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Inside Jurors' Minds: The Hierarchy of Juror Decision-Making

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This book discusses the conscious and unconscious psychological factors that influence juror decision-making. Jurors inevitably rely on the same "thinking tools" at trial that they use to solve problems and make decisions in their everyday lives, which makes it almost impossible for them to divorce instinct and emotion from decision-making. Their fight-or-flight reflexes are stimulated not only by predators but by information that makes them fear for their personal safety--even if the threatening information is something they merely imagine.

Because self-preservation is a primal instinct, jurors tend to unconsciously respond by disregarding or altering the "threatening" evidence. Information that conflicts with their personal beliefs and biases often elicits a similar response. Therefore, what jurors hear and remember about a case will inevitably be a reflection of who they are, what they value, and what their life experiences have been.

Because jurors unconsciously weigh information in a hierarchical fashion, the "hierarchy of juror decision-making" can serve as a blueprint for creating strategies to counteract the most common thinking errors that can skew jurors' perceptions of the case. This is a valuable weapon that should be in every trial lawyer's arsenal.

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Table of Contents




Table of Contents

Chapter One. Introduction

I. The Hierarchy of Decision-Making

A. Level One: Real or Imagined Threats to Survival

B. Level Two: Belief in a Just World and Illusion of Control

C. Level Three: Social and Cultural Beliefs and Biases

D. Level Four: "Heuristics"

E. Level Five: Fully Engaged Cognitive Reasoning

II. Using the Hierarchy

Chapter Two. Believing Is Seeing: Introduction to Perception and Information Processing in the Courtroom

I. Introduction

II. Perception in the Courtroom

A. Moving from Perception to Recognition

B. Perceiving Versus Experiencing "Facts"

C. Resisting Persuasion

D. Linking to Juror Knowledge and Beliefs to Overcome Resistance

III. Decision Foundations: Information Processing and Reasoning in the Courtroom

A. Automatic Processing

B. Controlled Processing

C. Motivated Reasoning

IV. Helping Jurors Process Information Appropriately

Chapter Three. Memory

I. Introduction

A. Short-Term and Long-Term Memory

B. Information Overload ("Cognitive Busyness")

C. Methods of Encoding Memory

II. Schemata

A. How We Create Schemata

B. Accommodation and Assimilation

C. A Disastrous Example

III. The Reconstructive Nature of Memory

A. Explicit and Implicit Memory

B. Schemata and Memory Contamination

C. An Example of Inaccurate Memory Reconstruction

D. Interference

E. The Truth About Memory

IV. Ways to Improve Juror Memory

A. The Serial Position Effect

1. The Primacy Effect

2. Primacy and Juror "Trial Stories"

3. Primacy, Cognitive Dissonance, and Sunk Costs

4. The Recency Effect

B. Repetition, Rehearsal, and Chunking

C. "Digesting" and "Linking" the Evidence

D. Using Multiple Sensory Channels

E. Creating a Memorable Trial Story

1. Not Telling Too Much

2. Making Our Trial Story Memorable and "Available"

3. Offering Multiple Points of Reentry

F. Using Memorable Themes

G. Using Fables, Parables, Allegories, and Myths

Chapter Four. Why and How Jurors Manipulate Perception and Memory

I. Introduction

A. Basic Instinct: Maslow's Hierarchical Pyramid

B. The Primal Need for Self-Preservation and Protection

C. Cognitive Coping Strategies

1. Belief in a "Just World"

2. The Illusion of Control

D. Cognitive Dissonance

II. Searching for Explanations in the Courtroom

A. How Jurors Manipulate Their Perceptions in Criminal Cases

B. How Jurors Manipulate Their Perceptions in Civil Cases

C. How Plaintiff's Counsel Can Respond

D. An Example

E. Letting Jurors Do Their Job

Chapter Five. Common Juror Biases

I. Introduction to Biases

A. Linking and Neural Networking

B. Biased Assimilation and Belief Perseverance

C. Contamination of Trial Stories

D. Linking to Juror Belief Biases

II. Cognitive Biases That Affect Juror "Trial Story" Construction

A. The Confirmation Bias

B. The Hindsight Bias

1. Hindsight and Counterfactual Thinking

2. Blaming the Last Actor

C. The Self-Serving Bias

D. The False Consensus Effect

E. The Consequences of Leaving Gaps in Our Proof

III. Overcoming Juror Biases for the Plaintiff

IV. Knowing When Juror Biases Cannot Be Overcome

Chapter Six. Social Biases: Attribution Theory

I. Introduction

II. Attributional Biases

A. The Actor-Observer Bias

B. The Fundamental Attribution Error

C. Social Roles

1. The Attractiveness Bias

2. An Illusory Perception of Competence

III. Attributional Errors at Trial

A. Defensive Attribution

B. The Illusion of Professional Competence

IV. Overcoming Attributional Biases

A. Focusing on the Defendant

B. Avoiding Negativity

C. Using Options to Infer Intent

D. Using Rules to Show Wrongdoing

E. Living in a Just World?

Chapter Seven. Cultural Norms and Biases

I. Introduction

II. Individualistic and Collectivist Cultures

III. Normative Bias

A. Examples of Conforming Conduct to the "Norm"

B. The Normative Bias at Trial

1. The Need for Certainty Norm

2. The Need for Intent Norm

3. The Status Quo Norm

4. The "Politically Correct" Norm

5. The Aversion to Loss Norm

IV. "Imprinting" and "Culture Codes"

A. The Culture Code

B. Culture Codes in the Marketplace

C. American Culture Codes at Trial

1. Personal Responsibility

2. Suspicion of Lawyers and the Civil Justice System

3. Stereotyping and the Ultimate Attribution Error

4. Overcoming Cultural Biases

Chapter Eight. Heuristics and Other Information Processing Strategies

I. Introduction to Reasoning and Heuristics

A. How We Create Heuristics

B. Why Jurors Rely on Heuristics

II. Three Primary Heuristics

A. The Representativeness Heuristic

1. Perception of Randomness

2. Examples of the Representativeness Heuristic

3. Representativeness at Trial

B. The Availability Heuristic

1. Frequency of Exposure

2. Availability and Counterfactual Thinking

3. Availability and Experts

4. Accessibility and Priming

C. The Anchoring Heuristic

1. "Anchoring" at Trial

2. Anchoring and the Status Quo

3. Belief Biases as Anchors

III. Vividness and Saliency

A. Vividness

B. Saliency

Chapter Nine. Implementing What We've Learned

I. Opening Statement for the Plaintiff in a Dram Shop Case

II. Closing Argument for the Plaintiff in a Breast Cancer Case

III. Conclusion