Trial Lawyers vs Scientists

By Dr. Al Schoonmaker

They generally dislike each other because they think very differently. Trial lawyers are dominant, and scientists are detached. For descriptions of extremely detached and dominant people click on a blog title on this page.

Dominants generally regard detached people as “bean counters,” regardless of their credentials or authority. Detached people often regard dominants as emotional, illogical bullies. The conflict between them is illustrated by the extreme differences in the way they handle evidence.

Detached people handle evidence objectively. They want to determine the truth.

They draw their conclusions after examining the evidence, and they try very hard to ensure that the evidence and the way it is analyzed are not biased.

They understand that everybody has biases, and they use procedures to minimize the effects of their own and other people’s biases: randomized samples, control groups, double-blind experiments, and peer-reviewed journals. If a scientist is presented with solid evidence that proves that his position is wrong, he will accept that evidence and admit his mistake.

Dominant people handle evidence subjectively. They don’t care much or at all about the truth. They just want is to win.

They begin with a conclusion: my side is right, and then they do everything they can to win. They rarely admit mistakes, and they sneer at objectivity.

Criminal jury trials are the perfect example of their contempt for objectivity. Prosecutors and defense attorneys aren’t there to determine the truth about guilt or innocence. They are there to win, and the only thing they care about is the verdict:

He’s guilty.

He’s innocent.

They try very hard to get juries that are biased in their favor. They do background checks, cross-examine potential jurors, and use jury consultants to find people with biases that favor them.

Before the trial begins, defense attorneys frequently file motions to suppress evidence that weakens their case. It may be convincing proof of guilt, but they often get it suppressed. During the trial both sides try very hard to convince the jury that their evidence is correct, and they twist the meaning of the other side’s evidence.

If a defense attorney wins an acquittal for an obviously guilty client by suppressing or distorting evidence, he’s done his job well, and other attorneys will congratulate him. If a scientist handled evidence that way, other scientists would severely criticize him.

You may think that only criminal defense lawyers act so unethically, but you’d be wrong. Prosecutors aren’t as bad, but they frequently violate the law or legal procedures to get a conviction. A Google search for the legal term, “prosecutorial misconduct” got 331,000 hits. A search for the more common words, “prosecutors’ misconduct” got 2,430,000 hits.

My friend, Jim Brier, emailed that defense attorneys must rely on suppressing evidence, etc. because the prosecution has immensely greater resources. I agree about the resources-imbalance, but it doesn’t affect the central issue: Neither attorney is at all objective about the evidence. They just want to win.

To learn more about how thinking styles affect negotiations and many other issues, read the final chapter of my forthcoming book, Negotiate to Win: Gaining the Psychological Edge, 2nd Edition. For a free copy, click here.

To see my negotiating videos, click here.