Part 3: Insights from the Persuasion Occasion Podcast with Perkins Coie Most trial lawyers understand confirmation bias in theory. Fewer know how to actually break it in real time—inside a courtroom, with a jury that has already made up its mind. That’s exactly where this next insight comes in. In my conversation with David Biderman and Jasmine Wetherell on the Persuasion Occasion podcast from Perkins Coie, we got into a technique that sounds counterintuitive at first… and then becomes hard to ignore. The Problem: Most Jurors Decide Early—and Stay There If you’ve tried cases, you’ve felt this. Jurors don’t wait until closing argument to decide. They decide early—often during opening statement—and then spend the rest of the trial doing something very human: They filter. They listen for what confirms their initial impression… and quietly dismiss what doesn’t. That’s confirmation bias, and it’s one of the most powerful forces in the courtroom. Once it locks in, persuasion becomes exponentially harder. The Counterintuitive Solution: Make Them Work Here’s where things get interesting. During the interview, I floated a technique I haven’t seen widely used—but I believe has enormous potential: If you want a juror to really process something… make it slightly harder to process. Not confusing. Not sloppy. Just enough friction to force engagement. I've included that video conversation below:
In Part 1, I explored a counterintuitive truth: fear often beats logic in the courtroom. That conversation—featuring litigators from Perkins Coie—pulled back the curtain on how juries actually process information, not how lawyers wish they did. But there was another idea in that discussion that may be even more important. And it’s one that the very best trial lawyers in the world quietly rely on: They strip their cases down to the bare essentials. The Dirty Secret of Great Trial Lawyers There’s a misconception that great lawyers win because they are more sophisticated, more detailed, more exhaustive. In reality, the opposite is often true. During the podcast, I referenced two of the most effective trial lawyers alive—Mark Lanier and David Boies—and what they do differently: They make cases almost impossibly simple. Not because they can’t explain the complexity. Understand the jury can’t absorb it. As I explained in that conversation: They take cases down to their basic elements… just what you need to know. They drop all the names, every extraneous piece of data. That’s not dumbing it down. That’s precision. Here’s a short clip from the podcast interview:
The other day, I did a simple experiment in a room full of lawyers from the Los Angeles Bar Association. Roughly 200 people. I showed a few slides in a row. Same layout. Same structure. Same visual rhythm. Same title. Then I showed a fourth slide. Same design. Except for one thing: There was a typo on it. A pretty obvious one. Then I asked the room: “How many of you noticed the typo?” About five hands went up. Five… out of two hundred. The uncomfortable truth It wasn’t that the audience wasn’t smart. It wasn’t that they weren’t paying attention. It’s that their brains had already decided what my slides were going to say—and stopped really looking or reading. That’s not a presentation problem. That’s a human cognition problem.
You might be waking up today to a world that looks like it’s been quietly buried in snow. Sidewalks vanish. Cars turn into white shapes. The usual landmarks of daily life—curbs, steps, driveways—are suddenly indistinct.
Cognitive biases are a natural part of being human, and jurors are not exempt from these biases when serving in a court of law. The impact of these biases on how jurors receive and interpret expert testimony cannot be underestimated, as it can ultimately shape the outcome of a trial.
Confirmation bias is a pervasive cognitive bias that affects individuals in all areas of life, including the court system. It is crucial to understand the nature and effects of confirmation bias in order to mitigate its impact on jury trials. By recognizing and addressing confirmation bias, we can work towards winning cases more predictively.
I notice something about audiences in the PowerPoint presentation era. They seem to get easily disengaged part of the way into a presentation. This tendency is especially problematic in a courtroom setting since judge and juror visual attention is critical for courtroom persuasion.
A fascinating new study in the field of social psychology indicates that the type font in which an argument is presented has an effect on how convincing it is. For trial graphics consultants and litigators alike, this is potentially very big news.
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