Source of article Mind Matters Jury Consulting.

The U.S. legal system is based on the idea that people make decisions, or judgments, in a systematic, controlled and reasoned way devoid of emotion. The assumption is that jurors and judges can stack up the evidence on a scale to determine whether or not the burden of proof has been met. Jury instructions routinely command jurors to leave their emotion and sympathy out of their decision making process. Every time, however, we learn of a jury verdict that defies logic and we wish to yell out that the jury “just did not get it,” we have witnessed that people do not think the way the law expects. As psychologists we are especially attuned to the way people think and make decisions. As jury consultants, we work with attorneys to fit their expertise in advocating for their clients with how jurors think, which is the purpose of this blog.

Reason and emotion are traditionally viewed as polar opposites with emotion merely interfering with reason and clouding judgment. The reality is reason requires emotion. The human ability to reason evolved alongside our ability to respond emotionally. Because reason and emotion have developed together, when either one is missing people are no longer capable of functioning in the world. Not only is the separation of emotion from decision-making nearly impossible for people to do, it is abnormal.

In fact, the only people who can completely factor out emotion in their thought processes are those who have serious brain injuries. Individuals with certain types of brain damage interrupting emotional cues (but who otherwise have normal intelligence) are unable to make decisions at all. They cannot even make simple decisions like scheduling appointments because they are unable to decide what day or time would be ideal. Although they can reason and rationalize all the pros and cons of the decision, without the emotional cues to tip the scales in a certain direction, their decision-making is effectively paralyzed. Emotion is an essential element of making a decision.

As we make complex decisions in our lives – whether they involve which house to buy, whom to vote for, or how to reach a verdict as a juror in a civil case – reason often collides with emotion. Research examining the brains of people as they process information has shown that the ways we think and make decisions depends on how that information fits with what we already believe. When presented with information consistent with our attitudes, the areas of our brains responsible for logic and reason are most active. When everything fits, no real persuasion is occurring because a consistent belief already exists. The information is simply stored away to buttress this belief.

When faced with information that conflicts with our existing beliefs, however, the mental process is entirely different. In this situation, the emotion-centered areas of the brain are the most active as we struggle to make sense of the information. Conflicting information lights up the emotion-based areas of the brain and overrides the areas focused on reason and logic. Just hearing inconsistent information rarely leads to persuasion. Instead, people will most often reinterpret the threatening information so it is perceived as consistent with their attitudes, performing unconscious mental gymnastics so they feel good about their conclusions. This is why jury selection can be so crucial; if individuals are already committed to an idea or position no amount of factual evidence will change their mind. The goal is not to persuade these people, it is to find them.

The persuasive efforts at trial are focused on those jurors who do not have a strong position either way. For years now, attorneys have heard about the importance of presenting a case “story” because that is how people perceive and process information. Just as important, however, is attending to the likely emotional reaction jurors will have as the trial progresses. In a case with a catastrophic injury, if the defense does not find a way of addressing the sympathy jurors will rightly feel for the injured they are losing an opportunity. In the same type of case, if the plaintiff spends most of its time and efforts bolstering the sympathy that is already there, they are in danger of over-playing their hand and desensitizing the jury. Reason and emotion are not diametrically opposed; the two processes work together and when activated with purpose can be used to your advantage.

Through this blog, we will integrate our experience with jurors’ decision-making with emerging discoveries from psychology, neurology and linguistics. Our goal is to take the understanding of how people think and turn it into realistic strategies litigators can use whenever they are attempting to persuade an audience whether it is a jury panel, a judge or arbitrator, or a colleague.

If you have any questions, comments or topic areas that you would like us to address in future postings, please let us know (