Chapter 12
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Chapter 12 Mental Shortcuts and Biased Preexisting Beliefs
Those are twelve reasonable men in everyday life, Tom's jury, but you saw something come between them and reason. . . . There's something in our world that makes men lose their heads—they couldn't be fair if they tried.
In this chapter, I will bring together several of the concepts discussed in earlier chapters. These include the theories that listeners rely on preconceived notions (heuristics) as mental shortcuts, that most people will selectively filter evidence to support the conclusion they favor, and that advocacy will not be successful unless the argument is framed in a way that is consistent with attitudes and beliefs.
Mental Shortcuts
Albert Einstein once described "common sense" as a collection of prejudices. Prejudice is the formation of an adverse opinion without knowledge of the facts. Similarly, to prejudge something is to reach a conclusion before considering the evidence. Both are forms of heuristics, which are mental shortcuts that do not involve careful consideration of the subject matter. People pre-judge many things that may or may not be true. Such pre-judging is the source of stereotypes. When people evaluate based on a stereotype, it can become a form of self-fulfilling prophesy. In literature, a self-fulfilling prophesy was one where a prediction somehow caused itself to come true. Stereotypes can be like that. Rather than a neutral analysis, that is, "If I see it, I'll believe it," it is reversed, "If I believe it, I'll see it." Then, anything that conflicts with the stereotype is ignored, and the prophesy is fulfilled.
Like common sense, truisms are supposedly self-evident facts that are beyond dispute. Certainly, there are innumerable truisms that actually have a basis in fact: moldy food shouldn't be eaten, extended exposure to loud noise can affect hearing, too little exercise and too much food can result in weight gain. (As you were reading these things, you may have been nodding in agreement.) These are among the countless things that can't be seriously disputed. But there are also untrue things that many believe to be beyond serious dispute. Examples familiar to trial lawyers include beliefs that there are too many frivolous lawsuits and that jury verdicts are too high.
The model of a fair jury is one that will be unbiased and impartial. In reality, no juror is truly unbiased or impartial. Every person who is seated as a juror brings a lifetime of attitude-shaping experiences that will color perceptions and motivate preferred outcomes. These motivations are biases in the truest sense because they affect the process of reasoning, including how evidence is evaluated and decisions are made. Regardless of whether people believe they harbor no bias, they actually do and, depending on the strength of the bias, they will construct a rational model that supports the outcome they favor. In other words, regardless of the strength of the evidence, it will be disregarded if it is not consistent with what they are motivated to believe. Princeton psychology professor Ziva Kunda performed a substantial meta-analysis (research of research) on unconscious bias in the decision-making process and summarized her findings: "People are more likely to arrive at those conclusions they want to arrive at."2 Although without the benefit of scientific research, Simon and Garfunkel sang a similar line in the song, "The Boxer": ". . . a man hears what he wants to hear and disregards the rest."3
It is essential that trial lawyers understand the cognitive decision-making process, including the role that mental shortcuts, critical thinking, and worldview biases play. Without this knowledge, cases are presented in ways that are logical to us, but not persuasive to jurors. But just as it is a challenge for jurors to devote the mental energy and interest to understand science and complexity, I must present this information in a way that you will be willing to follow and absorb. In other words, even though the subject needs to be explained in some detail, I'll try to make it as interesting and fascinating (and sometimes perplexing) to you as it is to me. We will begin by examining the two most prominent theories of how decisions are made in response to persuasive...
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