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2013] What Kahneman Means for Lawyers 1391
whole story, the sequencing of the testimony will be important. To the
extent it can be controlled, it must be. As usual, however, the lawyer
must be prepared to adjust to the circumstances as they unfold.
In other cases, plaintiff’s counsel may choose to call some of the key
defense witnesses as adverse witnesses in the plaintiff’s case-in-chief.
In that event, the first impression that the jury will have with respect to
those witnesses (and of the defendant with whom they are aligned) will
be the impression they make as adverse witnesses. The strength of first
impressions supplies another reason for careful witness preparation.
VIII. C
ONFIRMATORY BIAS
Closely related and equally important is the concept of confirmatory
bias, which describes System 1’s associative power. According to the
concept of confirmatory bias, the mind, as it unconsciously reacts to a
word or situation—e.g., Alan is intelligent—brings forth positive
images about Alan that encompass characteristics beyond those covered
by the statement itself; these too, are difficult to overcome.
38
One
lesson for lawyers is obvious: the lawyer who first gets to frame a
problem or situation has a strong advantage.
39
This factor also explains
why people generally have a favorable initial response to persons whom
they find to be physically attractive or intelligent.
The tendency to extrapolate from one or more positive (or negative)
characteristics, and to like (or dislike) everything about a person, has
been described as the “halo effect.”
40
Again, because of the System 1
38. Id. at 80–81, 324.
39. In a similar vein, David Brooks, a New York Times columnist and public intellectual, has
written, “In middle age, it was as a novelist that Tolstoy achieved his most lasting influence.
After all, description is prescription. If you can get people to see the world as you do, you have
unwittingly framed every subsequent choice.” David Brooks, Description is Prescription, N.Y.
TIMES, Nov. 25, 2010, at A37.
40. K
AHNEMAN, supra note 3, at 82–85. According to the “halo effect” theory, one is inclined
to attribute additional positive or negative characteristics to someone about whom one has formed
an initially positive or negative opinion. For example, as Professor Kahneman notes, one might
meet a person at a party and form a favorable impression of her. Later, when asked to
recommend persons who might be willing to contribute to a charity, you might recommend your
new acquaintance as a prospect, even though there was nothing in your contact with her on which
to base any opinion concerning her views on philanthropy. Id. at 82–83.
Several studies have corroborated the halo effect’s influence on juries. See, e.g., Barrett J.
Anderson, Note, Recognizing Character: A New Perspective on Character Evidence, 121 Y
ALE
L.J. 1912, 1935 (2012) (“[S]tudies have demonstrated that jury instructions do not provide a
satisfactory remedy when improper character evidence is presented to the jury. That fact strongly
suggests that the halo effect cannot be cured by informing people that they are likely to use
character proof wrongly.” (citing, inter alia, Amos Tversky & Daniel Kahneman, Judgment
Under Uncertainty, Heuristics and Biases, 185 S
CIENCE 1124, 1124–25 (1974))); H. Michael
Caldwell et al., The Art and Architecture of the Closing Argument, 76 T
UL. L. REV. 961, 983–84