When I first started practicing law in 1994, the art of trial advocacy embraced the concept of storytelling as a central way of communicating the plaintiff’s cause to the jury. The convention, at that time, was to paint the plaintiff as the protagonist in his or her own life’s story. The jury would be sympathetic to his or her plight, and write a happy ending.
Very early on in my practice, however, the point-of-view started to change. In our tobacco cases, specifically, it became important (at least in our mind) to tell the story around the choices that the tobacco companies made. While this reversal, at first, seemed litigation-specific, I started to see lawyers change the point-of-view in construction defect, medical malpractice and other types of cases. More and more, the story started to be told around the defendant, as antagonist, so that the jury would focus on its bad choices, rather than second-guessing the plaintiff.
This shift corresponded with a concerted effort by trial lawyers to better understand jurors, and the pre-conceived notions that they were bringing with them into the jury box to decide cases. David Wenner and Greg Cusimano went out and conducted focus groups all over the country to gain information about the public’s attitudes and beliefs surrounding plaintiffs and their cases. To the empirical information that they collected, Wenner, Cusimano, and others applied lessons from the cognitive sciences about how people make decisions in developing the Overcoming Jury Bias speeches, writings, programs and other techniques in approaching plaintiff trial work. These approaches have evolved over the past twenty years into related frameworks, such as Friedman and Malone’s Rules of the Road, David Ball’s “Reptile”, and Mark Mandell’s Case Framing and Choice Theory.
As this evolution has occurred in the art of trial practice, a similar revolution has started to occur in the field of economics, where insights into decision-making from the fields of psychology, neuroscience and other cognitive studies have challenged the premises upon which neoclassical economic thinking had largely been based. With the publication of Thinking Fast and Slow by Daniel Kahneman, (a psychologist by profession who won the Nobel Prize in Economics for his work with another leading psychologist Amos Tversky), as well as Richard Thayler’s Nudge, Dan Ariely’s Predictably Irrational, and lighter, more popular works such as Freakonomics and Malcolm Gladwell’s Blink, the field of Behavioral Economics has entered the mainstream.
This paper is intended to review some of the major theories and findings of these cognitive scientists, so that their insights and information can be better understood and incorporated into the day-to-day practice of law, from case-preparation and discovery, to settlement negotiation, to jury selection and trial – as well as their potential implications on policy issues, such as tort reform.