestimation of information that is more easily retrieved from memory and, therefore, more "available" to the conscious mind. Availability is affected by a number of factors including how recently the memory was formed or refreshed, how dramatic or emotional it is, whether the information was unusual or surprising and whether the information describes a causal relationship.

The Simulation Heuristic discussed above is a particular type of Availability Heuristic that may explain the persuasive power of a good narrative. During almost any trial, a jury is bombarded with far more information and perceptions than they could possibly retain in memory, recall and use to render a verdict. The right narrative strings the important elements of a case together using memorable details and a thread of causation making the narrative and the incorporated elements easier to recall. Because these elements are now more "available," the jury is more likely to believe that they existed or occurred even though each added detail and causal step must necessarily make the narrative less likely.

An understanding of this basis of the persuasive power of your opponent's narrative, suggests some methods for overcoming it. First, a narrative can be overcome by a better narrative. Two narratives will compete for the jurors' attention and one that better incorporates essential facts and arguments with elements of drama, surprise and believable causality will be more available to and trusted by jurors. Second, the Availability Heuristic is one of the few that is amenable to correction through pointing out the logical inconsistencies it creates. Calling jurors' attention to the fact that every detail and causal link in your opponent's narrative necessarily decreases its likelihood should make your simpler more direct narrative more trustworthy.

The Representativeness Heuristic

The Representativeness or Similarity Heuristic arises from our innate reliance on pattern matching and stereotypes. It has two main effects in litigation. First, the more similar someone is to us, the more likely we are to trust them. Second, we are prone to overestimating the likelihood of something that fits a representative pattern or stereotype.

All else being equal, our trust in someone is directly related to how similar he or she is to us. This suggests that we as attorneys should strive to be as similar to jurors as possible as long as we are doing so honestly. Remember, that almost none of us are Oscar winning actors who can convince jurors they are something they are not. Similarly, our fact and expert witnesses should appear to be as similar to jurors as possible. Flamboyant clothing and idiosyncratic behavior may make memorable characters but they are likely to create obstacles to juror trust.

The most difficult problem of the Representativeness Heuristic to deal with in litigation is that people of all cultures are less likely to trust those they perceive to be different from them. This unconscious tendency underlies all forms of racial, cultural, ethnic and religious biases and a litigator must be extremely tactful in addressing it to avoid creating any impression that a juror is a bigot. Moreover, due to the cultural stigma associated with bigotry, jurors may be unwilling or unable to acknowledge that any part of their decision process is affected by differences in skin color, culture or religion. This is also a heuristic especially subject to post hoc rationalizations, i.e. "It's not that the defendant is African-American; I really didn't like the look in his eyes during cross-examination." The only way to deal with this tendency is, as early as possible, to acknowledge your client's differences, to admit that all of us are more suspicious of people who are different than us and to ask jurors to do their best to avoid letting any differences affect their decisions consciously or subconsciously by questioning their decision-making process. Even so, it is unlikely that the even most conscientious juror will be able to entirely eliminate this tendency.

The second aspect of the Representativeness Heuristic is that people are prone to overestimating the likelihood of events that match common patterns and stereotypes. For example, test subjects are far more likely overestimate the probability that John from California is a drug user than John from Indiana. This increases the importance of understanding the social and cultural backgrounds of jurors and identifying any prevalent patterns, stereotypes and beliefs. Again, these must be dealt with delicately as discussed above.

Anchoring and Adjustment

Anchoring and adjustment is a very powerful heuristic in a juror's assessment of numerical values such as probabilities, percentages and monetary verdicts. In making such determinations, people generally start out with an initial value, the anchor, and adjust the value upward or downward. It is important to understand that it is exceptionally easy to create an anchor and only one anchor can exist at a time. In a seminal study, test subjects were first asked to write down the last four digits of their Social Security number and then were asked to bid on an item for sale. Those subjects with higher Social Security numbers consistently bid higher amounts because they were adjusting from a higher anchor.

The classic litigation example of anchoring and adjustment occurs during the jurors' assessment of the value to be assigned to a monetary verdict. Consider the case in which plaintiff's counsel values his client's claim at $800,000.00 while defense counsel believes it has a maximum value of $100,000.00. During closing arguments, plaintiff's counsel suggests an award of $1,250,000.00. As long as the jurors do not reject this figure as completely unreasonable it becomes the anchor and as long as it remains the anchor it is unlikely that the best defense arguments will cause the jurors to adjust downward to $100,000.00. Rather, the defense must negate the initial anchor by convincing the jurors that it is unreasonable, thus allowing defense counsel's arguments that the claim is worth no more than $50,000.00 to create a new anchor.

Conclusion

Most experienced litigators intuitively understand many of the tendencies exhibited by jurors. However, understanding that these tendencies arise from an evolutionarily-created, hard wired, non-deliberative decision making process gives us a greater understanding of how and to what extent we can overcome them.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.