Confirmation bias is the tendency for a person to distort information to fit with existing beliefs. Any information that conflicts with those beliefs is either forgotten, dismissed, or reinterpreted to be consistent with the beliefs. While most attorneys today are well versed enough in social science to understand this phenomenon, it may come as a shock to see it put into practice. Without revealing any confidential information, I’d like to share some results of post-verdict interviews I conducted on behalf of an attorney I know well. The basic fact pattern was a multi-car collision with two defendants. One defendant was listed as being at fault in the police report. Disputes were mostly over causation and damages. The result was a defense verdict on both counts. The attorney hired me because he was shocked at the verdict with so much liability evidence. I should preface these juror quotes by stating that this is a good attorney. He is not a starter lawyer and he knows of David Ball techniques. Some of the things the jurors mention I can guarantee are not true. The purpose of my sharing this is so that you can see just how far confirmation bias will go. I will focus on just one of the jurors for purposes of proving the point.
The interview started out fairly standard. She I asked what she remembered most and she began walking me through the trial and the actions of the defendants. Fairly early on in the interview, she mentioned,
“Based on what the defense brought up, it was clear [the plaintiff] wasn’t being completely honest…I could see specific instances in her testimony where things weren’t lining up with what she said. That made me question her credibility.”
She later mentioned,
“The plaintiff’s attorney went on and on about how much chronic pain she was in and we never thought she wasn’t in pain but in one line of questioning by the defense they asked her how many times a week she has neck pain and she said 1-2.”
At this point, I knew credibility of the plaintiff was a major issue. It was brought up more than once by more than one juror and seemed to continue to build as more and more inconsistencies showed up. While the juror about other things of importance such as the jury instructions, I knew that a lying client is hard to overcome and that everything else she told me was likely skewed by this belief. As proof, when I asked about the attorneys, the juror started to talk about the plaintiff’s attorney. She stated,
“As we went through trial, other jurors brought up that he had some signals he was giving to the plaintiff and possibly some other witnesses and I started watching and noticed he would roll his eyes or subtly shake his head no or he would cross his leg and dust something off his pants and one of the other jurors said to pay attention to when he does those things, how the witness responds. When he rolled his eyes, the plaintiff would respond that she didn’t recall or if he moved his head to the left in a shaking motion, she would answer no…I got the feeling he was trying to lead her answers which again went back to me establishing her credibility.”
I know this attorney did no such thing, but it fit with some of the jurors’ views of the client and of trial attorneys in general so they believed it and used it to further those views.
Later in the interview, she again mentioned issues of credibility. Although the plaintiff saw only treating doctors and none were referred by the attorney, jurors selectively heard that the doctors were all referred by the plaintiff’s attorney:
“It seemed too convenient that she kept going back to the doctors who were hired by her attorney.”
I was not able to get a hold of many other members of the jury so I suppose I have no way of knowing for sure if there was a rogue juror on the panel or anything else suspicious but I saw no signs of anything other than jurors trying to come to a decision they felt was right. The plaintiff’s inconsistencies killed her chances at recovery and even went so far as to have jurors believing the plaintiff’s attorney was in cahoots. I share this information to make you aware of just how dangerous inconsistencies in a story can be. Coupled with a view that trial attorneys are lying manipulators to begin with and you will have a very hard time winning.