Sandra Day O'Connor Award Presented to Candice Pierce

Sandra Day O'Connor Award Candice Pierce

The Sandra Day O’Connor Award

is given in honor of retired and first female Justice of the U.S. Supreme Court, Sandra Day O’Connor, who in retirement made it her mission to highlight and facilitate the importance of legal civics education. The award is made to the person who has significantly advanced the teaching of the 1921 Tulsa Race Massacre Curriculum in Tulsa County schools and this year’s recipient is Candice Pierce. class hosted by the 1921 Tulsa Race Riot Commission. Upon learning and then incorporating the curriculum into her coursework back in 2018, Thoreau students and she had extensive discussions about the definition of a riot vs. massacre. She and students lobbied Senator Kevin Matthews about changing the name from Race Riot to Massacre and invited him to come to Thoreau to discuss the legislative efforts he was pursued about the name change. As part of Mrs. Pierce’s curriculum on the race massacre, a field trip to the John Hopkins reconciliation park is included.

Mrs. Pierce is the 7th grade language arts and social studies teacher at Thoreau Academy in Tulsa. She started her journey of learning about the then called Race Riot by attending the professional development Thank you to Mrs. Candice Pierce for highlighting, educating, and facilitating important discussions around the massacre.

Thank you to our volunteers for making the First Responder Will Project a huge success!

Together we were able to assist 92 individuals with their estate planning, including simple wills, health directives and basic Power of Attorney documents.

Brittany Littleton Zac Hargis Madison Cataudella Randall Gill Randi Gill Kimberly Vojvoda Coy Coffman Emily R. Turner Gary Crews Karen Wilkins Robert Farris Julie Evans Kimberly Moore Stephanie Jackson Tim Studebaker

Application of Cognitive Biases as Persuasion Tactics in the Legal System

By Pansy Moore-Shrier, Esq.

An aspect of ensuring that our justice system provides fair results involves the idea that decision makers make reasoned, rational decisions. We may not always agree with the decision, but we rely on the premise that the decision maker is engaging in rational decision-making behavior. What if, however, there are ways to cause a decision maker to make an irrational decision using scientifically proven methods? What if your opposing counsel knows these methods, and you do not? Is it fair to use these methods to persuade when these methods cause an irrational decision?

For purposes of this article, a decision maker is anyone making a decision in the litigation process. Obviously, a judge or a jury deciding at trial is a decision maker, but a judge making a ruling on any motion is also a decision maker. While a mediator does not make decisions in the litigation process, the mediator plays a role in the process of resolving the litigation and should be considered in the context of the issues discussed in this article. Finally, clients are also decision makers via settlement options or sentencing offers. For the sake of brevity, throughout this article decision makers will be defined as “DM.”

In 2009, David Ball and Don C. Keenan’s book, Reptile: The 2009 Manual of the Plaintiff’s Revolution, started a trend around the country by teaching plaintiff attorneys in personal injury and product liability cases to advocate using the “Reptile Theory.” This theory strategized that plaintiff attorneys should focus the DM on viewing the defendant’s conduct as impacting the DM’s own personal safety and the safety of their families and communities. This theory has been credited for resulting in billions of dollars in increased verdict amounts. Understandably, defense attorneys began to argue that Reptile Theory arguments should be disallowed and proceeded to file motions in limine addressing the theory and, at times, requesting mistrials. Reptile Theory is merely one example of a tactic used to persuade a DM.

The field of behavioral economics studies the impact of cognitive biases in decision-making. Cognitive biases are defined as the systematic pattern of deviation from norm or rationality in judgment. Research has demonstrated that there are many, many cognitive biases that lead to irrational decisions. This article discusses three cognitive biases commonly implicated in the legal system. The impact of any one of these biases to any single case can be millions of dollars. Until the legal community determines the ethics of using cognitive biases as persuasion tactics, attorneys must be aware of their existence and understand how they are used to impact decisions.

Anchoring.

Anchoring bias was first described by psychologists Amos Tversky and Daniel Kahneman in the 1970s. The idea of anchoring is that, when making a decision based upon estimates or predictions, an individual will have an initial starting point and then adjust from there. What Tversky and Kahneman proved was that a person’s judgment was skewed by providing a number to the DM, even if that number was random. Even when the provided number had no relation to the decision to be made, it still impacted the decision.

An experiment performed by Tversky and Kahneman demonstrates the application of this bias. In the study, the researchers spun a wheel of fortune, and students were asked to write down the number on which the wheel stopped. The wheel, however, was rigged to stop at either 65 or 10. After the students wrote down the number, the researchers asked the participants two questions: Is the percentage of African nations among UN members larger or smaller than the number you just wrote? What is your best guess of the percentage of African nations in the UN? For the participants who saw 65 on the wheel, their estimated answer was 45%. For the participants who saw 10 on the wheel, their estimated answer was much lower—25%.

Anchoring bias and its impact have been extensively studied, and the impact on legal decisions can be significant. In a study to test the effects of anchoring on judicial decisions1, researchers presented the filing of a meritless motion to dismiss a federal court case arguing that the case did not meet the jurisdictional minimum amount for diversity of in excess of $75,000. One group of judges had no anchor—they did not have a motion to dismiss and were asked to determine only the amount of damages to award to the plaintiff. The other group had an anchor—$75,000. If the judges in the anchor group denied the meritless motion to dismiss, they were asked to then determine the amount of damages to award to the plaintiff. The no anchor group awarded an average of $1.25 million whereas the anchor group awarded an average of only $882,000. Thus, the anchoring bias— being anchored to the $75,000—resulted in a difference of $500,000 in the compensation award. Anchoring bias has also been found to impact sentencing in criminal cases.2

Misinformation Effect

This bias results from the tendency for memories to be heavily influenced by events that happen after the actual event itself. For example, in an experiment by

1 Guthrie, C., Rachlinski, J., & Wistrich, A. “Inside the Judicial Mind” (2001). Cornell Law Faculty Publications. Page 814.

2 Englich, B. & Mussweiler, T. “Sentencing Under Uncertainty: Anchoring effects in the Courtroom.” Journal of Applied Social Psychology, 31(7) (2001), 1535-1551. Elizabeth Loftus, Pd.D.,3 participants watched a video of a car crash and were then asked one of the following questions: How fast were the cars going when they hit each other? or How fast were the cars going when they smashed into each other? A week later, the viewers were asked whether they saw any broken glass. The viewers who were asked the “smashed” question were more likely to incorrectly report that they had seen broken glass. Again, the implication of this bias on the legal system is immense in it demonstrates that the words used when questioning a witness can actually change the witness’s recall of the event.

Framing.

Framing bias is the tendency for a DM’s decision to be swayed depending upon how information is presented. There are several ways in which framing bias may be presented, of which two are gains/losses and default options.

3 Loftus, E., & Palmer, J. “Reconstruction of Automobile Destruction: An Example of the Interaction between Language and Memory.” Journal of Verbal Learning and Verbal Behavior 13.5 (1974): 585-89.

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Framing as a gain or loss. To a DM, a loss is perceived as more significant than an equivalent gain. For example, when presenting the availability of a surgical option, participants were told either that 90% of the patients are alive after 5 years or 10% of patients are dead after 5 years. Even though the risks are equivalent, the framing bias results in more people accepting one option (90%) over the other (10%).4 The application of framing bias to decision-making must be kept in mind when offers or options are presented to clients to avoid unintentionally biasing a client into accepting a specific resolution. Further, in criminal proceedings, researchers have argued the framing bias implicates plea bargains. In pretrial detention, application of this bias increases a defendant’s willingness to plea bargain because the baseline for the decision is that the defendant is already imprisoned and, therefore, a plea bargain will allow an earlier release. Conversely, a defendant who is not detained pretrial is less likely to plea bargain. Framing as default. Another example of framing is setting default options because individuals are far less likely to opt out of a default decision. A prime example of this bias is options on organ donation. In countries

4 See, e.g., Tversky, A. & Kahneman, D. “The Framing of Decisions and the Psychology of Choice.” Science, New Series, Vol. 211, No. 4481. (Jan. 30, 1981), 453-458. where the default option for organ donation is that you opt-in, the participation in organ donation is much higher. In countries where individuals must decide to opt-in to participate in organ donation, the rates of participation are significantly lower. This type of framing is important when designing programs within the legal system because individuals are more likely to follow a default option.

Conclusion.

There are numerous cognitive biases that cause decision makers to make scientifically irrational decisions. Lawyers knowledgeable in cognitive biases can, and do, use these biases to persuade decision makers. While the ethics of using cognitive biases to obtain results can (and should) be debated, all lawyers should be familiar with the various cognitive biases implicating decision making in the legal system.

Pansy Moore-Shrier is an attorney at Moore-Shrier Law Firm. She also serves as the chairperson of the TCBA Technology committee, TU College of Law’s coach of the National Trial Competition team, and operates Two Goats Solutions, a company working to improve people’s access to the legal system.

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