Excellent article in Inc. about how our brains trick us into mis-evaluating risks.
Voir Dire Tips: Peer Pressure
Trial attorneys know that witnesses routinely mis-remember, omit details and guild the lily to make themselves look better than they would if they just told the unvarnished truth. Trial attorneys, however, don't always consider that witnesses aren't the only truth-challenged people they will encounter in the courtroom. The others are prospective jurors.
It's not that prospective jurors intentionally lie...well, not usually anyway. But, like any of us who find ourselves in an unfamiliar setting, they feel pressure to conform to group norms, and to be viewed as reasonable and rational. To reduce this pressure, they adjust their behavior a little to fit in.
Psychologists call this tendency "social desirability bias"; but the rest of us just call it "peer pressure."
So, what effect does social desirability bias have on juror behavior during voir dire and what should trial attorneys do about it?
First, prospective jurors are likely to make their voir dire answers as short as they can, giving "yes" or "no" answers whenever possible. This shortens the interaction and reduces their tension. It also gives the attorney little, if any, useful information. To combat this, never ask prospective jurors yes or no questions, always ask open-ended questions which call for a description or an explanation.
Second, a prospective juror is likely to moderate the views they express to make their attitudes seem more consistent with the rest of the panelists. To cut down on this behavior, ask jurors to explain why they hold a view, ask them to describe what has led them to hold a particular view. The more detail you can get from them, the more likely they are to disclose how they really feel and what they really think.
Third, prospective jurors will virtually always agree with pro forma questions like: "Do you promise to be fair to my client?" or "If I prove ___ to you, would you be able to vote for my client?" Don't believe any promise you may extract from a prospective juror to be fair and impartial. Such promises are empty and are only made to get you to stop asking questions and leave them alone. Dispense with these generic questions entirely.
Challenging The "Illusion of Understanding"
Corporate defendants and their insurers know very well that jurors--especially plaintiff jurors--love to opine freely on topics that they genuinely know nothing about.
For example, in patent cases, jurors know exactly how the USPTO examines patent applications. In medmal cases, they know exactly why the plaintiff's rare cancer wasn't diagnosed. In products cases, they know exactly why the manufacturer ignored an "obvious" defect. Of course, nearly all these things that jurors know are really just illusions of knowledge, and coincidentally, happen to be good for plaintiffs and bad for defendants.
So, is there any way to combat this reliance on illusion? Maybe.
Dr. Philip Fernbach, from the University of Colorado, and some colleagues, discovered a way to challenge and undermine some kinds of this illusory knowledge. They described the method it in their paper "Political Extremism Is Supported by an Illusion of Understanding."
It's long been known that people think they understand complex phenomena in far more depth than they actually do (Rosenblit & Keil, 2002). Whether it's an airliner, a lawn sprinkler, or local anesthesia, we may get the basic principles of how something works, but we don't know as many operational details as we think we do. If you doubt this, just remember the last time you tried to repair a mechanical thingee around the house and found yourself saying: "Oh. So thaaat's how it works."
Anyway, Fernbach and his colleagues explored extreme political views and found that asking research subjects to explain their policy prescriptions in detail caused the subjects to recognize the limits of their knowledge and to then soften strident views. Attempting to explain how a complex process worked when they really didn't understand it caused Fernbach's subjects to recognize the limits of their knowledge and opened them up to persuasion by opponents.
So, in cases with a complex process or procedure at issue when you truly think your explanation is best, ask jurors to decide not only what happened, but also the details of how it happened.