Following adverse verdicts, it is common for defense attorneys and clients to place blame squarely on the jury. Statements such as “the jurors didn’t get it,” “young jurors don’t understand the value of a dollar,” or “the plaintiff attorney made them angry” are frequently heard after runaway damage awards. While some of these observations may contain elements of truth, they often overlook a more critical factor: Defense attorneys retain more control over who sits on the jury than they may realize.
Although the legal community widely acknowledges that trials can be won or lost during voir dire, many of the strategies currently used in jury selection lack psychological precision. Standard voir dire often relies on superficial profiling or overused questions aimed at revealing overt bias, while failing to engage the deeper cognitive patterns that shape juror decisionmaking. As a result, jurors frequently enter trial without the mental framework necessary to evaluate evidence rationally or resist emotionally persuasive arguments.
These shortcomings, however, are correctable—not through legal instinct alone, but also by integrating empirically supported psychological tools.
Overview of Key Psychological Theories
Voir dire provides a valuable opportunity for defense counsel to introduce subtle psychological strategies that can help frame how jurors perceive damages, compensation, and justice. By leveraging psychological insights, defense attorneys can prepare jurors to critically evaluate emotional appeals and maintain a rational perspective on damage awards. An exhaustive list of all the psychological principles that can be used by defense counsel in jury selection is outside the scope of this paper; however, we discuss four important ones that can be leveraged during voir dire.
Confirmation bias – Identifying jurors who form early impressions and subconsciously filter evidence to confirm those beliefs, making them less open to fair and impartial evaluation.
Inoculation theory – Exposing jurors to mild, yet strategic arguments against excessive damages to strengthen their resistance to plaintiff’s emotional persuasion techniques.
Pre-commitment effect – Encouraging jurors to verbally affirm their commitment to fair and proportional damage awards early in voir dire, making them more likely to adhere to these beliefs later.
Cognitive dissonance theory – Introducing jurors to concepts that create mental discomfort and hesitation with the idea of awarding excessive damages, compelling them to align their verdicts with rational principles.
The Role of Psychological Influence in Jury Selection
Jurors bring preexisting attitudes about lawsuits, insurance companies, corporations, attorneys, and plaintiffs into the courtroom. These biases are deeply ingrained and resistant to change. Beyond simply identifying admitted biases, disruptive voir dire provides an opportunity to shape jurors’ cognitive patterns while also influencing how they process information, interpret evidence, and evaluate arguments. Factors such as past experiences with litigation, exposure to media coverage of high-profile cases, inundation by billboards with large verdict amounts, and personal attitudes and belief systems all contribute to jurors’ decision-making process.
The way attorneys frame issues before trial begins can have a lasting impact on jurors’ perceptions. Proper framing can make jurors more skeptical of emotional appeals for excessive damages. By positioning fairness, proportionality, and economic consequences as key concerns, attorneys can guide jurors toward rational decision-making. However, voir dire questions like, “Can you listen to both sides before making a decision?” and, “Do you promise to follow the law?” will not cut it. By asking carefully crafted questions, attorneys can prime jurors to think critically about damages and minimize emotional decision-making.
Confirmation Bias: Powerful and Perilous
Confirmation bias is one of the most powerful and dangerous psychological forces in the courtroom. This bias operates below conscious awareness and gives people the illusion they are being fair and rational when in fact they are reinforcing their first impression.
From an evolutionary standpoint, confirmation bias likely developed as a cognitive shortcut, a fast and energy-efficient way to make decisions in uncertain environments. In high-risk situations, our ancestors benefited from acting quickly on instinct rather than constantly re-evaluating new evidence. They did not have time to test every belief or theory; they had to make quick judgments: “That rustle in the bushes = predator. Don’t overthink it.” But in the context of a trial, where the entire goal is objective deliberation, this shortcut becomes a major liability for the defense.
Jurors exposed to emotionally charged openings or sympathetic plaintiffs may experience a rapid internal verdict: “Someone must have done something wrong.” Once that belief forms, confirmation bias takes hold. Even as new evidence is presented, they unconsciously reinterpret it in a way that fits their original narrative and dismiss defense facts as exceptions, distractions, or irrelevant details.
This psychological pattern is a key reason defense attorneys must assess cognitive flexibility during voir dire. Practical voir dire questions can help identify jurors’ tendencies toward confirmation bias by asking them to reflect on moments when they changed their mind, especially after forming a strong initial impression. Jurors who struggle to provide an example, or who describe themselves as “decisive” or “instinct-driven,” may be more susceptible to confirmation bias and less likely to give the defense a fair evaluation.
Practical voir dire questions to identify confirmation bias:
• “Can you think of a time when you felt strongly about something, but changed your mind later after learning more?”
• “Have you ever realized your first impression of a situation or person was wrong? What helped you reevaluate it?”
• “If new evidence came out during trial that challenged your first reaction, how easy or hard would it be for you to shift your thinking?”
• “If jurors jump to conclusions quickly and only used their first impressions to make decisions, what are the potential consequences to the legal system and fairness of the process?”
Inoculation Theory: Strengthening Resistance to Excessive Damages
Inoculation theory, developed by social psychologist William McGuire, suggests that exposing individuals to a weakened form of an argument makes them more resistant to stronger persuasive attempts later. This psychological principle is similar to how vaccines work: By introducing a small, controlled dose of a virus, the immune system learns to recognize and fight off future, stronger infections. Likewise, when jurors are exposed to mild versions of the plaintiff’s arguments in voir dire, they develop mental defenses that help them resist emotional persuasion during trial. This psychological principle is based on the idea that when people are forewarned about a potential persuasive attack, they develop counterarguments that help them maintain their original stance.
In the courtroom, plaintiffs often use strong emotional appeals to persuade jurors to award excessive damages. By telling jurors, “This case is about justice for my client,” and, “You have an opportunity to send a message that resonates throughout the halls of Company X,” plaintiff attorneys are attempting to inject emotional appeals into their arguments. To counter this approach, defense attorneys can apply inoculation theory by exposing jurors to controlled, mild arguments about damages during voir dire. This exposure builds mental resistance against the plaintiff’s persuasion techniques. It can also “steal thunder” from the plaintiff attorney by preparing jurors for an excessive damages request. By putting jurors on notice that plaintiff counsel will be asking for a large award, jurors can begin considering the evidence early in the case through the lens of whether plaintiffs have met their burden of proof to justify such an exorbitant amount.
Practical voir dire questions to strengthen inoculation:
• “Have you ever heard about a lawsuit where the money damages paid to plaintiff seemed disproportionately high? What did you think?”
• “How do you feel about attorneys using the tactic of asking for extremely high amounts in damages, knowing that the final award is likely to be lower?”
• “Do you think it is fair for an attorney to demand double or triple the amount they actually expect to receive in order to influence the jury’s perception of what is reasonable?”
• “Imagine you are a juror in a case where the plaintiff asks for an amount of money that seems extremely high to you. How would you approach determining a fair and reasonable amount in deliberations?”
Pre-Commitment Effect: Encouraging Jurors to Commit to Fairness
The pre-commitment effect is a psychological principle stating that when individuals make an explicit commitment to a belief or action, they are more likely to follow through with that commitment later. (See “Procrastination, Deadlines, and Performance: Self-Control by Precommitment,” Psychological Science). This phenomenon is grounded in the theory of cognitive consistency, which posits that people experience discomfort when their actions contradict their prior commitments.
Examples of the pre-commitment effect can be seen in behavioral economics studies on topics such as weight loss and gambling. Research has shown that individuals who publicly commit to following a diet plan or setting limits on their gambling behaviors are more likely to achieve their goals. This is because making a verbal or written commitment strengthens accountability and increases internal pressure to remain consistent. Similarly, when jurors commit to fairness and proportionality during voir dire, they become more resistant to emotional persuasion during deliberations.
Defense attorneys can apply the pre-commitment effect in voir dire by encouraging jurors to verbally affirm their commitment to fairness, proportionality, and rational decision-making. Those who refuse or hesitate are strong candidates for cause or preemptory challenges. Once jurors declare these principles, they are more likely to adhere to them throughout deliberations, even when exposed to emotional appeals. To maximize this effect, defense counsel can remind jurors of their previous commitment during opening statements and closing arguments.
Practical voir dire questions to secure pre-commitments:
• “Would you agree that justice should be based on fairness and logic rather than emotion? Can you verbally commit to doing that if you are a juror on this case?”
• “Do you believe that damages should be proportional and not excessive? Can you verbally commit to maintaining that mindset if you are a juror on this case?”
• “Would you be open to ensuring that damages serve a fair and reasonable purpose rather than a punitive one? Can I have your verbal commitment to following through on this if you are selected to be on this jury?”
• “Would you agree that damages should be based on the actual harm suffered rather than emotions? Can you verbally commit to sticking to that?”
• “If you were serving on this jury, would you feel comfortable awarding damages based on logic rather than sympathy? Can you verbally commit to that stance, please?”
• “During deliberations, if a fellow juror refused to follow the law regarding how to award damages, would you speak up to get them back on track? What would that conversation look and sound like? Can you verbally commit that you’d keep others in check?”
Cognitive Dissonance Theory: Creating Internal Resistance to Excessive Awards
Cognitive dissonance theory, introduced by psychologist Leon Festinger, explains that individuals experience psychological discomfort when they hold two conflicting beliefs or when their actions contradict their stated values. To reduce this discomfort, they adjust their beliefs or behaviors to restore internal consistency.
A classic example of cognitive dissonance is seen in personal finance decisions. Many individuals believe in financial responsibility but still overspend on unnecessary purchases. This contradiction creates discomfort, leading them to either cut spending, justify the purchases as “needed,” or ignore financial warnings. Similarly, jurors who believe in fair compensation but recognize the harm of excessive damage awards can experience cognitive dissonance. This discomfort makes them more likely to carefully evaluate damages in a balanced and rational manner. Similar to the spending example, the goal is to psychologically prevent jurors from justifying a high award as “needed” despite what the law instructs.
During voir dire, defense attorneys can create cognitive dissonance by presenting jurors with competing beliefs about damages. By prompting jurors to consider the consequences of excessive damages—such as job losses, higher consumer costs, or harm to small businesses—attorneys can create discomfort in jurors who may otherwise be inclined to support large damage awards. Encouraging jurors to align their verdicts with rational, fair compensation helps them resolve this discomfort in a way that favors the defense.
Practical voir dire questions to induce cognitive dissonance:
• “If you feel torn during deliberations between what you want to do emotionally vs. what you should do based on the law, how will you decide on what is right?”
• “Do you believe excessive damage awards can sometimes have negative unintended consequences on society?”
• “Would you be comfortable knowing that a large verdict could lead to job losses or a company’s closure?” • “How would you feel if a damages award resulted in higher prices for everyday consumers?”
• “Can you see how an excessive award could hurt innocent third parties rather than just the defendant?”
• “In deliberations, if another juror wants to award excessive damages out of emotion, would you allow that or intervene? If you were to intervene, what would you say to that juror?”
• “In deliberations, if a fellow juror said, ‘The defendant is a large company and can afford to pay a lot,’ how would you respond to that juror?”
• “In deliberations, if a fellow juror said ‘$20 million is nothing… look how much professional athletes make,’ how would you respond to that juror?”
In an era of runaway verdicts and emotionally primed juries, voir dire can no longer function as a procedural checkbox. It must operate as a strategic and psychological intervention, deliberate and disruptive, designed to reshape juror thinking before bias locks in. Disruptive voir dire reframes jury selection not as a search for ideal jurors, but as a high-leverage moment to interrupt default patterns of emotion, assumption, and cognitive shortcutting. When defense attorneys adopt this approach, they do more than improve their odds of success. They take control of the only part of trial where persuasion is not yet constrained by the rules of evidence.
While the psychological strategies and voir dire questions discussed in this paper have been used effectively in a variety of jurisdictions, it is important to acknowledge that not all courts will respond to them uniformly. Some defense attorneys may hesitate to ask these types of questions out of concern that they could draw objections or judicial pushback. In our experience, many judges allow these questions when framed appropriately, and they often pass without challenge. However, some judges do sustain objections, and in certain venues, they may be viewed as pushing the boundaries of voir dire. As such, attorneys should use discretion, assess the temperament of the court, and be prepared to reframe or defend these questions if challenged.
Whether the case is being tried in state or federal court will also have an impact on an attorney’s ability to use this voir dire approach. For example, some federal judges may limit an attorney’s time for voir dire, and some may not even allow the attorney to ask any questions. In these situations, defense counsel must be prepared to pare down the number of questions needed to achieve the psychological goals outlined in this paper. Defense counsel must also be ready to reframe these questions if they must submit them to the judge for approval.
Despite these caveats, the key takeaway is that these are powerful, scientifically grounded tools that can shape juror cognition early in trial. However, their implementation must be tailored to the specific courtroom environment.
Voir dire is a critical phase in the trial process. Not only is it a chance for attorneys to identify “bad” jurors, but it is also an opportunity for attorneys to use psychological principles to shape how jurors process information. By understanding confirmation bias, inoculation theory, the pre-commitment effect, and cognitive dissonance theory, defense attorneys can stack the deck in favor of rational, fair decision-making, which can create an environment where excessive damages are less likely to be awarded.
About the Authors:
Bill Kanasky Jr., Ph.D., senior vice president; and Steve Wood, Ph.D., senior litigation consultant, are with Courtroom Sciences, Inc. bkanasky@ courtroomsciences.com; swood@ courtroomsciences.com