Not Exactly Rocket Science fills us in on a recent Italian study revealing the unconscious decision-making of "undecided" voters:

Silvia Galdi at the University of Padova, Italy, has found evidence that the final verdicts of undecided decision-makers are only weakly related to their conscious preferences and more strongly influenced by unconscious views and biases they aren’t aware of. In many cases, when people claim that they are undecided, they have secretly made up our minds, unbeknownst even to themselves.

All the interviewees returned to repeat the tests one week later. Among those who were previously undecided about the base, Galdi found that their conscious beliefs had little bearing on their later choices. Instead, it was their unconscious biases that had the greater influence; they predicted which way the interviewees’ decisions would swing a week later, as well as any changes in direction in their conscious beliefs.

The tests show that the unconscious beliefs of these swing-voters were influential enough to sway their future decisions. Even though they said (and most probably believed) that they were undecided, they had to some extent already made up their minds.

People who had already made up their minds behaved differently. In their brains, unconscious associations held little sway and it was their conscious reasons that predicted their future choices. In fact, these reasons even predicted any changes in their unconscious associations – their beliefs were strong enough that over time, they eventually strengthened into a sort of mental reflex.

Perhaps most importantly, once the "undecided" voters had been pushed to a decision by their implicit biases, they cogently rationalized the decisions to themselves, essentially creating post hoc rationalizations for ideas long-decided for them.

As a trial lawyer you can read this simplistically as, "some jurors are just plain biased," but that’s far more common in criminal trials than civil trials. In civil trials, while jurors may lean one way or another, they don’t know you or the defendant from Adam, Eve or the Three Stooges.

Based on the above, there are only three things you must do:

  1. use voir dire to discover jurors with harmful implicit biases, and exclude them;
  2. put forth compelling arguments to arm favorable and undecided jurors in deliberations;
  3. disarm unfavorable and undecided jurors from relying on the defendant’s arguments.

Hopefully, you’ll end up with a largely unbiased jury that has the power to rationally decide in your favor and doesn’t have the ability to irrationally decide against you.