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“I can look into his eyes and just tell he is lying”

Monday, September 21, 2009
posted by Douglas Keene

intuition drives decisionsWe see this routinely on witness evaluation forms and we hear it in mock jury deliberations. Perhaps the most overt misinterpretation of intuition came almost ten years ago when we were doing a focus group and jurors didn’t like the plaintiff. One of the attorneys (who had done some community theater work) wanted to come out and “be” the plaintiff. She did. She appealed to the jurors and stated her case. She returned to behind the observation mirror. As the door closed behind her, a juror spat out “I thought so before I ever saw her in person but now I know for sure! That woman is on drugs.” She was convinced and she convinced some of the other jurors. Intuition can be a powerful thing.

As a further note on that embarrassing event, I will say that we urged our clients to use deposition excerpts and not live testimony with surrogate actors (even before this).  Jurors feel so strongly about the role of character, the power is truly in the messenger as much as the message.  But boy, that attorney’s law partners are still telling stories about that mock trial.  She will never live it down.

Recently, the Jaycee Dugard case was cracked by a police officer who credited “police intuition” for her suspicion, followed up by investigation and the eventual liberation of an 18 year kidnapping victim of a convicted pedophile. Intuition is powerful. And sometimes it’s right. And other times it is horribly wrong. One recent Texas case garnering a lot of attention across the country seemed to combine intuition with facts in a way that may have resulted in the execution of an innocent man. Intuition can close our eyes to the facts in front of us.  In focus groups and mock trials we have tested juror reactions to witness testimony excerpts that run 30 minutes and longer and compared them to reactions to the same witnesses after the first 8 minutes.  The scores are nearly identical.  What jurors conclude about character, likeability, and trustworthiness crystallizes within the first few minutes.  We see things how we want to see them. We make the story make sense.

How can we minimize the role of mistaken intuition in juror decision-making?

  • Decide in advance how intuition is likely to affect your case.  Do you want snap judgment or considered opinions?
  • If a key witness or party isn’t reliably likeable, have lead-in witnesses provide context for the key witness’s quirkiness that makes it more palatable.
  • If there are assumptions (aka inaccurate intuitions) that mock jurors attribute to your case or witnesses, establish an identity for your witnesses that accommodates the image and makes it more tolerable.
  • When jurors don’t have an explanation for something, they are free to fill in the gaps with incredible flights of fancy.  Ensure that your case makes sense and leaves no holes or questions for the jury to fill in without you.

Intuition may or not be a scary thing, but it is very powerful. Intuitive errors flourish when fueled by incomplete or distorted information given to us. Fill in the blanks. Clear up distortions. And then trust the process.

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