PREPARATION FOR A JURY:
UNDERSTANDING JUROR BIASES
January 15, 2001
ABA Tort and Insurance Practice Section
Insurance Coverage Litigation Committee Midwinter Meeting
Bernalillo, New Mexico
Martin Q. Peterson, Ph.D.
Richard Jenson, M.A.
Jill P. Holmquist, Esq.
Martin Q. Peterson, Ph.D., Chief Scientist
Jill Holmquist, Esq., President
Forensic Anthropology Inc.
645 M Street, Suite 105
Lincoln, Nebraska 68508
402-477-4124
Richard Jenson, M.A., President
Jenson Research & Communications
12400 Highway 71 West
Suite 350 PMB 191
Austin, Texas 78736
512-342-0586
Copyright 2001 American Bar Association
INTRODUCTION
Among the greatest concerns attorneys have when facing trial is the jury: jury selection;
effectively communicating with the jury; and jury deliberations, when the case is in the jurors’
control. To some, trial seems like treading a minefield, where one misstep can be disastrous.
Attorneys dread jurors who might harbor prejudices against their clients because of race, social
affiliation, appearance, or other superficial characteristics, including the simple fact that the
client is a plaintiff or a defendant.
By the time trial begins, you, the attorney, know the case. You have a fairly good sense of what
opposing counsel’s strategy will be; you know what the expert witnesses have said and what they
are likely to say at trial; you have some familiarity with the judge; you have prepared your
witnesses for direct and cross-examination. The jury is the least known factor in the mix. What
have you done to prepare for the jury?
Demographic studies and surveys can provide helpful information. Tips from colleagues and
well-known trial attorneys can give you insight. But, in the end, you have to communicate with
the individual jurors on your panel. You can start preparing for your jury by learning, in broad
terms, how people think. The next step is to work directly with real people and find out firsthand
how they think about your case.
JUROR BIAS, JUROR PREJUDICE
Juror bias, or prejudice, is a big concern. The question, “how do we identify biased jurors?”
arises again and again. A better question is, “If we cannot identify or avoid biased jurors, how do
we deal with them?” We will start with gaining some understanding of the science of how people
think.
Social psychologists call the way in which we structure information in our minds about persons,
groups, roles or events “schemata” or “schemas.”i Juror biases, in the sense of prejudices, are
based on schemas people have developed. These biases are what we refer to as “attitudinal
biases.” People’s attitudes are based on their predisposition to evaluate and classify people,
objects, and events in some way, and to act or respond, with some consistency, in a particular
fashion toward those people, objects and events based on the evaluation and classification
made.ii In the context of bias, or prejudice, the attitude takes the form of stereotypes that have a
strong negative connotation.iii
Classic biases of this type are prejudices based on race, ethnicity, age, appearance,
socioeconomic status, and so on. They include the pro-plaintiff, anti-insurance company biases
some jurors may have and the anti-plaintiff, anti-plaintiffs’-lawyers attitudes others may have.
Fortunately, attitudes people have give only the predisposition to act in a certain way—they are
not absolutes. People do not act with unwavering consistency based on their attitudes. That
should be reassuring to trial lawyers who fear jurors’ prejudices. Such biases are challenging to
identify, particularly when jurors do not admit to having them.
JUROR BIAS, COGNITIVE BIAS
Attorneys face another kind of bias that can be equally challenging. Human beings have a
tendency to employ a number of cognitive biases that generally work to their advantage, but
occasionally can be disadvantageous. We distinguish cognitive biases from attitudinal biases
because people have differing attitudinal biases, but all people have the same cognitive biases
operating along with their differing attitudinal biases.
As with attitudinal biases, cognitive biases arise out of people’s schemas. Schemas help us
process efficiently the huge of amounts of information we take in day after day.iv Schematic
processing helps us recall information, make judgments, and draw inferences.v However, the
nature of our schemas affects how we recall information, make judgments and draw inferences.
This affect on “how” we think is known as cognitive bias.
Schemas help us remember things by providing an organizational framework for memory so that
we need not remember every single detail of what we experience. We remember some facts and
rely on our schemas to fill others in.vi But because schemas are simply frameworks for
information, they affect what we remember and what we forget.vii
One effect of schemas on memory is the tendency to remember facts that are consistent with our
schemas and to forget those that are not.viii We also tend to be overly accepting of information
that fits our schemas.ix In fact, research suggests that people employ a confirmatory bias when
collecting new information.x This “confirmation bias” results in the tendency for people to search
for information that confirms their initial hypotheses and to fail to examine alternative
hypotheses that also are consistent with the available information.xi This tendency to search out
confirming information and to remember this information has also been referred to as a
"selective perception" bias.xii
Interestingly, people do tend to remember information that contradicts their schemas, but they
forget information that is irrelevant to their schemas. xiii We remember contradictory information
more readily if the information is concrete rather than abstract, or when our schemas are easily
accessible, for example, when one has expertise in the subject of the information.xiv Although we
may remember it, the confirmation bias might result in people’s failure to use disconfirming
information encountered.xv
People generally resist changing their schemas, a phenomenon sometimes referred to as the
“belief perseverance bias.”xvi People will maintain their schemas in the face of contradictory
information, either by rationalizing the discrepancy or by integrating it into their schemas. Some
people can rationalize discrepancies so well that they see the discrepancies as supporting their
expectations.xvii Ironically, well-developed schemas, which contain more information and are
more complex, can actually be more accommodating of discrepancies.xviii As schemas become
more abstract, complex, organized, and compact, it becomes easier to incorporate exceptions and
inconsistencies.xix
In addition to affecting what we remember and how we handle new information, schemas affect
the inferences we make by supplying information to fill in gaps in our knowledge.xx Incomplete
or inaccurate schemas lead to incorrect inferences. Well-developed schemas not only lead to
correct inferences, but they can help one infer new, unknown, facts.xxi
Schemas also can influence our judgments or feelings about things.xxii Interestingly, people who
have more complex schemas tend to make less extreme judgments. This tendency is known as
the complexity-extremity effect.xxiii
It may be helpful to consider that the confirmation bias and belief perseverance bias arise
naturally out of our use of schemas. To help simplify information processing, we look to preexisting theories and organized knowledge rather than evaluating facts or data in isolation from
our past experiences.xxiv If we did the reverse, it would be like reinventing the wheel each time
we encountered any information. It also helps to know that people are not totally bound by their
schemas.
One impetus for change of schemas is an emotional reaction. Our emotions arise when we
encounter discrepancies that are relevant to our personal well-being or goals and objectives.xxv
Emotions motivate our cognitive activity and our behavior because we must deal with the
emotion-arousing situation.xxvi One of the results of the responsive cognitive activity can be a
change in schemas.xxvii
Cognition can likewise influence emotions and attitudes.xxviii People change attitudes as a result
of their cognitive responses to information.xxix Our tendency, of course, is to stay with our
existing attitudes and schemas. If an argument presented is close to one’s existing view, one
tends to generate supporting arguments that moves one closer to that argument. If an argument is
far from one’s existing view, one tends to generate oppositional arguments, resulting in one’s
movement away from the argument.xxx This is sometimes seen as a boomerang effect, where a
strong argument moves people away rather than pulling them in.xxxi
However, many variables affect cognitive responses. People with better developed schemas, i.e.,
those who have greater prior knowledge, and those who find information or arguments to be
more relevant are better able to counterargue and scrutinize the argument.xxxii People who lack
that ability will actually look more to external cues as to an argument’s validity and will engage
in less cognitive processing of the argument.xxxiii In trial, external cues might include the status of
expert witnesses and the attorneys.
We also tend to overestimate the causal impact of those things on which we focus our
attention.xxxiv This has been called a “focus of attention bias.”xxxv In trial, attorneys provide the
focus, quite deliberately, on certain facts. But various stimuli that attract our attention will also
affect our cognitive processing.xxxvi Thus, a person who talks the most in a meeting will be
perceived as exerting the most influence, even if that person simply talks excessively.xxxvii
Another error we make in processing of information is the “fundamental attribution error.”
Attribution is the process we use to identify the reasons for someone’s behavior.xxxviii We make
two different types of attribution: “dispositional attribution,” in which we attribute a person’s
behavior to some internal condition (their disposition), and “situational attribution,” in which we
attribute the behavior to some external, or environmental, factor.xxxix The “subtractive rule” in
attribution theory suggests that when we make a dispositional attribution about a person, we also
consider the situation and “subtract” the situational forces from the personal disposition that the
behavior alone would indicate.xl
Fundamental attribution error occurs when we fail to fully apply the subtractive rule, and we end
up overestimating dispositional factors and underestimating situational factors.xli We have a
tendency to ignore or minimize external factors and to interpret behavior as being caused by a
person’s intentions, motives or attitudes. One explanation of this is the focus of attention bias: a
person’s actions are often more obvious than situational pressures, and because our attention is
drawn to the person, we focus on their disposition.xlii In addition, we have motivational biases
related to our personal needs, interests and goals that result in attribution errors.xliii
Many other factors affect our cognitive processing. Distractions, for instance, at a high level will
prevent people from making attitude changes in the face of persuasive arguments.xliv But at low
to moderate levels of distraction, persuasive arguments will be more effective.xlv Another factor
is the order in which we perceive information. The “primacy effect” refers to our tendency to
give more weight to information presented closer to the beginning of an exposure, such as when
we first meet a person. The primacy effect simply means that we use later-acquired information
less, not that we interpret that information differently in a qualitative sense.xlvi There is also a
“recency effect,” which refers to the tendency of recently acquired information to exert greater
influence on our attitudes under some circumstances.xlvii
Obviously, how we think, how we process information cognitively and emotionally is incredibly
complex, and the brief discussion here merely scratches the surface of what researchers know.
What it indicates is that we cannot rely solely on one theory about cognition to frame litigation
strategy. People must be seen as individuals, with varying degrees of schema rigidity and
flexibility. That is why the best way to learn how people deal with the facts of a case is to talk
with real people.
IDENTIFYING JUROR BIAS THROUGH FOCUS GROUPS
Focus groups give you the opportunity to see the science of how people think applied in real life,
to your case. In focusing your case, you will see the attitudinal and cognitive biases discussed
above implemented by real people from the community that is relevant to your case.
You will see the confirmatory bias at work when some focus group participants ignore expert
testimony from one side because the testimony from the other side better fits their experience.
For example, members of a small community who lost a prominent doctor to skin cancer rejected
evidence presented by the plaintiff that early diagnosis in this case would have saved the victim,
because they “knew” that skin cancer is all but incurable. Or you might see it in people whose
schemas cannot contemplate the idea that someone would commit fraud, like the young woman
who asked incredulously, “why would someone waste two years of his life faking an injury for
$20 million?” In her schema about what is important in life, money was low on the list. Perhaps
she held honesty as paramount, or valued autonomy, pride in accomplishments, and other
measures of self-satisfaction much more highly.
You will witness the belief perseverance bias in people who have such strong biases that they
cannot separate their prejudices from the reality of your case. In one focus group, we met a
young woman whose friends had been the uninjured dupes in a contrived automobile accident for
the fraudulent collection of insurance benefits. She had developed from this incident a schema
that dictated that all car accidents are intentionally caused by the “victim” in order to get money.
Because of the strength of this bias, she could not—and would not—modify her schema, even
when the facts of the case clearly showed that the plaintiff was an innocent victim and the
defendant was entirely at fault. Her belief persisted despite compelling facts that contradicted it.
In addition, her judgment of the plaintiff was extreme because of the simplicity of her schema.
You will see people infer “facts” from situations that do not exist. For example, you might see a
man conclude that a person could not have suffered a serious head injury because the victim did
not immediately go to the hospital following an accident. Lacking the knowledge that head
injuries do not necessarily manifest themselves instantaneously, he filled in the inexplicable (to
him) gap in time from injury to hospitalization with his own explanation: the injury was
contrived. Or, you might see people attribute significance to something you believe to be legally
irrelevant. For example, a woman who was rear-ended when stopping properly at a yellow light,
was considered negligent because she had a tube of lipstick out of her purse. Focus group
participants believed that she had been, at some point, driving while putting on lipstick, and
therefore must have been negligent in some respect when she decided to stop for the light.
You will watch people engage in the fundamental attribution error. You might see people blame
the person injured because of an improperly designed ladder because it is easier to criticize the
person climbing the ladder than to examine the ladder’s design and actual functioning and
compare that to the person’s beliefs about the ladder’s functioning.
You will see the effects of the focus of attention bias. For example, you might see a defendant
corporation blamed for breaching a contract because the company fired an employee, for
unrelated reasons, close in time to some of the events of the alleged breach. You will be able to
experiment with the focus of attention bias yourself, emphasizing one set of facts in one focus
group and another set in a different focus group. You will see first hand how your exhibits draw
attention to, or distract from, your arguments.
You will watch and listen as people from varied backgrounds apply their knowledge and
experiences to your case. You will see them come to remarkably accurate conclusions based on
their common sense application of their schemas, and you will see them try to force their
preferred interpretation onto a situation that simply does not fit.
Most importantly, you will hear how people talk about the issues in the case and their own
experiences and points of view. Based on that, you can talk with your potential jurors in voir dire
and identify aspects of their schemas. You can identify people who have such rigid schemas, you
do not want them on the jury. You can describe a case schema that makes sense to them. You
can frame your arguments in ways that do not push people too far. You can provide facts that
you do not want them inferring incorrectly. You can shift the focus from one subject to another.
You can envision the deliberations that will take place after the case goes to the jury. And you
will be prepared.
CONCLUSION
Perhaps the greatest benefit from understanding how people think is recognizing that you, too,
use schemas, and you, too, resist changing them. Focus groups allow you to reconsider your
schemas about your case, about the kinds of jurors you will have, about how others view the
case. Examining your own biases will help you hear what focus group participants, the kinds of
people who will be on your jury, think about your case. Understanding your own biases and
theirs will prepare you for your jury. With that preparation, you will try a case your jurors hear,
understand and accept.
i
H. Andrew Michener & John D. DeLamater, Social Psychology, 102 (4th Ed. 1999). “Schemas” seems to be the
most widely used form in the literature today, so we will use that.
ii
Id. at 131-132.
iii
Id. at 133.
iv
Id. at 103.
v
Id. at 104-105.
vi
Id. at 104.
vii
T. M. Hess & S. J. Slaughter, Schematic knowledge influences on memory for scene information in young and
older adults, 26 Developmental Psychology 855-865 (1990); S. J. Sherman, et al., Social cognition, 40 Annual
Review of Psychology 281-326 (1989).
viii
ix
Michener & DeLamater, supra, at 104-105.
Id.
x
Id.; E. T. Higgins & J. A. Barg, Social cognition and social perception, 38 Annual Review of Psychology 369-425
(1987); M. Snyder and W.B. Swann, Jr., Hypothesis-testing processes in social interaction, 51 Journal of
Personality and Social Psychology 1202-1212 (1978).
xi
C. R. Mynatt, et al., Confirmation Bias in a Simulated Research Environment: An Experimental Study of Scientific
Inference, 29 Quarterly Journal of Experimental Psychology, 85-95 (1977).
xii
C. T. Kydd, & L. Aucoin-Drew, Strategies for Reducing Cognitive Bias in the Design and Implementation of
Decision Support Systems, Northeast Decision Sciences Institute Proceedings, (1983).
xiii
Cano, I., et al., Memory for stereotype-related material: A replication study with real-life social groups, 21
European Journal of Social Psychology 349-357 (1991); E. T. Higgins & J. A. Bargh, supra.
xiv
J. B Pryor, et al., The influence of the level of schema abstractness upon the processing of social information, 22
Journal of Experimental Social Psychology, 312-327 (1986); J. A. Bargh & R. D. Thein, Individual construct
accessibility, person memory, and the recall-judgment link: The case of information overload, 49 Journal of
Personality and Social Psychology, 1129-1146. (1985); S. T. Fiske, et al., The novice and the expert: Knowledgebased strategies in political cognition, 19 Journal of Experimental Social Psychology, 381-400 (1983); ); E. T.
Higgins & J. A. Bargh, supra.
xv
C. R. Mynatt, et al., Consequences of Confirmation and Disconfirmation in a Simulated Research Environment,
30 Quarterly Journal of Experimental Psychology 395-406 (1978).
xvi
Michener & DeLamater, supra, at 105.
xvii
S. T. Fiske, & S. E. Taylor, Social cognition , 149 (2nd ed. 1991).
xviii
Id.
xix
Id.
xx
Michener & DeLamater, supra, at 104-105.
xxi
Id. at 105.
xxii
Id.
xxiii
Id.
xxiv
R. P. Abelson, The psychological status of the script concept, 36 American Psychologist 715-729 (1981); D. G.
Bobrow & D. A. Norman, Some principles of memory schemata, Representation and understanding: Studies in
cognitive science, 131-150 (1975); D. E. Rumelhart & A. Ortony, A., The representation of knowledge in memory,
Schooling and the acquisition of knowledge, 99-136 (1977).
xxv
Jennifer M. George & Gareth R. Jones, Towards a Process Model of Individual Change in Organizations,
Department of Management Lowry Mays College & Graduate School of Business Texas A&M University,
Retrieved from northernlight.com 01/10/00. Article site address: http://mgmt.tamu.edu/mgmt.www faculty/GarethR-Jones/research/change.html. [This document may not be retrievable directly from this address.]
xxvi
N. H. Frijda,. Emotions are functional, most of the time, The nature of emotion: Fundamental questions, 112-122
(1994).
xxvii
George & Jones, supra.
xxviii
S. Folkman & R. S. Lazarus, If it changes it must be a process: Study of emotion and coping during three stages
of a college examination, 48 Journal of Personality and Social Psychology 150-170 (1985); R. S. Lazarus, Thoughts
on the relations between emotion and cognition, 37 American Psychologist 1019-1024 (1982); G. Mandler, The
structure of value: Accounting for taste, Affect and cognition: The seventeenth annual Carnegie Symposium on
Cognition (1982).
xxix
Evidence Persuasion and the Jury, APA Newsletters, Spring 1997, 96. Retrieved 01/03/00 at northernlight.com.
Article site address: http://www.apa.udel.edu/apa/archive/newletters/ v96n2/law/evidence.asp. [This document may
not be retrievable directly from this address.]
xxx
Id.
xxxi
Id.
xxxii
Id.
xxxiii
Id.
xxxiv
Michener & DeLamater, supra, at 125.
xxxv
Id.
xxxvi
Id.
xxxvii
Id.
xxxviii
xxxix
Id. at 124.
Id. at 117.
xl
Id. at 117, citing Y. Trope & O. Cohen, Perceptual and inferential determinants of behavior-correspondent
attributions, 25 Journal of Experimental Social Psychology 142-158 (1989); Y. Trope, et al., The perceptual and
inferential effects of situational inducements on dispositional attribution, 55 Journal of Personality and Social
Psychology 165-177 (1988).
xli
Id. at 124-125.
xlii
Id. at 125.
xliii
Id. at 126-127.
xliv
Evidence Persuasion and the Jury, supra.
xlv
Id.
xlvi
Michener & DeLamater, supra, at 115.
xlvii
Id. (“A recency effect is likely to occur when so much time has passed that we have largely forgotten our first
impression or when we are judging characteristics which change over time....”)