Public Defense

6 tips for being an effective trial lawyer

By Gideon

Mike at C&F reviews a book that he recently read (and recommends), entitled “Don’t Believe Everything You Think: The 6 Basic Mistakes We Make in Thinking.” It is primarily a book about the human mind and the tricks it plays on us. Prof. Greenfield astutely reminds us all not to fall into these traps, if we are to represent our clients adequately.

I looked at it from another perspective. I think, generally speaking, as defense attorneys we are aware of these “tricks”. Some of them read just like the problems with eyewitness identification that are the subject of many papers and lots of research.

But this “list” organizes them succinctly (which, incidentally, is one of the “tricks”). If this is truly how people think, then we have just gained an insight into the minds of our jurors. We need to be aware of these “tricks” and be ready to either use them or to expose them.

Consider the following, with Mike’s summary:

Confirmation bias.  People hate being told they are wrong.  People love being told they are right.  Consequently, people only look for data proving themselves right.  Yet, in so doing, who knows what evidence we are missing proving ourselves wrong?

Anyone who is up on eyewitness id research knows about this. Witnesses reinforce their own memory and come to believe very strongly that what they saw is what they recollect. (As a side note, this is why it is imperative in eye id cases to attempt introducing the testimony of an expert.)

We are super simple Simons.  Why do stock markets rise and fall?  Why did your wife leave you?  We have one or two sentence explanations of very complex events.  In a sense, our need to oversimplify stems from the narrative fallacy and our inability to appreciate chance.   Give us a show story that makes the world seem logical, and we’re sold.

Because of that, we prudently invest in mutual funds and worry about the child molester next door rather than the one in our own homes.

This, I think, can work in two ways. Find that two sentence theory of your case and you might be able to convince the jury of whatever your position is. Again, this is not new, but just further reinforcement that you want to keep it as simple as possible. One of the first things I learned about trying a case to a jury was to keep is as simple as possible - and simple to us lawyers is not the same as simple to lay jurors. Break the case into small, bite-sized pieces and feed as few of them as possible to jurors.

The other way it can work is to understand that the State’s case is usually made up of such a simplicity. A man saw the defendant hit someone. Hence, the defendant is guilty. Knowing that people lean toward such simple solutions teaches us that we need to unravel them carefully, and simply. Take each strand, one at a time and deconstruct it.

The simpler the better. See Occam’s Razor (or Bennett’s Chainsaw). I’ll have to read the book, but in the meantime feel free to jump in with your thoughts on this.

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Full post as published by A Public Defender on May 28, 2008 (boomark / email).