.webp)
Cognitive biases are mental shortcuts used in human decision making that we’ve all fallen victim to at one time or another. Your jury is no exception. Shari Belitz, CEO / Founder of Shari Belitz Communications LLC, shares how to spot these biases and the impact they have on litigation.
To learn more about each type of bias Shari describes in the conversation below, read her recent blog post.
Why lawyers should care about social psychology
Social psychology guides decision-making and behavior. Plaintiff lawyers already get it: you use anchoring, reptile theory, and you’ve seen verdicts skyrocket as a result.
On the defense side, it’s equally important to understand these biases so you can mitigate them. I’m neutral here. I want everyone to understand how to either harness or defend against cognitive biases.
I’ll share a quick example of a plaintiff lawyer in California who visits his injured clients to do “day in the life” stories. That’s powerful. That’s harnessing social psychology.
What are cognitive biases?
Cognitive biases are like gossipy friends feeding your brain juicy but wrong information. They’re mental shortcuts—heuristics—that help us process a chaotic world quickly but often inaccurately.
It’s intuitive rather than logical thinking. These biases are normal and widespread and seen in law, medicine, and politics. Your brain fills in gaps when it lacks information, often based on past experiences or recent exposure.
Biases in the courtroom
In my blog post, I discussed a key bias: availability bias.
Example: Elevator vs. taxi
In August 2019, a man was crushed to death by an elevator in NYC. The story dominated headlines. People were terrified to ride elevators, even though statistically, they were far more likely to get hit by a taxi or a bike.
That’s availability bias at work: something recent, shocking, or catastrophic sticks in the brain and influences decision-making.
For plaintiff lawyers
Use this to arouse fear or anger in the jury. Frame your case as a danger to the community. Tie it into reptile theory: show a safety rule was broken, danger was caused, and it could happen to anyone.
For defense lawyers
Make the case an isolated incident. Show statistics, expert testimony, and graphics to prove this wasn’t systemic. Take responsibility (not the same as liability) to diffuse the anger.
Confirmation bias: Falling in love with your case
This is the most common and dangerous bias for lawyers (and also the easiest to fix).
Everyone has it. You start building your case and, over time, you become emotionally attached. You believe your own arguments and dismiss opposing ones. But this can cloud judgment.
It’s especially dangerous in cases with horrific damages but questionable liability. Defense attorneys, for example, may fall in love with security footage and overlook the emotional impact of a young victim’s story.
How to fix it
Run mock trials—or even just argue the other side of the case with a colleague. You’ll learn more about your weaknesses and their strengths. Play devil’s advocate to your own arguments.
Overlapping biases
Biases are layered. For example, choice-supportive bias, when you feel good about your decisions despite their flaws, often coexists with confirmation bias.
In the absence of clear information, we fall back on flawed mental models. Algorithms on social media reinforce confirmation bias, showing us only content we agree with.
We live in echo chambers. But listening to opposing views helps you understand yourself and your argument better.
Spotting bias in jury selection
The biggest bias in voir dire is social desirability bias. Jurors want to appear good and fair. This makes it hard to get honest answers.
Tips for voir dire:
- Normalize bias. Give silly examples to break the ice (e.g., “I can’t be fair in a case about the Yankees…”).
- Participate yourself. Raise your hand. Show jurors it's okay to admit bias.
- Use hedge words. Avoid absolutes like “Can you be fair?” Instead ask, “Would you have some difficulty?” or “Could you easily set that aside?”
- Avoid ability questions. Don’t ask if they have the ability to be fair—ask about degrees of difficulty instead.
What if you don't believe in your case?
If a plaintiff’s attorney doesn’t believe in their case, can they still be effective?
Yes. You’re an advocate. Even if a case isn’t strong, you can still zealously represent your client. But you must be objective. Recognize when early resolution is better than trial.
Final thoughts on biases
There are many cognitive biases: recency bias, clustering illusion, gambler’s fallacy, groupthink, bandwagon effect. And we use them all the time—often without realizing it.
For example, a defense team might rely on a “lucky” expert without analyzing why previous verdicts went their way. That's the gambler's fallacy and confirmation bias combined.
Recommended resources:
