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April 2017

Expert Psychology: The Power of Trust at Trial

April 04, 2017

How would you respond if someone were to ask you: “Can most people be trusted?” Go on. Answer internally. Now, how would you answer a different, but similar, question: “Can most experts be trusted?” If you find yourself struggling to answer this one—where the previous question seemed easy and straightforward—ask yourself why. Is it because every expert is different and may have a different opinion? Wouldn’t the same be true for all people? As a juror, if you find yourself wanting to know the expert’s opinion first because you want to see if it sits right with you before you believe the expert, perhaps the real question would be: Can the jury ever trust an expert with whom they disagree and what do you do if that answer is no?

Trust in the United States

According to the General Social Survey conducted by NORC, an independent research association at the University of Chicago, people in the United States are generally less trusting of each other than they used to be. As of 2014, when asked “Generally speaking, would you say that most people can be trusted or that you can’t be too careful in dealing with people?” the number of people who stated they believe others can be trusted was at a historic low. So, trust nation-wide is most definitely down. What does this mean in the realm of testifying experts?

When you are not knowledgeable about an area of expertise, you rely on trust. There really is no other option. You either know or you believe. But there is also the very tricky additive of how you feel about a topic. In a recent Yale Law School study, author Dan H. Kahan explains “[i]ndividuals more readily impute expert knowledge and trustworthiness to information sources whom they perceive as sharing their worldviews and deny the same to those whose worldviews they perceive as different from theirs.” Meaning, people impute more expertise to the expert whose opinion they agree with, the one which more closely matches theirs. While it doesn’t sound crazy, in the world of expert testimony, it may sound a little frustrating. Why put up experts at all if trust is waning and the jury is pre-programmed to side with the expert who reinforces their already-ingrained beliefs? Because you know you need experts. In many cases, you must put forth expert testimony to sufficiently prove your case to withstand appeal. It’s possible to use the observed psychology behind expert testimony to your advantage at trial.

People in the United States are generally less trusting of each other than they used to be.

People impute more expertise to the expert whose opinion they agree with, the one which more closely matches theirs.

In many cases, you must put forth expert testimony to sufficiently prove your case to withstand appeal.

Juror Trust

Stay with us here. This is just a theory, but we would love your thoughts. We have previously reported on the effect of the observed dogmatic effect of the “expert label” in that it can make people, particularly those who don’t necessarily deserve the label, more close-minded in their opinions. What might happen if you combine these two principals at trial? At the outset of the trial, the jurors are not experts so they have to trust. While trust is generally waning, it is likely the jurors will trust the expert who states an opinion with which they already agree. For those who side with your expert, boost their confidence in that opinion. How? By labeling them as an expert. Not explicitly, but implicitly. Make complex issues seem so simple, so black and white, anyone can understand them and make a decision about what is right, what is fair.

Many would agree trials are rarely won by jurors
who are swayed. Rather, jurors are usually more
inclined, the minutethey set foot in the box, to
either agree withyour side or not.

After the evidence has been presented, summarize it in a manner that makes the jurors or the judge feel like the expert. Instill in them a belief that you now trust they know enough about the case that making the right decision will be an easy one. What will this do? Make them more dogmatic and close-minded in their agreement with your expert’s opinion, which is now their opinion, and one they will fight harder for in the jury room. You will need them to battle those jurors who do not agree with your expert and who will be, according to this research, less trusting of your expert. Many would agree trials are rarely won by jurors who are swayed. Rather, jurors are usually more inclined, the minute they set foot in the box, to either agree with your side or not and that does not change over the course of the trial. For those jurors who are pre-disposed to trust your expert, harness that by making them the experts too.

“Jurors, you’ve heard all the evidence. You heard Dr. So-and-So tell you what she thinks. Now all that matters is what you think. It’s simple really. You know how you feel about it. Trust your instinct and we know you will do the right thing.”

What do you think of this tactic? If trust these days is hard to come by and still biased, should you just tell the jury to trust themselves?

Comments

	Dave B.
	In response to Larry L.'s comment, I respectfully disagree. Many construction claims are complex with significant gray areas and often more than one interpretation of the causes of the incident/problem/damage. I rarely know where my investigation will lead until I have waded deep into the water. Even in cases where the causes are complex, I believe we as experts can serve the client who hires us by being truthful and professional while providing plausible, scientifically valid explanations. The other side's expert will endeavor to tell a more compelling story. We both should have the same set of facts, but honest experts may disagree regarding interpretation.
	4/13/2017 12:33:49 PM

	Frank F.
	If I were to decompose the article using (say) a terminology methodology, I'd say that there is a notion of Trust, it is not evident that there is a deeper understanding of what Trust is (its essential characteristics), and I don't believe Trust is the top element in the concept system. I believe Belief is a top element, with Rationality and Science as Belief Systems, along with Religion as another Belief System. Daubert, as pointed out elsewhere on this blog, is a technique for getting further into the Science zone of thinking. It has been my experience that it is possible to get people to hear your ideas, thinking, and evidence if they have some common Aesthetics, and nudge them forward in line with their Aesthetics. People with really really strong Aesthetics can be difficult to persuade, but it is a kinda puzzle to work through. For example: what Aesthetics is opposing counsel playing to? Are you a white expert with a black jury and a black defendant and a white police officer? Or maybe you're just an expert who happens to be white ... all depends upon how you handle yourself (I don't suggest trying to fake anything, just understand how you're perceived). One way to polish his/her chops is to argue/debate with people who disagree with you, and with people who make "dumb" arguments. Blogs or commenting on them, such as advocating for a new sewer/street/whatever in your hometown, is a good way the brush up on your rhetoric. Go to your local city council, home owners association, etc. because learning how to win (or not lose) these arguments is important. It's also important to learn how to lose argument, such as sticking to your principles, even if others don't believe you ... this might have long-term value for experts. Of course, it's not about necessarily dumbing down your arguments, it's learning how to polish your rhetoric in your expert presentation and maybe connect with a few more jurors and judges. Listen to your friends/colleagues who tell you you talk too much, you write too many details, and you're verbose ... or maybe the opposite (too little talk, not enough detail, too brief). One of my areas of expertise is information technology, so I try a couple times a year to explain to people how a computer works in about 10 minutes with just a pad of paper ... the goal is to explain, how my typing the words Hello World on the keyboard then show up on the screen. I try it with children, teens, and adults. My suggestion is: all experts should regularly practice explaining complex ideas. One more suggestion: try interacting with people who strongly disagree with you, try listening to a lecture on a topic you find uninteresting, try learning a skill in an area that you're terrible at (for me, that's dancing), try doing stuff you're not expert at and listen to experts guide you. Lastly, I had an experience before and after the presidential election that was memorable. I'm in New York City (a blue city in a blue state), and I was in a McDonald's in Queens (where Donald Trump is from), and they had Fox News on the flat panel display. Something on the TV made me laugh, I chuckled, and turned away from the TV to exit. But as I walked out, I heard someone say "So what are ya laughing at?" (uh oh, now I'm in trouble). He was a strong Trump supporter, and I mean the kind of Trump supporter that would be fairly normal in working-class neighborhoods in the City. I chatted for a couple minutes, it turns out this guy likes his conspiracy theories, including how the World Trade Center attack was a False Flag operation with the purported bombs on each floor blowing up in sequence, and he discounted NIST's analysis. I departed. In January, I was at a different McDonalds (still in Queens), I'm purchasing my food, and some guy is smiling at me with this big ear-to-ear grin. I asked "Do I know you?", he said Yes, "Where do I know you from?". He was holding his tray of food and said he would find a table for the two of us. Now this might sound weird outside the City, but it is commonplace that New Yorkers can chat up with strangers and have an extended conversation. He mentioned the McDonalds before the election, I remembered him, I remembered him as a strong Trump supporter with conspiracy theories, and I thought This Is Going To Be Tiring. So I broke the ice with "So I guess you're happy that your guy won, huh?". It turns out work/health/life were NOT going so well for him. We finished our conversation about three hours later. Really. I learned a lot about his thinking and perspective. He was a strong Obamacare opponent, he recently had medical bills, high deductibles, and had to borrow money (while losing his job due to age-ism). I tried taking on one idea that we disagreed upon, which was Obamacare. I told him "You can get a Platinum Plan for about $300/month with no deductibles in Obamacare". He was in disbelief, but by the end of the discussion and with some tips on navigating the website, he was hopeful, he was able to understand his perspectives both before and after, and he was on the road towards getting health insurance (New York has a good marketplace). And he/others changed some thinking in me, which might be valuable for our work: it turns out that many people in the US want the same things, but their priorities are different: surely most people want fiscal soundness, and most people have a heart for their neighbor's welfare, but the priorities are different for each person. Getting back to the main article: I believe it is possible to Thread The Needle with many jurors, but it takes some patience, and I believe it is largely centered around Aesthetics and Beliefs (with differing priorities), and Trust can be important, but Trust (as applied explicitly) is more of a tool/tactic and not a strategy. However, Truthfulness is a strategy. Sorry for the long post. :-)
	4/12/2017 11:20:07 PM

	Larry L.
	"...you know you need experts." In my opinion, if the law and facts are not on your side, no decent, effective expert will go to bat for your client. Attorneys can work either side of the v. on most cases, depends upon who calls them first. But a good, thoughtful expert can only work one side, the one that should prevail. All other things being equal, that confident expert is the one who will be trusted by a jury.
	4/11/2017 12:55:40 PM

	Sharon H.
	As a document examiner all have been bench trials except one. And my experience disturbed me so, I recognized that 2 of the 6 were a jury of my peers. The other 4 could not stay awake, wore the most exposing and inappropriate dress to court I was shocked into a new reality. Never would I have thought to support "professional jurors", but my experience was so disappointing with the quality of jury pool and their decorum, that we may have a new problem. Maybe drug testing would be a good screening before someone serves on a jury. The well written article makes for great conversation, but if the jury can't stay awake for the facts, then we have deeper problems.
	4/4/2017 1:32:01 PM

	Dave B.
	As an engineer with over 40 years experience, I often find myself struggling to distill complex issues so a jury (or a classroom of students) can grasp the basis for my opinion. Annie Dike makes a compelling argument that we must work at this so jurors aren't turned off by jargon. As an expert, I also believe we must avoid being an advocate. Just stick to the truth, and you don't need to memorize anything.
	4/4/2017 12:01:33 PM