Chapter 18

• Jurisdiction: United States

Chapter 18 Final Thoughts on Science, Persuasion, and Trials

With the passage of time, we are blessed with more information to draw upon, more history to learn from, more science to apply . . . more chances to improve. While it is sometimes difficult, we try to make the adjustments these resources require. We try to become better than we were.

—California Court of Appeal Justice William Bedsworth (People v. Ogaz, 53 Cal. App. 5th 280 (2020))

Most of the techniques that are used by successful trial lawyers are based on how they were taught, and which were modified after bad outcomes (what didn't work) and good outcomes (what worked). However, sometimes a trial lawyer's successes are based not only on employing techniques that (unknown to them) have a solid basis in decision science but also on intangibles such as charisma, good looks, vocal quality, or stature. For example, in chapter 12 ("Mental Shortcuts and Biased Preexisting Beliefs"), we explored how jurors will frequently rely on heuristics to make snap judgments. A lawyer with movie star qualities or a soothing voice may, by luck of genetics, get the benefit of peripheral cues picked up by jurors who find such qualities attractive. (The rest of us, if we were in movies, would probably be the sidekick, the comic relief, or some other kind of character.)

Nevertheless, all of us who strive to advocate successfully for our clients need to understand how decisions are affected by emotions, cognitive capacity, biases, heuristics, reactance, cognitive dissonance, conservatism, and credibility. All of these things have been the subject of extensive research by social scientists. However, this research is not taught in law schools, nor has most of it been specifically applied to trial lawyers and jurors. This book was created to provide this knowledge to trial lawyers who can use it to improve their ability to achieve a just outcome for their clients.

But in the process of writing this book, I realized that trial lawyers are not the only ones who must reconsider how trials are presented; judges also need to have a better understanding of the conditions affecting the ability of jurors to be unbiased and to make good decisions. Cognitive science takes into consideration not only the predispositions and attitudes that color decisions, but also the limitations inherent in the ability of jurors to understand and absorb new and often complicated material. And that led me to realize that there are some glaring problems affecting our system of justice.

Judges Ignoring Juror Needs

The justice that we seek is not defined by who wins, but rather as the system that permits parties the ability to develop and present cases to a finder of fact that will fairly evaluate the merits. The ability to fairly evaluate the merits of a case is hindered if there are conditions that are inconsistent with the cognitive processing that jurors require. These conditions make the jury's task more difficult than it already is.

For over forty years as a trial lawyer, I have seen the practices and pageantry of jury trials in California courtrooms from Sacramento to San Diego. The social science research exposes the fact that well-meaning judges are thwarting the jurors' ability to fully comprehend the evidence because they are not aware of cognitive science. Trial judges who tell us to "respect the jury's time" want to maximize the number of minutes and hours that jurors spend in the jury box...