Trial Magazine

To suggest that Daniel Kahneman and Amos Tversky have influenced trial practice is a gross understatement.¹ Trial lawyers use their science daily. They may not know it, but they do. Trial lawyers are applied social psychologists, attention professionals, and choice architects.² Using psychological science in trial practice is a natural fit.

In 1994, AAJ appointed Greg Cusimano and me to chair a committee to study the topic. We gathered data through surveys, focus groups, and in-depth interviews. When we became perplexed, we did a lot of reading. That reading led to a close relationship with Stanford University psychologist Lee Ross. He helped me understand our data through a psychological lens and introduced me to Kahneman and Tversky’s work—it transformed my thinking.

Greg and I developed the Jury Bias ModelTM from our research. The empirical part of the model categorized the biases we observed across studies.³ The prescriptive part of the model incorporated all that we learned from Kahneman and Tversky.⁴ The Jury Bias Model included heuristics and biases. It covered the trial story, representative, confirmation, belief perseverance, availability, norm, anchoring, and empathy biases.⁵ It also incorporated framing, the endowment effect, reference dependence, and loss aversion.⁶ The model translated Kahneman and Tversky from science to practice to help trial lawyers reduce juror bias in their cases.⁷

AAJ coined the term “Overcoming Jury Bias” (OJB), and education programs on the topic began in 1997. It was the first time AAJ was teaching lawyers the science that Kahneman and Tversky generated. The OJB seminars made it commonplace for trial lawyers to think about trials in new and creative ways. Using confirmation, anchoring, and availability biases is now the norm when brainstorming cases. Today, discussing plaintiffs’ cases seldom occurs without Kahneman and Tversky’s science.

I waited for Daniel (Danny) Kahneman at Le Pain Quotidien, a charming European café chain, in Greenwich Village. I had first met Danny in 2000. We spent several hours discussing the application of his work to trial practice. After that, I saw Danny at various conferences and meetings.

Frankly, I was surprised he agreed to the interview—and in fact, he suggested it be in-person instead of on the phone. His time is in high demand. I also recalled asking him once if he ever considered the application of his work to psychotherapy. He suggested his interest was more on a policy and macro level. Trial practice, like psychotherapy, affects one person at a time. I was not confident he would be interested in the topic of trial advocacy, but he readily agreed to meet.

For more than two decades, I have pored over every word of Danny’s work. Condensing my questions to one hour was tough, but I hoped it would be more of a conversation than an interview. The meeting lasted one hour—we ate brunch and talked.

Systems 1 and 2

Danny has written that there are two mental processes—fast and slow.⁸ The fast, unconscious process, known as “System 1,” is automatic and effortless. The slow, conscious process, known as “System 2,” is controlled and effortful.

How do jurors use these two processes? Research shows that as cognitive load increases, reliance on System 1 also increases.¹⁰ Jurors often operate under significant cognitive load in complex civil cases. When I asked Danny how jurors use Systems 1 and 2 at trial and how deliberations impact the use of these two systems, he responded: “The main theme of my book is that very often people think they are reasoning and reasoning logically, but in fact, System 1 is whispering conclusions and System 2 generates information and rationalization.”

How System 1 affects trials. For years, I have seen how jurors operate under the constraints of a significant cognitive load. A trial is message-dense and judgment-rich. Which side benefits from System 1 thinking? Whether plaintiffs enjoy the benefits of System 1 depends on how the case is framed.¹¹

Defendants try to muddy the waters during trial. They make the evidence confusing to distract jurors from the plaintiff’s case. The effect is to overburden the jurors’ ability to process the evidence. Kahneman and Tversky described the mental shortcuts that people use in judgment and decision-making as heuristics and biases.¹² When people have limited energy to think, they may not make good choices.¹³ Reliance on mental shortcuts is likely.

People trying to assimilate a lot of complex information may be more inclined to jump to conclusions. They also may make emotional choices. This is System 1 in action. System 1 eases a juror’s thinking burden and lessens the mental effort jurors need to build a narrative. Thinking by shortcuts simplifies a juror’s task.

Using mental shortcuts. Trial lawyers should accept this truth and use ­System 1 wisely to provide jurors with case-thinking­ shortcuts. In so doing, the lawyer becomes a choice architect.¹⁴ Choosing the order of the evidence, framing the claims for relief using a decoy claim,¹⁵ selecting a case frame, and constructing a narrative that confirms the jurors’ worldview are all choice architecture.

Everything a trial lawyer does creates choices for jurors. The choice map provides jurors with a series of unconscious choices.¹⁶ System 1 shortcuts nudge jurors to make the right choices. The map focuses juror attention on the winning evidence and provides jurors direction in building a coherent narrative—it frames the jurors’ decisions.

Kahneman and Tversky discovered several cognitive shortcuts people use to navigate the world, including representativeness, availability, and anchoring. Each case has many facts that jurors will also use as shortcuts. Together, these two sources of shortcuts are important for lawyers.

For example, the narrative may emphasize one aspect of the defendant’s behavior over others, such as behavior that leads to an inference that the defendant acted in a self-interested manner. Jurors may infer that a doctor who chooses not to make post-operative visits is uncaring. The doctor may have had others do those visits for him, but jurors still may think it was the doctor’s job to see the patient in the post-operative period. Jurors may use the physician’s decision not to see his patient as a mental shortcut that defines the doctor’s character. Shortcuts can serve as a character stain. They also can explain a defendant’s intentions.¹⁷

Jurors want to know the defendant’s motivation. All narratives address the reasons for actions, and trials are no different. The defendant’s conscious self-interested decisions are central to the narrative. Framing the narrative in this way makes the harm the foreseeable result of an intentional self-serving act.

Frame the story using shortcuts. Give jurors the perceptual lens through which to evaluate the defendant. What jurors pay attention to has a huge impact on decision-making. Focusing jurors on evidence that biases judgment is an efficient use of availability bias—using System 1 to help jurors understand the evidence.

Which perceptual lens shows the defendant violated a norm? Jurors look for patterns to categorize the defendant’s conduct, relying on personal experiences and social norms: Did the defendant conform to the norm? Did the defendant fit the juror’s model of the world? Did the defendant violate a stereotype? Did the defendant violate expectations? These questions are easier to answer than, is the defendant negligent?

The schemas¹⁸ or prototypes jurors use to evaluate the defendant come with rules for how a person in the defendant’s situation should act. In a medical negligence case, for example, jurors may ask: Is this how a conscientious doctor acts? Did the doctor act like the prototype physician? Did the doctor behave differently from my doctor? Was the doctor hurried, thorough, empathic, respectful, or uncaring?

Evidence that answers these kinds of questions drives juror decision-making. Shortcuts allow jurors to make quick inferences about what kind of person the defendant is. Social psychologist Lee Ross described the attribution of a person’s conduct to character or disposition as the fundamental attribution error.¹⁹

Jurors compare the defendant to the category of negligent doctors. Jurors judge negligence to be likely if a similarity exists. While it is hard to judge whether a defendant breached a standard of care, people know what qualities they prefer in a physician,²⁰ and knowing whether the conduct feels familiar to past experiences with careful doctors is easy. Jurors prefer a simpler task that requires less effort. Kahneman and Tversky labeled judgments by similarity as the representative bias.

Pretrial jury research should include discovering which shortcuts lead to the creation of a winning narrative. Anything that simplifies a juror’s task and reduces fatigue helps. System 1 allows jurors to slice through the noise of a trial.

Systems 1 and 2 in Deliberations

I next asked Danny about System 1 during deliberations. Whether jurors use System 1 or 2 in deliberations depends on the amount of agreement among jurors, he said. He pointed out that “when people agree, deliberations make things worse. Everybody gets more confident in their beliefs. Also, when people agree they tend to become more polarized and more extreme.” He added, “When people disagree, especially when there is a requirement” for achieving unanimity, jurors will use System 2. If jurors have to convince others, the task of convincing requires the use of System 2.

Jurors also must think about how their “arguments are going to sound to somebody else,” he explained. So “there is a lot of self-criticism” involved. Danny believes that  System 2 has an influence on deliberations. This assumes the “jury does not come into the jury room with a shared opinion.”

There are two important points about Danny’s thoughts on deliberations. First, if jurors begin deliberations in agreement, they will use System 1—and it will cause jurors to become more confident in their beliefs, create more polarization, and cause attitudes to become more extreme. Kahneman and his colleagues demonstrated this in their work on punitive damages.²¹

Second, deliberations can cause a severity shift. The jury together may award a greater sum than the median individual juror award. Deliberations may produce an award exceeding the highest amount of any individual juror award, and a jury’s judgment can become more extreme than any single juror’s judgment.

Jurors may change their attitudes to conform to the leader’s position, which can cause jurors’ positions to become more extreme. This can produce a riskier decision, and one dominant juror can lead to a riskier decision in the form of a defense verdict.²² The severity shift can occur even if other jurors begin in the plaintiff’s corner.

Think about which jurors are likely to exert considerable influence on the group. An adverse attitude and leadership traits are a dangerous combination in a juror. Anticipating a severity shift during jury selection is a hard and important lesson to learn, so carefully consider the composition of the jury as a whole and who will emerge as leaders.

One big insight from my conversation with Danny is the significance of System 2 in deliberations. Jurors use System 1 to create the trial narrative. System 2 arguments can confirm that the System 1 narrative is correct²³ and vest jurors with feelings of legitimacy for the ultimate judgment. A belief that the verdict is the result of careful thought and deliberation is essential. These feelings confirm the value of jury service and reinforce the notion that the juror was right all along.²⁴

Burden of Proof

I asked Danny about the influence of the burden of proof instruction. He pointed out that I was asking an empirical question—only research could provide the answer. He added that jurors construct a narrative and then search for evidence consistent with their narrative. The process of creating a narrative drives the juror “to believe in [his or her] conclusion.” Jurors “create a coherent story around [their] conclusion.” He described this as a “self-reinforcing process.” The order that people receive information influences decision-making. People do not recognize the influence of such factors, he emphasized, preferring to instead believe that they are free of such influences.

People are overconfident in their judgments. They are not conscious of what determines their behavior. Jurors use System 1 to decide what happened, but this is unconscious and automatic—they are not aware of applying the burden of proof. Danny explained, “Whether the instructions are important is in the deliberation.” The burden of proof instruction may not mean much to individual jurors. In deliberations, the instructions may play a meaningful role. If a juror says something and someone else says, ‘Are you sure,’ the juror can rely on the instruction and say, ‘I don’t have to be sure.’ Danny thinks the debate about the burden of proof instruction can play a significant role. “My guess is it could be influential when there is disagreement. When there is disagreement, people look for ways of adjudicating the disagreement, and the burden of proof becomes relevant,” he said.

A juror creates a cause-and-effect narrative: This is what happened, and this is the cause. It is all unconscious, and the burden of proof plays no part. Jurors are either certain or uncertain. Certainty can be the consequence of a decision and not the reason for a decision: The narrative confirms what jurors want to believe.²⁵

In deliberations, the cause-and-effect narrative can be challenged. If there is disagreement, a juror may be forced to defend the narrative. Pretrial research should identify the winning narrative with clarity, revealing the System 1 strategies to develop the winning narrative and the System 2 arguments that support the narrative as well as how persuasive those arguments are.

Jurors use Systems 1 and 2 throughout trial. Teaching jurors how to defend their System 1 judgment and decisions with System 2 arguments is essential. Jurors have a gut feeling about what caused the harm, although they may be unable to articulate the reasons behind that conclusion. But if someone challenges their causation narrative during deliberations, they may not be able to defend their judgment.

It’s important for lawyers to teach jurors during closing argument how to persuade unconvinced jurors with System 2 reasoning because these arguments make it more likely that the System 1 narrative will survive deliberations. Discussing alternative scenarios that may occur during deliberations is a helpful teaching tool. If a juror asks you why you believe X caused Y, give him or her the reasons that support that conclusion. These are System 2 arguments that justify System 1 intuitions.

After jurors reach a decision, they rationalize it. The burden of proof instruction can help jurors justify their decision. There is an emotional component to the burden of proof. Does a juror feel certain about his or her decision? Feelings of certainty fuel the narrative. The consequence of a decision can drive feelings of certainty. If jurors are happy with his or her decision, they believe the burden was satisfied. Confidence in the decision persuades jurors that they applied the instruction correctly. Feeling confident is a System 1 process. The burden of proof instruction validates the System 1 narrative.

One study showed the burden of proof had little impact.²⁶ Jurors did not incorporate the burden into their judgments. In theory, the higher the burden, the more probable it is that jurors will find for the defendant. But whichever standard of proof jurors applied had little impact on their decision-making.²⁷

The burden may not be relevant to juror decision-making, but Danny pointed out that it may be very significant for jury decision-making. Jurors use System 1 to create a narrative. Jurors use System 2 during deliberations if there is disagreement. Be mindful of this point, especially in closing argument.

Inadmissible Evidence

I asked Danny whether jurors, once exposed to evidence, can avoid its influence. It was impossible, he said, once jurors heard or saw it.²⁸ He said that we understand the individual juror, but a jury is different. There is more System 2 use with juries than with jurors, he added. A juror may remind fellow jurors that they are not supposed to consider certain evidence. A jury may be more capable of avoiding the influence of inadmissible evidence than an individual juror, according to Danny.

One concern about instructing jurors to disregard evidence is that it may create reactance.²⁹ Reactance can occur when a person’s freedom of thought is threatened. A ruling to disregard evidence may cause people to assert their independence and disregard the ruling—or even cause the ruling to backfire and lead jurors to overweight the evidence in their judgments.³⁰

Trials are long: Jurors may not recall that the judge instructed them to disregard certain evidence. And jurors may be unaware that they even used the evidence in forming their narrative: They may not be conscious of how the excluded evidence altered their narrative, and therefore, they unconsciously consider it anyway. Most courts provide a jury instruction to ignore any evidence that was ruled inadmissible.³¹

It may be advantageous to use System 2 to address the System 1 effects of inadmissible evidence. Anchoring the inadmissible evidence with the instruction, for example, can help. The inadmissible evidence will trigger the instruction later. Anchoring the inadmissible evidence to the jury instruction will help jurors remember during deliberations that the evidence should not be considered. A System 1 thinking tool is used to prevent misuse of inadmissible proof.

System 2 arguments can reduce the fallibility of System 1. A lawyer can remind the jurors that the judge instructed them not to consider the evidence and tell them that in deliberations, should this evidence be raised, to remind others of the instruction. Failing to address prejudicial evidence that jurors heard and the court excluded is risky—the danger is that jurors raise the evidence in deliberations, but it has not been anchored to the instruction not to consider it.

For example, in closing argument, a defense lawyer argued that it would take years for the defendant doctor to pay the amount the plaintiff requested in closing. He claimed that even if the doctor worked the rest of his life, he could never pay that amount. The judge sustained an objection, and the jury was instructed to disregard the argument. In rebuttal, the plaintiff attorney tied the defense argument to the jury instruction. The plaintiff attorney also re-anchored the amount by repeating it in rebuttal. Lawyers raise improper arguments because they can be persuasive. System 1 and 2 tools can combat the effects of improper arguments.

One study examined whether judges could avoid the effects of inadmissible evidence—a plaintiff’s 14-year-old criminal conviction for swindling some elderly people out of their life savings.³² Researchers told the judges they were presiding over a bench trial involving a 35-year-old automobile mechanic who suffered a serious injury to his arm when a lawnmower kill switch malfunctioned. The only issue to be decided was the amount of damages to award for pain and suffering.³³

Researchers asked one group of judges to rule on the admissibility of the plaintiff’s criminal conviction. The study showed that the conviction evidence caused judges to reduce the amount awarded for pain and suffering. Judges not exposed to the evidence awarded a greater sum.³⁴ As experts trained in the law, who know it is improper to allow inadmissible evidence to bias their judgment, it is remarkable that the judges were unable to eliminate the impact of the criminal conviction. It is difficult, then, to expect jurors to ignore inadmissible evidence once exposed—this human fallibility holds true even when people recognize their responsibility to resist it.

Opening Statements

I was interested in Danny’s thoughts about opening statements. He thought that jurors expected openings to be biased. Jurors’ interpretation of the opening depends on whether it “feels biased.” Jurors can resist the impact of opening statements if they feel the lawyer is lying to them. The key to a successful opening, he felt, is the lawyer’s “credibility and trustworthiness.” Danny pointed out that the opening must be credible at the System 1 level.

The Jury Bias Model encouraged lawyers to build the case from the bottom up, which means framing the case around what jurors already believe. To do so, lawyers must discover juror intuition about the case. The opening should confirm what jurors believe about the parties and the world—a story consistent with the jurors’ life experiences and concept of normative ideals.

The representative and confirmation biases help jurors assess whether the opening fits their model of the world. If it does, the lawyer is telling a credible story. If it doesn’t, the lawyer loses credibility.³⁵ Surveys, focus groups, and in-depth interviews can help attorneys discover how to establish credibility with jurors.³⁶

Danny was reluctant to acknowledge that his work is useful for trial lawyers. He was unaware of the impact his work has had on the profession. It is not a scientist’s role to advise lawyers on the creative use of psychological science in the courtroom. Lawyers are the ones with courtroom and litigation experience, and it is every lawyer’s obligation to take the tools psychological scientists have discovered and transform them into the art of trial advocacy.

Editor’s Note:
More on the author’s conversation with Kahneman will be published in part two later this year.

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David A. Wenner is a partner at Snyder & Wenner in Phoenix. He can be reached at david@jurybias.com.

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Notes

1. See Michael Lewis, The Undoing Project: A Friendship that Changed Our Minds (2016). Lewis has written an engaging and moving biography of Kahneman and Tversky that is well worth reading.
2. See Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions About Health, Wealth, and Happiness (2008).
3. The empirical part of the model was derived from observing mock jurors deliberate throughout the nation. Greg and I refer to the first part of the model as “empirical” because it reflects the attitudes and beliefs that jurors used to view the evidence. It included anti-plaintiff attitudes that jurors use in judging plaintiffs. The five attitudes we observed are: suspicion, victimization, personal responsibility, stuff happens, and focus on the plaintiff. Greg labeled these “untried issues.” They are woven into the fabric of the case and impact juror judgment. The model discussed how to reduce the effect of these biases.
4. The second part of the model was labeled “prescriptive” because we were advocating (or prescribing) that trial lawyers use the model’s psychological principles to approach persuasion in every case. 
5. These heuristics taught lawyers how to use thinking shortcuts jurors use to build a winning narrative. The trial story bias teaches how jurors construct a coherent narrative to understand the case. The representative bias is how jurors use unconscious reasoning by representativeness or similarity. The confirmation bias demonstrates that jurors prefer evidence that confirms what they wish or need to believe about the world. Belief perseverance bias refers to the tendency for jurors to cling to their narrative even in the face of discrediting evidence. We showed, consistent with Ross and others, that conflicting evidence or discrediting evidence strengthens the juror’s belief in the narrative. The availability bias shows how focusing juror attention on particular evidence can cause jurors to overweight that evidence. Jurors may overestimate the probability of an event occurring, based on how easily the event comes to mind or is available in memory. Norm bias refers to how jurors identify the cause of an injury by eliminating the surprising, unusual, or counternormative fact in the story to evaluate whether the eliminated fact prevents the injury. The empathy bias shows how evoking empathy for the plaintiff encourages altruism. Anchoring bias refers to how the use of a number or concept as a reference point influences subsequent judgments. 
6. Framing has many definitions. Robert Entman says, “Framing essentially involves selection and salience. To frame is to select some aspects of a perceived reality and make them more salient in a communicating text, in such a way as to promote a particular problem definition, causal interpretation, moral evaluation, and/or treatment recommendation for the item described.” Robert M. Entman, Framing: Toward Clarification of a Fractured Paradigm, 43 J. Comm. 51, 52 (1993). Focusing attention, labeling, staining, loss aversion, and order of evidence are examples of framing. The Jury Bias Model used framing in the damages request. Part two of this article has examples of framing in trial practice. See Mark Mandell, Case Framing (2015). 
7. Many fine lawyers helped translate the science into practice, including Mark Mandell, Jim Lees, Howard Nations, Lisa Blue, Amato DeLuca, David Bossart, and Jerry O’Neill. Prof. Lee Ross, Prof. Valerie Hans, and Prof. Neal Feigenson also were kind enough to share their knowledge and guidance. 
8. Quotation marks throughout this article indicate direct quotes from Kahneman.
9. Daniel Kahneman & Shane Frederick, Representativeness Revisited: Attribute Substitution in Intuitive Judgment, in Heuristics and Biases: The Psychology of Intuitive Judgment 49 (Thomas Gilovich, Dale Griffin & Daniel Kahneman eds., 2002); see also Daniel T. Gilbert, What the Mind’s Not, in Dual-Process Theories in Social Psychology 3 (Shelly Chaiken & Yaacov Trope eds., 1999); Keith E. Stanovich, Who Is Rational?: Studies of Individual Differences in Reasoning (1999); Steven A. Sloman, The Empirical Case for Two Systems of Reasoning, 119 Psychol. Bull. 3 (1996).
10. Susan T. Fiske & Shelley E. Taylor, Social Cognition: From Brains to Culture (3d ed. 2017); Daniel Kahneman, Thinking, Fast and Slow (2011); Stanovich, supra note 9.
11. Mandell, supra note 6. 
12. Amos Tversky & Daniel Kahneman, Judgment Under Uncertainty: Heuristics and Biases, 185 Sci. 1124 (1974).
13. See Baba Shiv & Alexander Fedorikhin, Heart and Mind in Conflict: The Interplay of Affect and Cognition in Consumer Decision Making, 26 J. Consumer Res. 278 (1999).
14. For a detailed discussion of choice architecture in other domains, see Thaler & Sunstein, supra note 2.
15. Adding a second or third claim can increase the probability of jurors choosing the superior claim. A third-party candidate in an election is an example of a decoy. See Dan Ariely, Predictably Irrational: The Hidden Forces That Shape Our Decisions (rev. ed. 2010); Joel Huber et al., Adding Asymmetrically Dominated Alternatives: Violations of Regularity and the Similarity Hypothesis, 9 J. Consumer Res. 90 (1982).
16. A choice map is also created that outlines the defendant’s choices that lead to the harm. This choice map shows the series of decisions that made it foreseeable that a preventable harm would occur.
17. See Jerome Bruner, Actual Minds, Possible Worlds 16–17 (1986) (Bruner’s famous quote: “Narrative deals with the vicissitudes of human intention.”).
18. Richard E. Nisbett, Mindware: Tools for Smart Thinking (2015).
19. See Lee Ross, The Intuitive Psychologist and His Shortcomings: Distortions in the Attribution Process, in 10 Advances in Experimental Social Psychology 173 (Leonard. Berkowitz ed., 1977); see also Thomas Gilovich & Lee Ross, The Wisest One in the Room: How You Can Benefit from Social Psychology’s Most Powerful Insights (2015).
20. See Neeli M. Bendapudi et al., Patients’ Perspectives on Ideal Physician Behaviors, 81 Mayo Clinic Proceedings 338 (2006).
21. See David Schkade, Cass R. Sunstein & Daniel Kahnemen, Deliberating about Dollars: The Severity Shift, 100 Colum. L. Rev. 1139 (2000).
22. In a group setting such as jury, there is a diffusion of responsibility. Groups are more willing to make riskier decisions than an individual. An individual juror feels it’s too risky to take an extreme position. This phenomenon can help or hurt plaintiffs. A defense verdict may be an extreme position because the evidence justifies a plaintiff’s verdict. A single leader juror can cause the jury to reach a defense verdict. It can lead to higher verdict amounts, too.
23. For instance, jurors may have adopted a case frame that the defendant did not do his job. This is a System 1 judgment that is the product of the representative heuristic. The unconscious judgment is the result of juror life experience and conceptions of ideal behavior in the setting. See Adam Bear & Joshua Knobe, Normality: Part Descriptive, Part Prescriptive, Cognition (2016). Scientific and other evidence reinforces the System 1 case frame that the defendant did not do his job. See Mandell, supra note 6.
24. See Leah Sprain & John Gastil, What Does It Mean to Deliberate? An Interpretative Account of Jurors’ Expressed Deliberative Rules and Premises, 61 Comm. Q. 151 (2013).
25. Anthony Bastardi, Eric Luis Uhlmann & Lee Ross, Wishful Thinking: Belief, Desire, and the Motivated Evaluation of Scientific Evidence, 22 Psychol. Sci. 731 (2011).
26. William Douglas Woody & Edie Greene, Jurors’ Use of Standards of Proof in Decisions about Punitive Damages, 30 Behav. Sci. & Law 856 (2012).
27. Id.
28. There is an excellent article about the impact of inadmissible evidence, which summarizes the challenge of ignoring evidence after exposure: Andrew J. Wistrich, Chris Guthrie & Jeffrey J. Rachlinski, Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding, 153 U. Pa. L. Rev. 1251 (2005).
29. See Jack W. Brehm, A Theory of Psychological Reactance (1966).
30. Dale W. Broeder, The University of Chicago Jury Project, 38 Neb. L. Rev. 744 (1959); see also Alison Cook, Jamie Arndt & Joel D. Lieberman, Firing Back at the Backfire Effect: The Influence of Mortality Salience and Nullification Beliefs on Reactions to Inadmissible Evidence, 28 Law & Hum. Behav. 389 (2004).
31. See, e.g., Revised Ariz. Jury Instr. (Civil) Prelim. 4 (5th ed. 2015).
32. Wistrich, Guthrie & Rachlinski, supra note 28, at 1305–06.
33. Id.
34. Id. at 1306–08.
35. Kahneman recommended some work that would help lawyers learn to establish credibility. He suggested I investigate the research on believability. One expert he referenced was University of California, Berkeley, social psychologist Dacher Keltner: socrates.berkeley.edu/~keltner/people.htm.
36. See generally Dennis J. Devine, Jury Decision Making: The State of the Science (2012); Neal Feigenson, The Rhetoric of Torts: Legal Blame: How Jurors Think and Talk About Accidents (2000).