Montana Lawyer June/July 2025

Shedding Juror Bias by Violating Expectations THOMAS M. O’TOOLE, PH.D & KEVIN R. BOULLY, PH.D JURY ECONOMICS

The Experience Machine: How Our Minds Predict and Shape Reality , by professor of cognitive philosophy Andy Clark, was recognized as one of the best social science books released in 2023. In it, Clark highlights the changing views of how our brain experiences and interpret the world around us, draw ing on extensive neuroscientific research to show us how our experiences of reality are quite different than what we tend to we think. For centuries, we have adopted an “objective ob server” view of our moment-to-moment experiences, taking in an objective world around us through our senses. Highlighting extensive research from the past decade, Clark explains how our brain operates much more efficiently than this “objec tive observer” view would require. Clark repeatedly cites the well-known finding that the brain uses 20% of our body’s energy despite only accounting for 2% of its weight. The brain requires a lot of energy and consequently, must find ways to be more efficient. Instead of an “objective observer,” the brain is a prediction machine that instead constantly projects its expecta tions and predictions on the world around it, only taking note when those expectations and predictions prove wrong. It is a much more efficient process because the brain only has to ex pend energy when expectations are violated. Consequently, he argues that much of the world we experience around us is our projection, while our actual interaction with objective reality is limited to the process of expectation adjustment. We are built for patterns and to recognize when and where a pattern breaks. It does not stop there. In a New York Times Magazine interview last year, Professor of Psychology and Neurosciences Charan Ranganath highlighted a similar process in memory. We often think of our memories as an objective snapshot of a past moment in time, but instead Ranganath explains how we are constantly modifying our memories over time to fit the needs of the moment within which we are recalling them. It’s why two friends or family members might remember the same situation totally differently from each other. A classic example is a lovable neighbor who ended up being a despicable criminal. Our contemporaneous moments with this neighbor raised no red flags because he was always nice and sociable, but after his

crimes become known with an arrest, we go back and modify those memories, identifying moments that we now, weeks, months, or years later, identify as “obvious indications” of his criminal personality, even though we did not see it that way at the time. This might all seem overly philosophical, but any litigator who has watched mock jurors discuss their case knows all too well that people bring their own baggage to any discussion, which significantly impacts how they perceive the issues at hand. A juror who has had a negative experience on the road with a truck driver might believe all truck drivers drive reck lessly, which directly influences their views of the evidence in a trucking accident case. It might even cause them to inject their own experiences and beliefs to fill information gaps in the case. Similarly, a juror who was laid off when their much-needed de partment (in their view) was needlessly eliminated to increase the company’s profitability is more likely to believe greed drives corporate decision-making in a case against a large corporate defendant. The examples are endless, and they come naturally to each and every one of us regardless of politics, religion, creed or otherwise. You might be wondering at this point why we chose to write about this topic now as it is arguably not a new insight to sug gest that jurors bring experiences and attitudes to the table that shape how they view the case. Many have written about this for decades. There are two reasons this topic should be revisited: 1) experiences and expectations are exerting greater influence on deliberations than ever before; and 2) many litigators have recently expressed frustration with how difficult it has gotten to shake jurors of the baggage they bring to the courtroom that leads them to adopt erroneous and/or highly prejudicial views of the facts in this case. Let’s take a moment to talk about the first reason, which largely drives the second reason. Experiences and expectations Experiences and expectations are exerting great er influence on deliberations than ever before.

73 RD ANNUAL

October 24-25, 2025

18 MONTANA LAWYER

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