The Experience Machine: How Our Minds Predict and Shape Reality, by professor of cognitive philosophy Andy Clark, was recognized as one of the best social science books released in 2023. In it, Clark highlights the changing views of how our brain experiences and interpret the world around us, drawing on extensive neuroscientific research to show us how our experiences of reality are quite different than what we tend to think. For centuries, we have adopted an “objective observer” view of our moment-to-moment experiences, taking in an objective world around us through our senses. Highlighting extensive research from the past decade, Clark explains how our brain operates much more efficiently than this “objective observer” view would require. Clark repeatedly cites the well-known finding that the brain uses 20% of our body’s energy despite only accounting for 2% of its weight. The brain requires a lot of energy and consequently, must find ways to be more efficient. Instead of an “objective observer,” the brain is a prediction machine that instead constantly projects its expectations and predictions on the world around it, only taking note when those expectations and predictions prove wrong. It is a much more efficient process because the brain only has to expend energy when expectations are violated. Consequently, he argues that much of the world we experience around us is our projection, while our actual interaction with objective reality is limited to the process of expectation adjustment. We are built for patterns and to recognize when and where a pattern breaks.
It does not stop there. In a recent New York Times Magazine interview, Professor of Psychology and Neurosciences Charan Ranganath highlighted a similar process in memory. We often think of our memories as an objective snapshot of a past moment in time, but instead Ranganath explains how we are constantly modifying our memories over time to fit the needs of the moment within which we are recalling them. It’s why two friends or family members might remember the same situation totally differently from each other. A classic example is a lovable neighbor who ended up being a despicable criminal. Our contemporaneous moments with this neighbor raised no red flags because he was always nice and sociable, but after his crimes become known with an arrest, we go back and modify those memories, identifying moments that we now, weeks, months, or years later, identify as “obvious indications” of his criminal personality, even though we did not see it that way at the time.
This might all seem overly philosophical, but any litigator who has talked with extended family in the last four years or has recently watched mock jurors discuss their case knows all too well that people bring their own baggage to any discussion, which significantly impacts how they perceive the issues at hand. A juror who has had a negative experience on the road with a truck driver might believe all truck drivers drive recklessly, which directly influences their views of the evidence in a trucking accident case. It might even cause them to inject their own experiences and beliefs to fill information gaps in the case. Similarly, a juror who was laid off when their much-needed department (in their view) was needlessly eliminated to increase the company’s profitability is more likely to believe greed drives corporate decision-
making in a case against a large corporate defendant. The examples are endless, and they come naturally to each and every one of us regardless of politics, religion, creed or otherwise.
You might be wondering at this point why we chose to write about this topic now as it is arguably not a new insight to suggest that jurors bring experiences and attitudes to the table that shape how they view the case. Many have written about this for decades. There are two reasons this topic should be revisited: (1) experiences and expectations are exerting greater influence on deliberations than ever before; and (2) many litigators have recently expressed frustration with how difficult it has gotten to shake jurors of the baggage they bring to the courtroom that leads them to adopt erroneous and/or highly prejudicial views of the facts in this case.
Let’s take a moment to talk about the first reason, which largely drives the second reason. Experiences and expectations have always shaped the discussion in the deliberation room. However, we have noticed a recent trend of jurors clinging to their personal experiences and beliefs with an unprecedented level of stubbornness. One compelling explanation may be the widespread decline in trust in our society, which has been shown in research conducted by Pew Research Center and many other researchers. Americans have experienced a widespread decline in trust in every institution around them. Even the professions we have always thought to be made up of heroes such as doctors, nurses, and teachers, have come under immense scrutiny as more and more members of our society view them with suspicion. This is important because, as we struggle to trust the things around us, it is much easier to revert to our personal experiences and beliefs than it is to go through the much more rigorous process of determining whether we should trust a person or institution we do not know. Our personal experiences and beliefs are the truest things we have in the world, making it easier for them to win out in the face of the uncertainty that our growing distrust has created.
From the litigator’s perspective, there is nothing worse than the feeling that the facts do not matter in your case because jurors are going to want to believe something else. It is the feeling of powerless that might come after a mock trial gone south or war stories from colleagues who lost cases that had “strong facts.” In this month’s column, we want to identify two practical steps litigators can take to break through these beliefs and expectations to regain control of the story of the case.
Violate jurors’ expectations. This is the first and most important step and cannot be emphasized enough as a critical strategy for tackling the stubbornness of post-pandemic jurors. We start by going back to Andy Clark’s book where he describes the brain as a prediction machine, only interacting with the “objective world” when our expectations and predictions require adjustment. While it was not written as a strategy or advice book, the obvious conclusion is that violations of expectations are key to getting someone’s attention and changing their views. Consequently, litigators should identify the problematic expectations jurors bring to the deliberation room (ideally through focus group or mock trial research) and look for ways to immediately violate those expectations. We have previously written about the example of an alternative damages strategy for corporate defendants in admitted liability cases. Jurors come to the courtroom in these cases expecting the corporate defendant to try to pay as little as possible, nickel and diming the plaintiff at every opportunity. Consequently, an alternative damages strategy focused around the theme of “how can money help the plaintiff,” combined with several specific (and generous) examples in closing argument of how money can help the plaintiff, often violates jurors’ expectations. Whereas they were expecting the corporate defendant to make all sorts of arguments for why it should not have to pay much, this strategy presentation is all about how the plaintiff should be paid generously. Notably, the examples of how money can help the plaintiff can seem generous without adding up to significant numbers. In one of our recent cases involving the family members of the deceased plaintiff, the defense proposed, among other things, jurors set aside enough money for the family to take time to get away throughout the year to find moments of peace and create new memories. The defense proposed jurors set aside enough money for the family to get away 4–5 times a year and suggested $10K per getaway. $50K a year over ten years equates to $500K, which is insignificant to the $45M the plaintiff was asking for. The getaways were only one line item in a lengthy list the defendant proposed for how money could help the plaintiff, but they highlight how corporate defendants can violate jurors’ expectations.
Recognize the difference between legal logic and narrative logic. How do you know what jurors expect? How do you know which expectations to violate? Bank on jurors to rely on narrative logic. Legal logic is the applicable law that tells jurors how they are supposed to decide the case. Narrative logic is the story framework jurors apply to the case to make sense of it, which then gets projected onto the legal logic. Every case has parallel structures and the relationship between these two structures is essential to jurors caring about the legal logic. Compelling narrative logic will defeat strong legal logic most of the time. Research shows jury instructions are often ineffective and jurors will not hesitate to ignore the applicable law if they are motivated to do so. Yet, most litigators remain married to the strategy of proving their legal arguments rather than simply persuading jurors. In a recent mock trial, we watched the defense drown itself in efforts to prove its machinery broke down for reasons other than what the plaintiff alleged, when the plaintiff unreasonably struck the machine. While the different causes had legal relevance (in theory), the jurors did not care what about the cause because it was still the defendant’s machine that failed and caused the injury. Even worse, the defense focus on this technical argument overshadowed the much broader and simpler story of how the plaintiff idiotically struck the machine and caused his own injury. We see attorneys get caught up in these legalities, which jurors often deem trivial, all the time. It most often occurs on the defense side of the case, which only reinforces jurors’ expectations that corporate defendants rely on technicalities to evade responsibility. In short, it’s time to deprioritize the legal framework of the case. After all, research shows 84% of millennials, the emerging population on juries, would go with their personal opinions over the law in a case where the judge’s instructions on the law were in conflict with those personal opinions.
Thomas M. O’Toole, Ph.D. is President of Sound Jury Consulting in Seattle, WA. Kevin R. Boully, Ph.D. is Senior Consultant at Perkins Coie in Denver, CO.
