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. To contribute a newsletter article, contact: 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] - 2 - TRIAL TECHNIQUES AND TACTICS COMMITTEE NEWSLETTER January 2018 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 w: www.iadclaw.org p: 312.368.1494 f: 312.368.1854 e: [email protected] - 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). w: www.iadclaw.org p: 312.368.1494 f: 312.368.1854 e: [email protected] - 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.