TRIAL TECHNIQUES AND TACTICS

JANUARY 2018

IN THIS ISSUE This article looks at how alternative facts are leading to a mistrust of science in the courtroom, potentially October 2014 impacting juries, and what you can do about it. At the conclusion of the article we also have a trial trip on using graphics to control the uncontrollable witness.

The Mistrust of Science in the Age of

Alternative Facts

ABOUT THE AUTHOR Kirstin Abel is a partner with Bodyfelt Mount in Portland, Oregon. She concentrates her practice on the defense of products liability and professional liability cases in Oregon and Southwest Washington. She can be reached at [email protected].

ABOUT THE COMMITTEE

The Trial Techniques and Tactics Committee promotes the development of trial skills and assists in the application of those skills to substantive areas of trial practice. Learn more about the Committee at www.iadclaw.org.

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Bryant J. Spann Vice Chair of Publications Thomas Combs & Spann, PLLC [email protected]

The International Association of Defense Counsel serves a distinguished, invitation-only membership of corporate and insurance defense lawyers. The IADC dedicates itself to enhancing the development of skills, professionalism and camaraderie in the practice of law in order to serve and benefit the civil justice system, the legal profession, society and our members. w: www.iadclaw.org p: 312.368.1494 f: 312.368.1854 e: [email protected]

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As trial lawyers, we sometimes pretend that jury decides which facts carry the weightier our trials are conducted in a vacuum. In our evidence. perfect world, the jury listens carefully – and objectively – to the evidence we put on and Times have changed, and the concept of the opinions of our experts; gives particular alternative facts has evolved into something credence to science, of course; is persuaded quite different. As they are now understood, by our argument; and weighs it all against the alternative facts are at their worst lies, and at other side’s evidence. This mythical jury their best, falsehoods. They are claims, checks its biases at the door, does not theories and personal opinions. Unlike actual consider facts outside the evidence, and facts, they are not objectively verifiable, reaches a verdict in our favor. No matter how incontrovertible, or indisputable. earnest or wishful our beliefs, psychology and social science tells us this simply is not true. Why does the proliferation of this newly Instead, jurors come to us with strongly held conceptualized use of alternative facts opinions and beliefs, framing every aspect of matter? It matters because some jurors are the way they view a case. They sometimes willing to believe them. They are willing to challenge irrefutable scientific fact and substitute actual facts with alternative facts. disregard evidence that does not conform They conflate facts with opinions, and with their personal “truth” in favor of certainty in things like science becomes alternative facts. Why does this happen and uncertain. how do we account for their bias? II. Why do Jurors Believe Alternative I. Alternative Facts and Why they Facts? Matter To understand the danger of alternative facts, The concept of alternative facts is not new, it is helpful to look to psychology to explain but it does have a new twist. Before Kellyanne why we might believe them in the first place. Conway brought her spin on the term into the In short, accepting alternative facts is about public discourse, “alternative facts” were just feeling secure in our beliefs. In a recent article that – facts in the alternate. Alternative facts published in Monitor on Psychology, author at their essence can be helpful. They assist us Kirsten Weir surmised that facts and opinion in testing new theories and hypotheses and in are not truly distinct. Instead, we arrive at learning more about the world around us. conclusions through a “biased set of cognitive processes.”1 Weir spoke with University of The traditional alternative fact is nothing new California, Irvine professor of psychology and to a lawyer. We trade in alternative facts social behavior Peter Ditto, PhD, who every day. They are at the heart of every trial. reported that although people can be They are the set of facts in a case, which each “thoughtful and rational,” their “wishes, side interprets differently. Plausible evidence hopes, fears and motivations often tip the is put on to support both sets of facts and the scales to make [them] more likely to accept

1 Kirsten Weir, Why We Believe Alternative Facts, American Psychological Association as publisher, Monitor on Psychology, Vol 48, No. 5, p. 24, May 2017, adapted with permission

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- 3 - TRIAL TECHNIQUES AND TACTICS COMMITTEE NEWSLETTER January 2018 something as true if it supports what [they] that when a result is reached repeatedly and want to believe.” This practice is referred to without fail, through independent, as “motivated reasoning.” According to reproducible testing, it is accepted as fact. In Ditto’s research, people use motivated a post-truth, alternative fact world, that reasoning to interpret facts differently if the essential agreement may not exist in the facts personally impact them. In other words, minds of all potential jurors. it is easier for people to believe the facts they want to believe than those they do not. And As access to various sources of information that is where alternative facts come in. If the increases, so does a juror’s belief that they can alternative facts support our views, we accept be just as much an expert as anyone else. them as fact without much discernment. Beyond the obvious problem that the average When they conflict with our views, we tend to juror does not necessarily have the dismiss actual facts as “fake news.” sophisticated knowledge or training to understand complex scientific analyses on Weir also spoke with Matthew Hornsey, PhD, their own, is the fact that jurors may have an a professor of psychology at University of inaccurate and skewed perspective of science Queensland about the role alternative facts itself. Not only do their personal experiences play in our culture. Dr. Hornsey studies why get in the way of their understanding of people accept or reject scientific information. science, but their perception of the certainty According to Hornsey, “these are wonderful of science can be wholly inaccurate. times for motivated reasoners. The internet provides an almost infinite number of sources The framework by which we assess scientific of information from which to choose your information is anything but scientific. preferred reality.” Andrew Shtulman, recently addressed how Motivated reasoning and cognitive bias are our experiences interfere with our nothing new, but we have taken them one understanding in his book Scienceblind: Why step further recently. In a culture of Our Intuitive Theories About the World Are So alternative facts, society has implicitly given Often Wrong.2 Shtulman, a cognitive and jurors permission to ignore evidence and developmental scientist from Occidental substitute their own personal beliefs. When College, explores the human tendency to try one person’s personal truth can substitute for to make sense of the world around us through another’s proven scientific evidence, it is a intuitive theories. The problem is that these frightening situation for trial lawyers. intuitive theories are formed as children, well before we have a grasp of the scientific III. What is the Deal with Science? theories that explain those same events. We then go through life getting in the way of The principle that we hold certain agreements ourselves when it comes to learning, and about the way the world works is a foundation understanding, the scientific explanation for of science. To trust in science, we must agree things. To overcome this, Shtulman says we

2 ANDREW SHTULMAN, SCIENCEBLIND: WHY OUR INTUITIVE THEORIES ABOUT THE WORLD ARE SO OFTEN WRONG (2017).

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- 4 - TRIAL TECHNIQUES AND TACTICS COMMITTEE NEWSLETTER January 2018 must break down our intuitive theories and and forensics, which they viewed as most start over, with science replacing intuition as certain, on the studies’ own merits, and not in the foundation of our beliefs. the framework of how they generally viewed that field of science. Our perception of the certainty of science may be linked largely to our intuitive theories. IV. Managing the Alternative Facts Take for example a recent study performed at Impact at Trial Carnegie Mellon University.3 There, researchers wanted to know how the public If we are going to overcome some jurors’ viewed the certainty of various scientific willingness to accept alternative facts, we disciplines ranging from psychology to nuclear need to rethink the way we present our cases. physics. First, we must reframe the narrative. If we accept that some jurors will believe what they What they found was fascinating. want to believe, regardless of what they hear, then we should work with their beliefs, rather Psychology was fairly accurately perceived as than fighting them – accept their beliefs and having a high level of uncertainty. Fields like show how those beliefs fit into, and are not forensics, which most scientists view as adverse to, our story of the case. somewhat uncertain and imprecise, were viewed by the public as having the most Our experts can be of great help. Have the precision. Forensics ranked above aerospace expert start slow by establishing that the engineering, nanotechnology, and nuclear expert relies on knowledge the juror has also. physics in the public’s perception of the This can prime the jurors to listen to what the certainty of the field. This is likely attributable expert has to say because the testimony to what we, as lawyers, have long understood begins with an agreement of the jurors’ own as the “CSI Effect.” The researchers also beliefs. This builds credibility with the jurors found, not surprisingly, that people’s as, not surprisingly, they tend to believe what judgments about the level of certainty of a they already believe. Once they understand scientific field are closely tied to their value that they share some of the same beliefs as judgments about those fields. Interestingly, the expert, an expert can move on to more there were minimal associations with level of complex areas of testimony the jurors likely education. will not have familiarity with. Jurors will be more likely to adopt the expert’s meatier However, when the researchers studied the opinions if the expert has already established relationship between the perception of the common ground. scientific field and the participant’s response to individual scientific studies, there was no Experts need to understand the general association. In other words, people were able public’s heavy skepticism of science. When an to evaluate the results of individual studies in expert communicates her opinions, she psychology, which they viewed as uncertain, should demonstrate that the underlying facts

3 Broomell, S.B., and Kane, P.B., Public Perception and Journal of Experimental Psychology: General, 286-304 Communication of Scientific Uncertainty, 146(2) (2017).

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- 5 - TRIAL TECHNIQUES AND TACTICS COMMITTEE NEWSLETTER January 2018 or data had a high level of precision. One of presented with facts in support of human- the other findings from the Carnegie Mellon caused climate change, the participants’ study was that the higher the level of estimates of the percentage of scientists in precision the public perceived in a scientific agreement on climate change went up. In the field, the more likely they were to view it as second study, when alternative facts (in the certain – forensics being the outlier, of course. current sense of the phrase) were also The expert should be guided by the results of included, the facts were not persuasive, and the Carnegie Mellon research and focus on the participants’ estimate of scientific the specifics of an individual study rather than consensus went down. In the third study, the field generally. The jurors will be able to participants were inoculated against the set aside their view of the field, and focus on alternative facts by being told they were going individual study results. Though the jury’s to be given misinformation along with facts. perception of the certainty of the science in The results were promising. The inoculation your trial may not be accurate, it will certainly preserved the persuasive impact of the facts inform their verdict. Having a better and offset the effects of the misinformation understanding of how they view the certainty by about one-half to two-thirds. of your science will help you communicate with them about it. You cannot fight alternative facts with facts alone. But with a combination of inoculation, Finally, alternative facts can be overcome by changing the narrative, and building common inoculation. A recent study established that ground between the jury and your experts, facts do not persuade when misinformation, you should be able to significantly lessen their or alternative facts, are also included.4 impact. However, when people were inoculated against the alternative facts, it severely limited the impact of those alternative facts.

In this study, conducted by researchers from

University of Cambridge, Yale, and George Mason University, participants were asked about the percentage of scientists who agree on human-caused climate change. After being

4 Sander van der Linden, et al., Inoculating the Public Against Misinformation about Climate Change, 1(2), Global Challenges (2017)

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TRIAL TIP: USING GRAPHICS TO CONTROL THE UNCONTROLLABLE WITNESS BY: BRYANT J. SPANN

You know who they are: the witnesses—usually “experts”—who run off at the mouth and try to skirt your well-prepared cross. These are the jerks who measure their egos by the length of their answers, and they can be difficult. My best approach for controlling such witnesses requires two steps: First, tell the Court in advance that this witness has verbal diarrhea; the judge does not like long, evasive answers any more than you do, and priming her for this witness’s antics may help you get a “doctor, answer the question” ruling in the heat of battle. Second, prepare graphics that will help you lasso this bronco. For example, put up a list of statements with which the expert has to agree (based on prior testimony), and have boxes marked “agree” or “disagree” next to them. When the witness agrees, put a check in the box. You can also have a list of things the witness has not done—talked to any fact witnesses, done his own testing, etc.—that allows you to check a “not done” box when the witness admits he hasn’t done them. Warning: Both of these techniques require serious, detailed preparation; every check-the-box answer should be cross- referenced to prior testimony or publications that can be shown to the witness instantly. I usually have the supporting quotes numbered, so that I can tell the presentation tech to just call up “number 57” to impeach the witness when he disagrees with himself. Using these lists shows the jury that you’ve done your homework, and if Dr. Blabbermouth continues not to answer your question, you can just point to it—“My question is right there on the screen, doctor. Can we get back to it?” Not only does this technique help you get your answer, but it reminds the jury that the witness is being evasive.

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Past Committee Newsletters

Visit the Committee’s newsletter archive online at www.iadclaw.org to read other articles published by the Committee. Prior articles include:

NOVEMBER 2017 NOVEMBER 2016 I’m Thinking of a Number Other Purposes: Admissibility of Evidence of Brian A. O'Connell Insurance under Federal Rule of Evidence

411 SEPTEMBER 2017 Brian O’Connell Lawyers Sanctioned for Prematurely

Terminating Deposition MAY 2016 Carl A. Aveni If it’s Not in the Record, it Never Happened:

Preserving the Record on Appeal AUGUST 2017 Emily Coughlin Scientific Literature in the Courtroom

Jim King MARCH 2016

The Art and Science of Closing Arguments JULY 2017 Chris Kenney A Trial Lawyer’s Guide to Effective Legal

Writing JANUARY 2016 Chris Kenney Say Goodbye To the “Ancient Documents”

Rule MARCH 2017 James King Defending Damages Claims Involving

Foreign Plaintiffs Thinking Outside the Box: A Review of Kurt B. Gerstner Innovations in Trial Practice

Chris Kenney JANUARY 2017

Ethical Issues for Defense Counsel: The Tri- NOVEMBER 2015 Partite Relationship Too Late to Remove? Maybe Not… R. Matthew Cairns Michael Zullo

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