Confirmation Bias: Both Friend and Foe

The recent presidential election and its aftermath have taught the Country much about Confirmation Bias.  Many supporters of President Trump are confident in their position the election was “stolen” and supporters of President Biden are just as confident that those espousing the opposite opinion are traitors. We are left with two polarizing opposite conclusions based on the same facts, not much different than a Jury Trial.
As the great Jon Stewart said, "There is no such thing as an impartial jury because there are no impartial people” Everyone has their own way of looking at things, their own confirmation bias. We have certain preconceived notions, certain biases and when resolving issues, we tend to gravitate towards facts and evidence that support our preconceived notions and tend to dismiss those that disagree with them.  Most people do not like to be wrong, worse yet being told or proven they are wrong; thus their confirmation bias tends to protect them.
We see and exhibit Confirmation Bias every day in life. The most drastic example is politics and religion; however, it also exists in simple ways in your place of employment, watching sports as well as family dinners. Anything that happens is clouded by your own bias. There is no right, there is no wrong, there just is.
If we all have this bias, how can you possibly try a case to a jury and convince them to believe your version, without knowing something about their bias? To do so would be like going to war with no weapons, a disaster waiting to happen. We conducted a series of on line focus groups earlier this year to try to learn how COVID has affected the way jurors generally think. Our results were consistent with other studies showing some minor changes in juror attitudes; however, the large change is the jurors available for the Jury Venire.

There is a built-in bias in every trial such as jurors’ thoughts on lawyers, personal injury lawsuits, people who bring lawsuits, doctors being sued, pain and suffering, responsibility, accountability, car accidents, slip and falls, nursing homes, and everything else that comes up at trial. As Trial Lawyers, you need to know these confirmation biases and how to frame your arguments and stories to either take advantage of the bias or attempt to repudiate them.
One of the main ways we use the confirmation bias in each case is to conduct Focus Groups. Although lawyers believe they know how certain stereotypes will think and vote, quite often these opinions are wrong. More importantly, not only are you attempting to gauge what a certain person might think about your case, but you are also trying to find out from them how you can change the presentation of your case to maximize their Confirmation Bias. This can be done by sequencing testimony and facts, or even exhibits. The Focus Group can also assist us in taking advantage of Confirmation Bias by affirmatively attacking the defense head-on in certain cases. In today’s climate, this may be the difference between a plaintiff verdict or one for the defense.

Another less utilized method of learning Confirmation Bias is to conduct surveys. Once you learn certain issues at a Focus Group, this can be collated, and then questions can be more focused and sent to a particular group of people. The group can be targeted and as little as 500 and as large as you want it to be.  The key is then interpreting the information you obtain from the Focus Group along with the Surveys, to begin determining which bias people have and what needs to be done to either plug the issue or take advantage at Trial.  More importantly, you can use the information you learn from these groups to help determine the type of jurors and bias you want to deselect during Voir Dire.

Confirmation Bias is what causes both a large verdict and a defense verdict, you must continually search and reframe to obtain the result you so desperately want. For similar suggestions head over to our Trial Tips, Art of Persuasion, and Podcast and let us know what you think