Every trial lawyer knows the drill: Some jurors have preconceived notions of what the verdict should be long before summations. They seek, during the trial, for little more than select facts to confirm what they already believe in their hearts.
There are others, for sure, that do what they can to keep that open mind. They want to first get every fact, and then decide the issue.
Confirmation bias and science are polar extremes.
Confirmation is obvious in politics as so many will do what they can to justify the conduct of those on their “team.” We see this every day.
Perhaps the easier way to see it is that it often rears its head with this thing we call personal relationships. We meet someone and, perhaps, we really, really, really want it to work out. It’s very hard to see the bad when someone smiles at us just so. We see the good “facts” and ignore the bad.
When framed in the context of romantic relationships some are more likely to understand the concept.
It would be fair to call confirmation bias in this manner little more than human nature. We want to be happy. And it keeps matrimonial lawyers very, very busy.
You would think that those screaming it was experimental, as an excuse to be anti-vax, would now be silent. Well, you would think that only if you were thinking in terms of facts and science. Not emotion. Not what the heart really, really wants to believe.
Anti-vaxers continue to persist in the face of science, coming up with continued reasons for why it is bad (which I refuse to link to).
Some will come up with the idea that they have great immune systems and that it can’t possibly happen to them. Others have a variety of tin foil hat conspiracies that defy Occam’s razor. Or see a history of government malfeasance. Some are just scared.
This is a problem exacerbated by social media and search engine algorithms that feed us information that we’d previously searched for, thereby reinforcing with “facts” that which we’d already decided.
Human emotion is tough to alter. In the courtroom, we can look jurors in the eye and explain that it must be the head that makes the decision and not the heart. Listen to all the evidence.
And in the courtroom we can (hopefully) debunk junk facts and junk science with cross-examination.
We can also, perhaps most importantly, alert jurors (starting with jury selection) that this process may occur. If the head sees confirmation bias coming, we hope it will alert the heart. (Of course, if you have lousy facts and are defending, you might want the heart to be making that decision.)
Getting rid of such potential jurors is obviously the first priority, but when people are unable to recognize confirmation bias in themselves, they believe they are being fair and impartial. Finding them is not always easy.
Getting people to recognize that confirmation bias is human nature, that we all want our preconceived notions to be verified with fact and to be on the lookout for it, is sometimes about the best we can do. Because it is also human nature that the more people hammer you to change your mind, the more you resist.
It’s the type of thing people must recognize in themselves. You can lead the horse to water, but…
I’m not so self-centered that I believe I can persuade an anti-vaxer to give up the constant hunt for any kind of “fact” that supports what the heart has already decided. They do approach the issue, after all, in different ways.
But perhaps, just maybe, an appreciation of how confirmation bias impacts all of us in our daily lives may cause some to take step back and re-visit an issue the heart had already decided.
And maybe, just maybe, that horse will drink on its own.
John Trumbull’s famous painting of the Declaration’s presentation hangs today in the Capitol Rotunda. It is owned by the citizens of the United States.
Each year I’ve used July 2nd as jury celebration day, as this is the day that the Continental Congress voted to liberate the Colonies from the Crown. It was signed two days later, and the date of signing (not voting) is memorialized on our Declaration of Independence.
John Adams thought that July 2nd was the day that would be “solemnized with Pomp and Parade, with Shows, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more.”
I see no compelling reason to re-invent the wheel and re-write posts from years gone by about why the day is so important, for juries and otherwise. Here are a few of the pieces:
Have a safe holiday one and all, but please, please, please take a few moments to read one of the greatest legal documents ever written, which sets forth the reasons our founders felt compelled to revolt against King George… ———— IN CONGRESS, JULY 4, 1776 The unanimous Declaration of the thirteen united States of America
When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.
He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.
He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil Power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For quartering large bodies of armed troops among us:
For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefit of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences:
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies
For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.
In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.
Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.
We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.
Ångest är en av de bidragande faktorerna som leder till erektil dysfunktion hos en frisk man. Den första upplevelsen av ED kan störa människans liv längre fram xn--bstapiller-q5a.se/kamagra/. Ångest kommer att stiga om och om igen, och erektil dysfunktion kommer sannolikt att återkomma. Detta leder till problem med människans efterföljande sexuella prestanda.
Watergate jury, by John Hart. The original hangs in my office.
Yesterday I wrote about the post-pandemic law office, and depositions and court conferences. Today I shift to jury trials.
On Monday, New York’s Chief Judge put out a statement with lots of good news, including the fact that experimental jury trials have started. For the courts outside of New York City, 70 criminal and civil trial have now been scheduled, and many completed.
And jury trials are to start next week in New York City. As per CJ DiFiore:
In New York City, our current plan is to restart civil jury trials next week, although we are carefully monitoring the COVID metrics in different areas of the City and have not yet finalized decisions on the number or locations of these initial jury trials. You can be sure, however, that we will make responsible decisions based on all of the latest data and public health guidance, and that no jurors, lawyers or witnesses or members of our staff will be asked to report to our courthouses unless we are confident in our ability to protect their health and safety. And every trial that does take place will be conducted in a building that is operated with the full range of safety protocols that have been implemented, tested and refined to protect the hundreds of jurors, lawyers, witnesses and staff who have already safely participated in our jury trial pilot over the last several weeks.
As someone who makes his living in the courtroom well, I’m obviously happy to see jury trials restart. For it is only with a jury in the box that an insurance company will be forced to come to the table in good faith to negotiate.
But. And you knew there had to be a “but,” didn’t you?
What will these jurors look like who appear amid a pandemic? Will they be representative of the general population, so that litigants have a jury of their peers?
Unlikely.
The jury pool as a whole is most likely to be skewed.
We can start with those most vulnerable to COVID-19: The elderly. What percentage of our seniors/retirees, who ordinarily would show up for their civic duty, will say “no way, ain’t gonna do it.” Because virus. This demographic is almost certain to decrease.
How about those with underlying respiratory conditions? You can rest assured more of those will also stay home than would ordinarily show up. And many of these will have conditions exacerbated by poor health care.
Minority populations? Black populations have been especially hard hit, and it would be reasonable to assume that, as a percentage, fewer would want to come into the close confines of a courthouse no matter how much the judiciary says it will be safe. Because potential jurors won’t really know what the lay of the land will look like until they get there.
Mass transit users? Less likely to come to the courthouse while those that can afford private transportion are more likely.
And what of those that think the virus is no big deal? This population, generally conservative, will be more likely to come to the courthouse to serve.
So, in summary, the jury pool in New York City is now likely to decrease the number of seniors, those with respiratory issues, Blacks, and the poor, and conversely more likely to include those who are young, white and conservative.
I’d love to say that I have a solution for this problem. I don’t.
But I’m open to suggestions. And I bet the judiciary is also once they recognize the problem.
When I was a puppy lawyer I learned a truth that’s come up time and again when trying cases: Jurors, for the most part, don’t think that the bad incident would have happened to them.
It doesn’t matter if it’s a car crash or medical malpractice. Somehow, someway, people want to believe they are different. The victim must have somehow been vulnerable or at fault.
And then the same issue popped up with COVID-19.
Before going on to an interview with David Lat on this subject, I want to reinforce something: I’m no different. I’m scheduled to turn 60 next week — I may cancel due to the virus, and stay 59 for another year — and figured that the virus probably wouldn’t make me ill. Despite being in the original east coast containment zone.
Why? I’ve been a distance runner for almost 30 years and run a bunch of marathons and have, I think, a pretty good set of lungs. And healthy lungs are important, we’ve been told, in fighting off the virus.
It was with this mindset that I read this op-ed in the New York Times featuring an interview with Lat, who recently spent six days intubated due to COVID and emerged to tell his story in many forums.
But this particular telling of the story, on the op-ed pages of the New York Times (The One Kind Of Distancing We Can’t Afford) grabbed me differently than others. It was about the way folks wanted to psychologically distance themselves from Lat.
They wanted to be different from him. To prove to themselves that they were not at the same risk.
The op-ed writer, Jennifer Senior, reacted the same way I did — and many of you likely are, after finding two of her doctor/nurse friends saw a 50-year-old woman die from COVID:
I, too, am a 50-year-old woman. As I listened to their stories, I had to stifle the same unlovely impulse. “But did your patients have a pre-existing condition?” I wanted to ask. “Were they fighting cancer, were they smokers, were they already floridly unwell?”
Nobody, but nobody, wants to believe they are at risk. We are all smarter than average.
Ms. Senior sets up the background regarding Lat, writing:
For Exhibit A, look no further than the Twitter account of David Lat, the 44-year-old lawyer, legal recruiter and founding editor of Above The Law, an immensely popular blog. Lat was diagnosed with Covid-19 in mid-March, and he’s tweeted about it ever since, save for the chilling stretch during which he was on a ventilator. When he returned, he posted a thread exploring the reasons some people die from Covid-19 while others suffer not at all.
This part is well known by many, as he first appeared in New York’s legal press and has since made numerous national appearances.
But the reactions of others to him is what really jumped off the page at me, for it went directly to something I’d known for decades about jurors when trying cases, yet never appreciated in myself:
He was suddenly pelted with queries about his own health. People were subtly probing to see whether there was a hidden reason he’d fallen ill.
It appears that Lat’s own friends were acting the same way as many jurors, which is to say, they were acting as humans subconsciously worried about self-preservation. They were looking for the reason that they would not have the same bad luck that Lat had. They were different. They had to be.
Lat went to say:
“Maybe I’m reading too much into things,” he replied, “but I received a number of responses that seemed to latch on excitedly to the mention of my exercise-induced asthma.”
And yet, he was exceptionally active, likely far, far more so than the average person. By orders of magnitude:
That he ran two New York City Marathons with this asthma in his 30s — and did high-intensity interval training three times a week until he fell ill — didn’t move a number of his followers. (The bluntest response: “Asthma is still asthma, waiting to knock you out, and any severe respiratory illness reveals the fundamental weakness of your lungs.”) Nor did the fact that Lat was healthy in every respect: normal blood pressure, normal weight, didn’t smoke, barely drank.
We all want to be different than that other poor fellow who was hit by the car or the victim of malpractice. We want it badly. But we aren’t.
There probably isn’t much we can do about that, as I think this is fundamental to human nature, and something I learned about others many years back.
But the least we can do is recognize it in ourselves.
It’s coming like a wave: The end of jury trials due to the coronavirus pandemic.
Jurors don’t want to show up in crowded places, judges don’t want them there, and none of them are to be blamed.
Suspended:
Houston (Harris County) – all civil trials
Michigan – all civil and some criminal trials: The Michigan Supreme Court has recommended that all civil jury trials in the state, as well as all criminal jury trials where the defendant is not in custody, be adjourned due to concerns about the COVID-19 coronavirus pandemic.
All civil and criminal (grand and petit) jury selections and jury trials scheduled to commence now through April 10, 2020 before any district or magistrate judge in any courthouse in the District of Connecticut
Update: A friend emails me that he is picking a jury in on of the New York counties, that they are jammed into a small room, that two of the potential jurors are doctors, and that this was a “complete disaster” waiting to happen:
we had two doctors on our panel yesterday – one was at Lenox hill in the city and the other at Elmhurst – they both told us privately that bringing in jurors to central jury and then up to the rooms for jury trials defies every warning given so far by the government or health care providers and in their professional opinions it is a complete disaster.
Update 2: The Southern District of New York will suspend jury trials (and naturalization ceremonies) set to start next week, as per the NY Post.
Update 3:Maryland – “All civil and criminal jury trials in the Circuit Courts throughout the state of Maryland scheduled to begin on March 16, 2020, through April 3, 2020, shall be suspended on an emergency basis”
Update 4:New Jersey: “Effective immediately, the Judiciary is suspending jury service for new trials,”
I’m going to stop with the updates, as of Friday morning 3/13, as it would be a full time job to keep up with the deluge to come.
