Cognitive bias is a barrier that lawyers must overcome in court—and it’s not just biases of the jurors they must consider, but those, too, of the judge, opposing counsel, expert witnesses, and even one’s own self. New Orleans trial legend Dominic Gianna returns to May the Record Reflect to talk about how persuasion science can help you clear the tricky bias barrier. He presents the five most consequential cognitive biases to trial lawyers, the impact each has on fact finders, and suggests how you can connect with a diversity of jurors in the post-truth era.
Topics
4:08 What is cognitive bias?
6:55 Five common cognitive biases
7:35 Confirmation bias
10:40 Anchoring bias
13:31 Hindsight bias
18:00 Availability bias
24:48 Dom’s mantras for helping jurors process information
25:35 Affinity bias
28:52 Stupid lawyer tricks
32:18 Impact of our own biases
34:36 Biases from the bench
39:42 Appealing to a panel of judges
42:24 Expert witnesses bias impact on testimony, interpretation of evidence
44:09 Cognitive biases of opposing counsel
47:06 Persuasion in the post-truth era
57:51 Signoff questions
Quote
“Jurors don’t vote for the evidence. They vote for their views, and so as advocates, we have the obligation to our clients to try to understand those views. Where did those views come from? Where are they based? What attitudes, beliefs, and values, led these people, this person—this particular person—to a belief system that is so strong that he or she will ignore information that seemingly contradicts that confirmation bias?” Dominic Gianna
Resources
Dominic Gianna (LinkedIn)
Deposition Skills and Trial Skills: New Orleans (courses)
“Give ’em the Ol’ Razzle Dazzle (podcast episode)
“The Secrets of Persuasive Legal Storytelling,” with David Mann (podcast episode)
“Off Broadway and Into Court,” with Kevin Newbury and Kate Douglas (podcast episode)