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The Advantage Blog

  • Tsongas Litigation Consulting


With the recent evolution of social media, it is easier than ever to stay in touch with friends and family with whom we might have stopped interacting in the past. There are, of course, some pluses and minuses to this. Most people have that one uncle, or cousin, or brother-in-law, or friend from high school that holds a diametrically opposite position on political issues, making discussion somewhat awkward or frustrating. One solution to dealing with these people is to just ignore them. But many people cannot help themselves, and feel like if they provide enough information and argument to their contact they will see the error of their ways and change their opinion on an important issue.

Unfortunately, such a change is highly unlikely to happen. Once someone has made up their mind on an issue they see as salient, they are not likely to alter their opinion. It is not just that they are being stubborn; it goes as far as affecting their ability to do math when confronted with information counter to their political beliefs. A 2013 Yale study documented the finding that political beliefs get in the way of reasoning, including quantitative reasoning. The question asked in the study was, “Why does public conflict over societal risks persist in the face of compelling and widely accessible scientific evidence?” In other words, why do people continue to disagree when there is strong evidence supporting one side or the other? The conclusion of the study is that people will “use their quantitative-reasoning capacity selectively to conform their interpretation of the data to the result most consistent with their political outlooks.” People will find a way to interpret information in a manner that supports their political beliefs. Perhaps more interesting was the finding that people who are better at math are even more likely to twist the information than those who are not.

This finding should help inform attorneys’ decision-making in voir dire. There are some lawyers who believe that they will be able to persuade jurors who have preconceived opinions about a case to see their side of the issue by presenting the “irrefutable facts” that support their case.“ Once they see the facts,” the reasoning goes, “they will have no choice but to agree with my arguments.” This is simply not true. The juror will likely find a way to interpret the facts in a way that supports their perspective on the issue and the case.

It is better to discover those jurors with a particular bias and remove them from the jury. Of course, sometimes these people will impede their ability to be fair, and the judge will leave them on the panel. Counsel should be prepared to argue to the judge that despite the juror’s assurance to the contrary, strongly held beliefs cannot be set aside. They will unconsciously affect the person’s ability to analyze and interpret the facts of the case. Because judges often discount this concern (and sometimes the law sets a standard that requires them to leave jurors on who say they can be “fair”), the ability to exercise peremptory challenges becomes all the more important, a right that is being challenged here in Washington State as well as the U.S. Supreme Court.

Attorneys should exercise their challenges to remove those who hold opinions on issues that will conflict with the themes of their case, and until statutes recognize that preconceived biases cannot be ignored, the right to exercise such strikes should continue. And as for the friends and family members who refuse to accept the logic of facts on political controversies, a “peremptory strike” on these individuals by ignoring their messages (technologically or through one’s own selective viewing) is probably the best option.


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