In part 1 of this topic, we discussed the concept of polarization and mortality salience and in part 2 we examined ingroup favoritism and outgroup bias. Today we focus on how crisis situations create an increased reliance on intuition, emotion, and heuristics in attitudes and decision-making.

Increased Reliance on Intuition, Emotion, and Heuristics

Psychological research and literature identifies two main information processing modes, or ways in which individuals attend to and process information to make decisions.[1] The first is the logical processing mode, which is sometimes referred to as the systematic or rational processing mode. Individuals in the logical processing mode are motivated to carefully analyze evidence and case facts to arrive at a rational conclusion. Logical processing takes time and patience, with the decision-maker more focused on details and facts rather than on their emotional responses or automatic judgments of others. The second information processing mechanism is the intuitive mode, which is sometimes referred to as the experiential or heuristic mode. Individuals in the intuitive processing mode are not able to carefully consider all evidence, testimony, and case facts; rather, they rely on their initial reactions, “gut instincts” and mental shortcuts to quickly reach a decision. 

Many individuals are inherently inclined to favor one processing mode over the other; some jurors are by nature logical processors, and others are intuitive processors. CSI Litigation Consultants always assess prospective jurors’ natural information processing mode during jury selection. However, there are many other situational and individual factors that determine whether a juror is likely to engage in a more logical or intuitive processing mode. These factors can shift a typical “intuitive” pro-plaintiff juror into the logical mode and a typical “logical” pro-defense juror into the intuitive mode.

Logical processing is most likely to occur when an individual is motivated to process information carefully; is not experiencing stress, uncertainty, or fear; and has the cognitive resources available for careful and systematic analysis. In the absence of such conditions, people are likely to engage in intuitive processing which is indeed the default processing mode. During and after the COVID-19 crisis, it is highly likely that most jurors will still be experiencing stress, uncertainty, and/or fear. In addition, their cognitive resources will likely be limited as they have been increasingly devoted to managing personal finances, home-schooling, concern for loved ones, etc. During this time, many individuals have reported difficulty concentrating in their work. This is undoubtedly due to stress and limitations on individuals’ cognitive resources due to the COVID-19 crisis. 

Ultimately, both psychological research and common sense point to an increased likelihood that jurors will follow the intuitive processing mode in the wake of the COVID-19 crisis. This, of course, can make jurors more susceptible to typical pro-plaintiff narratives. Jurors also may increasingly rely on heuristics, cognitive shortcuts, or “rules of thumb for reasoning” in their decision-making. For example, they may be more influenced by superficial, extra-legal factors such as witness attractiveness[2] and more prone to sympathy bias. Imagery and disturbing or highly emotional evidence and testimony is particularly influential when jurors are engaged in intuitive processing. Jurors also may be more likely to rely on heuristics such as the anchoring and adjustment heuristic when determining damages.

Jurors engaged in intuitive processing will make decisions more rapidly and be more inclined to “make up their minds” early in the trial despite instructions to the contrary. They also will be more motivated to reach a case conclusion. This motivation partly stems from the shift in processing mode, but also from a desire to reduce feelings of discomfort and uncertainty linked to the COVID-19 crisis. Jurors are not aware that their feelings related to the COVID-19 crisis are affecting their perceptions and decisions as jurors; they are simply motivated by minimizing feelings of discomfort and uncertainty regardless of their origins.

Even though jurors will have to wait to hear the defense case, counsel can tailor their approaches and tactics to appeal to intuitive information processors. Thorough and systematic refutations of the plaintiff’s allegations will not be effective in persuading jurors during and after the COVID-19 crisis. Instead, the defense must advance a simple, linear, and relatable pro-defense narrative that preferably highlights the conduct of the key parties and no more than 2-3 key defense themes. Primacy will be critical. If possible, the defense should advance their narrative and key themes during voir dire and should begin opening statements with their core message. The defense cannot afford to waste time during opening statements talking about themselves or their client in an attempt to build rapport, or in discussing complex evidence that 1) jurors are not cognitively or psychologically equipped to digest; and 2) may cause jurors to “tune out” and subsequently reject the defense’s entire case. Capitalizing on primacy effects will be more critical in reaching jurors impacted by the COVID-19 crisis compared to capitalizing on recency effects.

There are methods for priming logical processing among jurors. Although such a discussion is beyond the scope of this article, CSI Litigation Consultants work closely with trial teams in determining how to most effectively prime jurors and shift jurors’ processing modes in a way that is most comfortable for counsel given their unique styles and approaches.