By Dr. Ken Broda Bahm:
“Epistemology,” or the question of how we know what we know, seems like an abstract rather than a practical idea. But when it comes to the practical task of assessing and persuading jurors, the epistemological habits of those jurors can play a very real role. Their own styles of deciding what is true, styles that have been built up throughout their development and day-to-day lives, serves as foundation for whether they see courtroom arguments as supported, proven, or true.
How jurors reach that opinion is driven in part by their epistemological foundation. One of the foremost thinkers on epistemological modes of thought is Columbia University educator Deanna Kuhn, who has spent her career focusing on how people think about truth claims and learn to reason effectively. In her works (e.g., Education for Thinking, 2008) she focuses on three broad developmental stages. There are the absolutists who see a black and white world, where reality is direct, can be observed, and contains few ambiguities. Children start at this stage, and while some people get stuck there, most others move on to the multiplist stage, where we acknowledge that information is subjectively filtered, and our knowledge and senses can be fallible, and thus we can see multiple viewpoints as having validity. Some of that perspective can be healthy, but it can also devolve into the view that all knowledge is “just opinion,” and all opinions are functionally equal. For that reason, it is best to continue developing to an evaluationist stage where we acknowledge that, while we lack certainty, we can make distinctions and think about better and worse truth claims.
It is clearly this last stage, the evaluationist stage, that best facilitates reasonable argument and scientific advances. If you want critical thinkers, then you want evaluationists. In a courtroom, that is also the perspective that facilitates deliberation. While children often progress through these stages as they reach the age of reason, there is also no guarantee of advancement. Current events continue to show that society is stocked with a substantial number of adult absolutists, who are prone to become authoritarians. Dr. Gwen Dewar in Psychology Today references a study of individuals studying for an MBA, found that “multiplist” was the most common style of thinking, and no more than half of adults in any background made the transition to evaluationist. So what does that say about the wisdom of broadly assuming that jurors can reason their way to an evaluative result? A focus on the three kinds of epistemology provides another dimension to consider when assessing, selecting, and persuading your juror.
The Absolutist Juror
Some jurors look for a black and white world. The courtroom might even be uniquely suited to that perspective, focusing as it does on the absolute terms of “legal” or “illegal,” “liable” or “not liable.” There are a number of ways that a juror’s absolutism might come to the fore. They might see corporations as evil monoliths, or focus exclusively on a contract’s black and white terms instead of on a broader understanding of the relationship and communication. One perspective that arguably depends on absolutism is the Reptile perspective on winning plaintiff’s cases. Focusing on whether the defendant’s actions were “safe or unsafe,” the perspective emphasizes a black and white world, and defendants need to push back by emphasizing reasonable shades of gray.
How to Identify Absolutism. There are tools, like the “F-scale,” for identifying authoritarians who rely on absolutist modes of thinking. There are also scales that more directly measure moral absolutism. Ultimately, you will also want to identify the potential absolutes that are meaningful to your case, and ask about those in jury selection.
The Multiplist Juror
The multiplist juror believes that everyone has their own piece of the truth, and this juror is likely to see different perspectives as equal opinions. They may even have trouble seeing a distinction between facts and beliefs or to see facts as “alternative facts” that can be selected and tailored according to one’s needs. This kind of juror might be more likely to believe enough about each side’s case that they’ll end up saying that everyone shares the blame, and “a pox on both their houses.” They might also place a high threshold for proof and be more favorable for the side that doesn’t bear that burden. And if all you are looking for is reasonable doubt, then these jurors have that in spades.
How to Identify Multiplism. An effective tool in voir dire is the “forced-choice” question that presents potential jurors with two options and asks which is closer to their own view. A certain proportion of your pool will have trouble answering this form of question, and a non-answer tells you something as well: Those jurors are less likely to have strong opinions and more likely to vacillate or vote with the majority in deliberations.
The Evaluationist Juror
The evaluationist juror avoids the dead ends of both moral absolutes and moral relativism, and instead reasons their way to the best answer in each case. One might think that an evaluationist juror would be desired in all cases, because deliberation itself requires this kind of thinking and argument. But that is an ideal. It will depend on the case whether an evaluationist will favor you more than a juror who approaches the task with greater simplicity. In some cases, the mental shortcut favors you. Sometimes, however, your side requires difficult concepts or difficult deliberations. For example, to find in your favor, a jury might need to be thorough enough to get past their initial assumptions and to look deeper than what might seem like the “obvious” answer.
How to Identify Evaluationism. For these cases, it will often be worthwhile to identify jurors with a high “need for cognition,” since they will shun oversimplifications and embrace the difficult mental work of drawing distinctions.
One word I haven’t used so far is “intelligence.” While educators and lawyers are likely to naturally favor evaluationists and to belong to that category, it is a mistake to equate that with intelligence. There are smart absolutists and smart multiplists as well. That is why it is best thought of as a mental habit rather than as a capacity. Ultimately, it is one more item for the tool box we use in understanding jurors.
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Other Posts on Thinking Style:
- Complex Case? Beware of “Low Effort Thinkers”
- Put T.o.M. On Your Team
- Don’t Adapt to ‘Learning Style’
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Image credit: 123rf.com, combined and edited by author