Jury Appeal

The dominant view of decision making has remained fully in the rational choice camp for the last 50 years.  That is, decisions are made after weighing options (utility theory) and thinking through the possible outcomes.  However, the tide is starting to turn as technology has allowed us to see what part of the brain is being used and when it is used in the decision making process.

First, using fMRI imagery A. Bechara has demonstrated that the more ambiguity or uncertainty of outcome in a decision the more the parts of the brain that our emotions arise from are used.  Other research indicates that decision making initiates in the sub-conscious.  Literally, it is the sub-conscious driving the bus and the sub-conscious is intimately connected to emotions.  The technical term is called anticipatory bias.

Although the research is far from complete, what is emerging is a much more nuanced version of decision making which includes emotions as a dominant feature.

This points out that your jury or any other decision maker that is exposed to your case, will be making decisions based on their emotional response to your case, not just the elegant arguments on the “facts” of the case.  Add in that jurors/decision makers want to see and hear from the witnesses that have the most first hand knowledge of the event(s) leading to the litigation and you have the perfect ‘decision making’ storm with your witnesses testimony.

The bottom line is the single most important factor for any case is the emotional reaction decision makers have to your witnesses, be it the plaintiff or the fact witnesses.  Litigators do themselves a favor in keeping this fact at the top of their thinking, whether the decision maker is an insurance adjuster, mediator(s), or a jury.

Tags: Emotional Reaction to Witnesses