‘Acquittal: An Insider Reveals the Stories And Strategies Behind Today’s Most Infamous Verdicts’ by trial consultant Richard Gabriel is a great summer read which I recommend to all attorneys who try cases – even civil litigators.
Richard discusses six cases he worked on that all took place in the glare of the media spotlight: OJ Simpson’s murder trial; Heidi Fleiss’s pandering trial; a Whitewater trial; an Enron trial; Phil Spector’s murder trial; and Casey Anthony’s murder trial. I recommend it even if your cases never even make your building’s newsletter.
If it ever crossed your mind that OJ Simpson was acquitted of murder because he is black and most of his jurors were black, too, then you have to read this book. If you ever thought that Casey Anthony’s jury was either “completely stupid” or merely “mostly stupid,” then you should read this book.
Or if a jury verdict just plain ever puzzled you, then you should read this book.
And if you have ever wanted to persuade jurors that your case should win and still believe in the lawyer fallacy that it is the case’s facts that, in a robotic and mechanical way, lead to a verdict, then you should definitely read this book. (Also if you think that: call me!)
Richard begins with a brief visit to the main universal biases we all have – which means that your jurors have them, too. These are what good trial consultants are constantly paying attention for and the subsurface shoals around which we steer the case. They are:
- The treacherous Confirmation Bias. We see what we want to see. New information (factual or fallacious, by the way) is interpreted so as to support our pre-existing beliefs; ambiguous information is construed so as to confirm our pre-existing beliefs; and contrary information is disregarded outright.
- Norms, the rules and standards through which we see the world. It’s what I call the “shoulds” during jury selection. Moms/husbands should freak out immensely when their child/wife is reported missing. Corporate officers should know every detail of what happens in their businesses. Witnesses should have prepared for their trial testimony, so if they are confused or don’t remember something, they are probably lying.
- The slippery Availability Bias. Whatever we spend the most time on will be (mis)interpreted as The Most Important Thing in the Case, thus drawing the degree of scrutiny and skepticism that the Most Important Thing should draw. What’s wrong with that? When the Los Angeles District Attorney turned an eminently winnable double-murder prosecution into a multi-month seminar on cell molecular biology, they accidentally told the jurors that the science of the blood evidence is Really Important. That had the unintended consequence of inviting all the close inspection of jurors, which isn’t good when the procurers and sponsors of that evidence also brought their own personal baggage along with their investigative work. I firmly believe that most of the time that lawyers fall prey to spending too much time on something to the detriment of their case, it is nearly totally unintentional and just sort of . . . happens. Understandable. And fixable.
- The inevitable Hindsight Bias. The “If onlys.” If only George Zimmerman had waited in his car as the 911 operator told him. If only the insurer had made one phone call to this one doctor before denying the claim. This retrospection is irresistibly easy. It also plays heavily into the meta-question that jurors are really trying to answer, regardless of the verdict forms that the law gives them: What really happened? That question never appears on a verdict form, either civil or criminal, but damn: it sure drives the answers to whatever is on those forms.
Richard then takes the reader through the six cases and shows how these various sets of filters play out in the courts, in the minds of the jurors who are by definition not subject matter experts in the issues of the case. I am not surprised when laypeople talk with me about their surprise at various verdicts. I am a little more surprised when litigators do, though. It’s like just how little Major League Baseball players understand about the game beyond their own role (as when power hitters complain that the fences on their home ballparks are too far from home plate . . . apparently utterly without the knowledge that championship teams tend to have ballparks that favor their pitchers, not their power hitters). I know that law school teaches very little that is actually useful – I did great in trial practice classes, and never once learned about these psychological drivers, the prime building blocks of human decisionmaking. Alas, that is the very stuff of persuasion in court or mediation. Hell, understanding the above biases and processes is the very stuff of understanding oneself and trying to lead an integrated, slightly enlightened life. Would have been nice to know from the beginning of my litigation career.
All trial consultants share the following belief that Richard expresses well:
“But the problem with most attorneys in jury selection is that they really don’t care about the jurors. They care about the case. They feel the facts that they have spent months, if not years, working on will overcome all obstacles—a judge’s rulings, a witness’s shortcomings, and juror predispositions. It’s a useful delusion. But it prevents attorneys from understanding that the facts of their case are only as good as the jury’s interpretation of those facts. Their mistaken assumption is that a case presentation is a straight-chute data dump directly into an empty file folder in the jury’s collective brain. Not so. As soon as the words leave the attorney’s or witness’s lips, the information goes through a series of filters, subfilters, chutes, tunnels, and tracks that Rube Goldberg would be proud of. Thus, the check marks on the verdict form are as much a product of the juror’s own life experiences and psychological/cognitive processes as the evidence itself.” (Page 237.)
They didn’t teach us this in law school. Instead, they mistaught us that mastering the rules of procedure and evidence, honing our recall and application of them to lightning-fast twitch impulses, would yield victory. Well, that and tripping up opposing witnesses with even the most trivial slip-ups in cross-examination.
If you are an attorney reading this article, you likely have heard of these psychological phenomena in CLEs and workshops. That puts you ahead of the game. ‘Acquittal’ will help connect these abstract ideas to the nitty gritty details of real cases.
(In the interest of full disclosure, Richard is a dear friend and someone with whom I have worked many times over 20 years. I also disclose that he is a great guy and a good man. I would not, however, recommend his book if I didn’t think you should read it. Some things are outside the duties of friendship, and steering smart, busy people like yourself to unworthy books is well outside that call. I’m recommending it because if you are in litigation, I consider you a comrade.)