Give the Jury What It Wants: Decision-Making in Trial Practice

• Author: Chris Patton, John Adams
• Pages: 41-46

Published in Litigation, Volume 47, Number 2, Winter 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

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Give the Jury What It Wants

Decision-Making

in Trial Practice

CHRIS PATTON AND JOHN ADAMS

The authors are with Lynn Pinker Hurst & Schwegmann LLP, Dallas.

Behavioral psychology research has exploded in popularity

as scientists have begun to explain the seemingly irrational

decisions people make every day. This research has expanded

into the realms of economics, marketing, and even political

science. The new-found potential of behavioral psychology

became self-evident when one of its primary architects—

Daniel Kahneman—won the Nobel Prize in Economics in

2002, marking the rise of so-called “behavioral economics.”

More recently, books applying its principles have topped the

best-seller charts, bringing discussions of “choice theory”

into the mainstream.

Yet, despite the surging popularity of behavioral psychology,

few researchers have addressed its implications in the jury trial

context. This article aims to nudge that application along by pro-

viding an initial tool kit, a starter set of applied research, to give

trial lawyers the best chance of persuading a jury. At the very

least, this article will illuminate the scientific principles under-

lying the lore of trial practice.

The Two Systems of Think ing

One foundational principle in this field is that not all decisions are

made the same way. Broadly speaking, human decision-making

falls into two modes of thinking, or “systems.” “System 1” thinking

occurs almost automatically, processing information without

effort or voluntary control. “System 2” thinking is effortful and

analytic, but it engages only if pushed and if necessary. System 1

operates flawlessly when someone commutes to work on a normal

day, following a familiar route to the office. Little thought goes

into what turns to make, when to exit, or what parking space to

choose. Humans like System 1—it’s easy. By contrast, System 2

engages when driving down an unfamiliar highway, approaching

a complicated intersection, while inspecting a map, or remem-

bering instructions given about a route. System 2 is the focused

effort necessary to analyze a complex problem.

Importantly, System 2—while rational and focused—is also

lazy and hard to engage. So, for example, when given a problem

of even moderate complexity, System 1 provides an intuitive,

shortcut answer, and many people fail to engage System 2 for a

more analytical answer, as in the following problem:

• A bat and ball cost $1.10.

• The bat costs one dollar more than the ball.

• How much does the ball cost?

System 1 immediately suggests the answer is 10 cents. For most

people, it takes a moment to stop, engage System 2, and realize that

of course that can’t be correct; the answer is 5 cents. But people