By Dr. Ken Broda Bahm:
Litigators tend to implicitly believe that evidence can overcome attitudes and bias. Yes, it may be an uphill battle against a judge or juror’s hardened beliefs, but once they pay attention to the evidence, we will be able to change their minds, right? Even as we strike some, the faith that we can convert most is a cornerstone of the adversary system. But that faith depends on our target’s use of analytical ability. What if analytical ability itself isn’t reliable, but is instead beholden to attitudes and biases? What if the very faculty that would permit us to change our minds actually dials itself down when confronted with information that threatens current beliefs?
It is one of the more depressing recent findings on human cognition, but it turns out to be correct: We become less smart when evaluating attitude-inconsistent information. A recent study coming out of Yale Cultural Cognition Project (Kahan et al., 2013) looked at the ways our ideological beliefs interact with our numeracy: That means being “number-smart” or, more technically, “a disposition to engage quantitative information in a reflective and systematic way and use it to support valid inferences.” That tendency, which goes beyond math and also reflects a disposition to engage in effortful and deliberative thinking, obviously matters a great deal in a legal context. The study shows that being high in numeracy does not reduce the tendency to interpret complex data along the lines of preexisting beliefs, instead it increased that tendency. In other words, “more numerate subjects would use their quantitative reasoning capacity selectively to confirm their interpretation of the data to the result most consistent with their political outlook.” That finding carries some profound implications for litigators and this post will take a look at a few.
Motivated Thinking: Is it Ignorance or Will?
Some disputes center on empirical understanding and not just opinions: guns either increase the levels of violence or they don’t. Fossil fuel use either warms the planet or it doesn’t. But ask people to review facts to answer those questions and that review will be driven by whether the reviewer supports widespread gun ownership or believes in global warming. Strongly held opinions persist even in the presence of empirical evidence that would refute them. The study (Kahan et al., 2013) focused on comparing two different explanations for this common problem. These explanations focus on whether that tendency is created by a deficiency in comprehension or a need to maintain identity.
The first explanation is called the “Science Comprehension Thesis” (or SCT), that posits the problem is due to defects in the public’s knowledge or reasoning capacities, or based on a preference for simple heuristic-based judgment. The second explanation is the “Identity-Protective Cognition Thesis” (or ICT), suggesting people think in ways that protect their identity including their strongly held beliefs. SCT would suggest that people who are better in numeracy should be able to more accurately understand data, both when it conforms to or when it conflicts with their existing beliefs. ICT, on the other hand, would expect cultural beliefs to disable these faculties, making it just as hard for high numeracy individuals as for low numeracy individuals to understand information that conflicts with their current beliefs.
To study which explanation comes out on top, the researchers used different versions of the same
table, like the one on the right, and asked 1111 nationally and ideologically diverse adult research participants to interpret it. They applied this approach in four conditions: two looking at the ideologically neutral question of whether a skin cream caused a rash to get better or worse, and two looking at the ideologically loaded question of whether a ban on concealed handguns caused crime to increase or decrease. All required understanding the table enough to allow the comparison of ratios from one row to the next.
If SCT is the correct explanation, then participant’s ability to understand the chart should be helped by greater numeracy, whether they believe they are looking at the effectiveness of a skin rash cream or the effectiveness of gun control. If ICT is correct, however, then participants’ ability to get a correct answer should be lessened when that answer would conflict with their beliefs about gun control. The winner? ICT. Not only did greater numeracy not help participants’ ability to understand information conflicting with their views, it actually hurt that ability. Especially among those with high numeracy, gun supporters could look at the chart above and mistakenly answer that crime is more likely to increase following a ban on the concealed carrying of handguns, and when the numbers were reversed, that error applied to gun opponents as well. Participants in the study tended to use their greater numeracy skills to get the correct answer only when that response was consistent with their political outlook.
Litigators: Adapt to Clouded Analysis
Let me end with a few quick notes on how this finding, as well as the more general trend in research on motivated thinking, should be taken to heart by litigators.
Don’t Trust in Teaching Alone:
It is not just a question of whether you can make it clear enough, it is a question of whether you can adapt to an audience’s motivation. We’ve written before that people — not just jurors but judges and arbitrators too — tend to select a position based on affinity or unarticulated motive and then find reasons to support it. Countering with reasons, then, is an incomplete strategy if you aren’t aligning your position with their motive.
Disentagle Your Facts from Cultural Beliefs
In some cases, the implied message can be: “Your beliefs already support our side,” but in other situations, you are going to want some distance between your case and those broad beliefs. If your case truly hinges on the kind of hot-button issues that breed loyalty more than rationality, then your jury selection had better be outstanding. In most other cases, however, a bit of disentagling is in order. The level of anti-plaintiff bias, for example, means that most plaintiffs will want to show that the case isn’t about all or most plaintiffs, it is about this person. The same applies to anti-corporate bias on the defense side.
Translate What Jurors Are Telling You in Voir Dire
Most importantly, this study points to a difference between what people say they do (form conclusions based on evidence) from what they actually do (find evidence to support conclusions). That influences how we should understand what they say in voir dire as well. When the prospective juror responds, “Yes, I can listen to the evidence and the law even when it goes against my beliefs…” imagine that they are also adding, “…but I will do that with a reduced analytical capacity to the point that I may not even understand the information going against my beliefs.” So when making your strikes, trust the attitude not the promise.
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Other Posts on Motivated Reasoning:
- No Blank Slate (Part 1): In Opening, Treat Your Jurors as Motivated Reasoners
- Persuade With Participation, Part Two: Learn from Modern Cognitive Science
- Convert Your Conspiracy Theorists: Research Shows it Can Be Done
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Photo Credit: 123rf.com, used under license.