Biases and heuristics often, but not always, go hand in hand. While bias is attributed to the absence of reflective thought, leading to limitations in judgment, heuristics are used intentionally when making inferences. Heuristics are common sense reasoning strategies employed by laypersons. They are “shortcuts” that accelerate the decision making process. Heuristics may or may not be based on logic and they may or may not lead to the correct decision. Heuristics have been extensively researched by social psychologists (and economists) since the 1970s. Magnus’ reports often include the heuristics employed by mock jurors when they deliberate on a case. Heuristics take several forms: (1) analogies, in which someone likens an unfamiliar situation, such as a complex securities fraud case, to something with which they are familiar; (2) knowledge based on past experience, which may or may not be relevant to the present situation, but which the perceiver believes is relevant; and (3) generalizations. The availability heuristic is an important part of many people’s judgments regarding new information. Sometimes, the fact that we can think of similar events, that is, these events can be recalled, increases the likelihood that these events occur frequently. Of course, the mere fact that one can recall a similar event does not, in fact, make it common; it merely makes it an event that can be recalled. For example, in the context of a lawsuit involving alleged securities fraud, we often hear mock jurors exclaim “These stock brokers and financial advisors are always taking advantage of the clients. Just think about what happened with Bernie Madoff!” when, in reality, only a relatively small percentage of stock brokers and financial advisors prey on their clients with Ponzi schemes. Considerable research has shown that many people ignore statistical information in favor of personal experience due to the more vivid or salient nature of the personal experience. For example, “I don’t care that the scientists say the COVID-19 vaccine is safe. I just happen to know that my cousin got sick from the vaccine so I’m not going to get vaccinated.” Recognizing that the average person is more likely to employ heuristical reasoning than logic when deciding a lawsuit will go a long way in attorneys’ ability to present their case in a manner to overcome this efficient, but error prone, decision making process.
Magnus’ reports often contain a section entitled “Heuristics” and, when I’m showing our sample report to prospective clients, I usually have to explain what a heuristic is and why it is important. I typically explain that heuristics are the ways that the jurors relate to a case – in their own language. Whether it is because lawyers use “big words” or the case involves complex issues, many times the lawyers do not know how to relate the issues in ways that many people will understand. They may think they do, but as it turns out sometimes, it is a good thing they did the mock jury because they did not convey things clearly. But, by conducting mock jury research and listening to the jurors’ heuristics, the attorney can learn how to relate, how to speak, and how to convey complex information in the language of the juror. This is not to suggest “dumbing it down,” but rather, to get in touch with ways to express an idea, an issue, in ways more likely to be understood by the people who will comprise the jury.
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