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Why an uncertain attorney may be better than a cocky one

Wednesday, May 26, 2010
posted by Douglas Keene

Recently, ABC Radio’s The Science Show had a really terrific presentation on the Dunning-Kruger effect. They begin their broadcast with the story of the bank robber who rubbed lemon juice on his face thinking it would make him ‘invisible’ to the bank cameras. He was totally stunned when it didn’t work.

The Dunning-Kruger effect is essentially this: the more incompetent you are, the more inflated your perception of your own talent in that area! And perversely, the competent under-estimated their competency. “The idiots get smart while the smart get modest”.

We see this routinely in pre-trial research when group members take a small bit of knowledge and assume ‘expert status’. If no one questions their knowledge and they present well, a single ‘expert’ can derail your case.  That’s why it’s essential that you teach jurors clearly and thoroughly about the essential details of your case.  In highly technical cases such as patent disputes, it is often the shade-tree mechanics that are certain, while engineers and scientists presume far less.

There is some good news in the Dunning-Kruger effect. You can lessen the impact of the ‘self-appointed expert’ in the jury deliberation room through educating all the jurors. The incompetent do become more aware of their incompetence once they become more competent, but they need to be provided information that will carry them from their initial posture to a more informed position.  They will be equally emphatic either way.  Even if they refuse to consider your evidence other jurors will take it in and have information to discredit the (not-so) ‘expert’.

So if you find yourself feeling totally confident about a case—you may want to back up a bit and see where the narrative holes are for the average listener. Find out what questions your story elicits and then prepare your case accordingly.

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