Litigators are, by necessity, behavioral psychologists. We develop our strategies, arguments, and proofs based on assumptions and predictions about how human beings perceive things, conduct themselves, and make decisions. We try to anticipate how a judge will view various arguments, how members of a jury will respond to different witnesses and evidence, how a lay or expert witness will hold up under questioning, how the opposing counsel will likely approach his own case, and so on. Indeed, behavioral assumptions and predictions even shape the rules of the game, animating many of the principles of evidence and procedure that govern what we do. Consider, for example, the evidence rules that assume (perhaps wrongly) that people who are “knock, knock, knockin’ on heaven’s door” do not want to die with a lie on their lips (Fed. R. Evid. 804(b)(2)), or that perpetrators of sexual assaults have uniquely high recidivism rates (Fed. R. Evid. 413).
Despite our extensive reliance on behaviorally driven strategies and rules, we periodically stumble across an awkward reality: We do not know what we are doing. Very few of us have any training in the discipline of behavioral psychology, and almost all of us probably do it less well than we think. So we resort to less rigorous tools, egregious stereotyping among them. Thus, we predict that judges will rule in certain ways because they are Republicans or African Americans. We anticipate that jurors will lean in one direction or another because of their race, gender, ethnicity, or socioeconomic status. We evaluate the ability of a witness to testify persuasively by reference to his or her background, education, or physical appearance. We gauge opposing counsel differently depending on whether they are men or women, old or young, tall or short. As Billy Pilgrim says, “And so it goes.”
Resort to stereotypes is a time-honored tradition among litigators. In a fairly notorious magazine article, the legendary Clarence Darrow mused on jury selection in terms that would make most of us extraordinarily uncomfortable today. Clarence Darrow, Attorney for the Defense: How to Pick a Jury, Esquire, May 1936, at 36. Indeed, the piece is a catalogue of sweeping generalizations about how Irishmen, Englishmen, Germans, women, Presbyterians, Baptists, Lutherans, the poor, the wealthy, the good-humored, and so on, think about the world and bring that way of thinking into the jury box.
But stereotypes—generally defined as widely held but grossly oversimplified images of particular types of people—may surprise and betray us. They may have less predictive value than we assume, resulting in significant miscalculations and mistakes. They may lure us into settling for lazy and undisciplined guesswork when we could find substantially more reliable predictors if we put some effort into finding the relevant data. Even where stereotypes might turn out to have some modest predictive value, their use can raise unsettling issues of ethics and professionalism.