One of the most meaningful mantras of modern spiritualism is “all perception is projection”. Another way of saying that is “we see what we expect to see”. Psychologists call this “cognitive bias”, or mental distortion of what we observe because of the bias of our subconscious mind. Our mind does not accept gaps or instants of lack of data and will fill in where necessary to create the illusion of a whole picture. Before digital recording, the movie industry was based on this physical reality by projecting minimal amounts of frames which our brains filled in the blanks, so the visual seemed to be seamless.
This cognitive bias is nowhere more present than a courtroom and the discrepancies of eye-witness accounts. This explains why eyewitnesses can testify to such widely different evidence and also why jurors can see evidence so differently. Put ten people in a room and show them the same thing and you will get ten different versions of what they saw. It becomes critical in a courtroom but also can be important in ordinary life to understand where people are coming from because that determines what they perceive.
To understand how this works, it is helpful to know how our brain creates these biases. There are some common types of cognitive bias recognized by mental and emotional health experts. If you know just a few of them you will be able to deal with people, clients, witnesses and jurors more adeptly. Madison Avenue been taking advantage of these biases for decades.
- Anchoring Bias. Our conscious brain works linearly. The order in which we receive information will influence how and what we conclude at the end. This is highly important for trial lawyers to understand. It is much more important for the jury to sympathize with your client at the beginning of a trial than for the jury to know the truth. For example, lawyers need to establish a connection with the jury during voir dire by telling stories and getting them to relax before getting them to make judgments about the evidence. If the jury feels good about you and your client in the beginning, they are much more likely to accept your version of the evidence at the end.
- Confirmation Bias. People look for ways to justify their beliefs. They will look for clues and associations that confirm their core beliefs and ignore or dismiss evidence that conflicts with those same beliefs. I represented a teenaged client who was rear ended while driving a four-wheeler motorcycle. I put on a pretty good case and until the verdict thought we had won. What I didn’t know was the citizens of that county had a general bias against kids on four wheelers and I was doomed before we started.
- Fortune Telling Bias. People will fill in the blanks and rationalize vague statements with our own experiences. Psychics and other mediums manipulate this bias by making general statements that apply to everyone and let the client make the connection to themselves. “You have been hurt in the past” or “you are a survivor” are nonsensical statements that people will take to heart instantly and begin to believe that the speaker has special knowledge they need to hear. When the psychic asks about the details the doors to the gold mine opens. Lawyers should ask similar questions of juries; you can drill down to their prejudices quickly. The truth is we all have experienced trauma or life events that were painful, but it seems that the one who asks the questions is compassionate or empathetic.
- Mona Lisa Bias. How much you are attracted to someone influences all of your judgements of them. If you find you like someone who is generally attractive and don’t like someone who isn’t, you need to be extra careful to rethink your opinion based on objective criteria.
- Tribal Bias. People generally will believe people they identify with and not believe people they perceive as not like them. It is “us” versus “them”. We understand what we know, we fear what we do not understand. If you are representing someone that is perceived to be an outsider, get the jury to imagine themselves in your client’s position.
Unfortunately, there isn’t space to discuss all cognitive bias, there are over 150 different cultural, racial, religious, ethnic and other biases. The best way for a lawyer to level the playing field is to anticipate how the subconscious bias of clients, jurors, judges and witnesses will present during the trial. It may make all of the difference.