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Hmmm….maybe you should ask for a bench trial

Wednesday, April 11, 2012
posted by Douglas Keene

Experienced (and even inexperienced) trial lawyers know that entrusting your case to a group of a dozen strangers in a jury is a gamble. The venire can shift dramatically from day to day, for no discernible reason. You never know what you are going to get. This is why jury selection is really a process of deselection–your best effort to weed out those who won’t listen to your story in spite your best efforts to engage them.

Anyone who has done mock trial research is accustomed to projects in which one ‘jury’ of mock jurors focus on different parts of the evidence than do the other juries, and come to a correspondingly different verdict. It’s what happens. And we learn as much as we can from that anomalous group about how they came to their decisions so we can fill those holes in the case narrative. It’s enough to make a trial lawyer (or their client) fearful about taking the case to court. Yet, it is not the norm to request a bench trial where a single judge decides your case based on the merits. New research suggests that perhaps bench trials should be considered more often.

Many of us think collaborative decisions are ‘better’ than individually made decisions due to the need to exchange perspectives and be more flexible than any individual decision maker. These researchers do not agree. They looked at the difference in individual decisions and those decisions made by collaborators. In this instance, they compared the decision-making process of individuals versus dyads.

What they found was that when decisions were made via collaboration (i.e., in dyads) and the decision-makers were then given additional information with which to potentially modify their decisions–they were less willing to modify than were the individual deciders. In other words, the collaborators were more rigid in maintaining their joint decisions than the individual deciders when given new and useful information. And this hurt them. They had a supporter who agreed with them, and they were less inclined to incorporate the new information.

Because of their determination to stick to their original decisions, collaborators ended up being less accurate than the individual decision-makers. So the researchers conclude that “two heads are not always better than one”.

It would be interesting to see what happens to this sort of research when you are looking at larger groups. Groups, for example, the size of deliberating juries. What we see in our pretrial research is that there are always some individuals who refuse to budge when given additional information. In one of our recent cases, two jurors refused to believe the moderator when she gave them additional information. “That isn’t true!” said the female juror. The moderator assured her it was true and they were being given additional information to see if it made a difference to their decision-making processes. Both the male and female juror dug in and refused to consider the new information. They ‘already knew’ what had happened and their minds were made up.

In a larger group, it’s possible other jurors can persuade recalcitrant hold-outs, but they can only do it if they have information available that plugs the holes in the narrative. As irritating as mock jurors who simply do not listen can be, they are often key to completing a tight case narrative that brings everyone along as you tell the story of your client. Like the sand particle in the oyster–some irritations can become pearls.

Minson JA, & Mueller JS (2012). The cost of collaboration: why joint decision making exacerbates rejection of outside information. Psychological Science, 23 (3), 219-24 PMID: 22344447

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