December 30, 2013

Chunk Your Trial Message

By Dr. Ken Broda-Bahm: 

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Give me the bite-sized version, break it down into pieces, and tell it to me step-by-step. The brain loves to segment, and the process known as “chunking” seems to be a central part of how we recognize patterns, manage information, and form new insights. A recent perspective on the process is articulated by Cambridge neuroscientist Daniel Bor in his book, The Ravenous Brain (2012). According to Dr. Bor, this ability to chunk is a key feature — perhaps the key feature — in human consciousness. “The process of combining more primitive pieces of information to create something more meaningful,” he writes, “is a crucial aspect both of learning and of consciousness and is one of the defining features of human experience.” 

The book covers a broad sweep, and it is likely that I’ll be mining it for future posts. But one of the clearest implications of Bor’s thesis is that practical persuaders need to adapt to the brain’s preference for patterns by giving the gray matter what it’s looking for. And if it’s true that an essential element in making meaning is conveying these chunks of information, the “small nuggets of meaning that are particularly salient,” then that is a very important concept for persuaders to understand. While much of the media attention regarding Bor’s work (e.g. this piece from Lifehacker) has focused on use as a memory aid to remember longer and longer chains of numbers, for example, the more basic implication of chunking lies in giving us insight into how we experience and perceive. Though chunking “can vastly increase the practical limits of working memory,” Bor clarifies, “it is not merely a faithful servant of working memory — instead it is the secret master of this online store, and the main purpose of consciousness.” A recognition of components and an ability to organize them into patterns is nothing short of the substructure of how we perceive, think, and are persuaded. This need to break information into chunks has implications for all communicators, including litigators at all phases of trial: voir dire, opening, witness examination, and closing. 

What Does It Mean for Litigators to Chunk?

The first reaction from the communication-savvy individual to this advice about breaking a message down into chunks might be, “thanks, Captain Obvious!” And of course, the need to have structure in any message is something that is drilled into us from Speech 101 on. But in my day-to-day work, I continue to believe that attorneys who truly take this to heart are the exception rather than the rule. Yes, the attorney may be clear in his own head that he is following an outline, but are the jurors and the judge? What if one were to ask at the conclusion of an opening, “Okay, who can tell me what the structure was — how many main points were there?” Following the average opening statement, how many would know the answer, other than the speaker? 

My belief — and I’ve sometimes checked this belief after mock openings — is that the answer is few to none. It is one thing for the attorney to get that structure, and it is another thing for her listeners to get it just as well. Litigators and other communicators often believe that they’re breaking things down based on a clear, explicit, and meaningful structure, but their audience instead simply experiences a continuous and unbroken flow of information or arguments. Here are a few rules of thumb for making sure you’re actually chunking when you think you’re chunking: 

    • It has to be simple (which usually means flat, without substructure, and limited to a manageable number of main points). 
    • It has to be explicit (which usually means actually saying something like, “First point,” “Second point,” and “Third point”).
    • It usually should be previewed (“Tell them before you tell them,” unless you having a strategic reason for preserving a surprise). 

With these requirements in mind, here are a few reminders on where and how litigators should chunk their trial messages. 

Chunk Your Oral Voir Dire

Attorney-conducted oral voir dire should not consist of a long list of questions. Instead, there should be topical divisions, each with its own goal. For example, in a products liability case, you might move from general to specific, focusing first on attitudes toward personal responsibility, then on views of product cases in general, then on reactions to the situation involved in the case at hand. Within each topical segment, there might be a natural sequence: A set-up that encourages jurors to call their experience to mind; a choice of some kind that divides higher-risk from lower-risk jurors; and a follow-up that elicits supportive themes. At the end of each segment, transitioning and signposting the next topic will help the venire members maintain their interest and focus. 

Chunk Your Opening Statement

The goal of opening statement is to give jurors a way to think about your case and structure can be key to that. Of course, most attorneys now know that the best way to open effectively is by telling a story. But telling a story doesn’t simply mean tying all the facts all together with an “and then…” link between each. Most books have chapters and most plays have scenes. They follow that format because structure is really the essence of story. As you move through your opening story, make sure that your listeners will have a sense of that movement. That means knowing when each new chapter begins. 

Chunk Your Witness Examination

Examination amounts to a series of questions, but to the juror watching it, the examination also should break down into discrete topics and themes. In either direct or cross examination, the same principle of telling the story in chapters applies. Each section should be united by its own goal (e.g.,  in the “Experience” section of cross, the goal is to show that, while impressive, the expert’s experience is irrelevant to the issues in this case). In addition, each segment should follow a common pattern: first an orientation, then a fleshing out of greater and greater detail, and then a punchline or conclusion. In direct, it is important to have witnesses familiar with the sequence as well, so they are prepared without being over-prepared

Chunk Your Closing Argument

In most cases, the closing should follow the verdict form order, with those questions providing the chunks that are most relevant at that stage. Instead of telling the trial story over again, you will want to focus jurors on the story that lies ahead: deliberations. The problem is that by this point, jurors have heard a lot, and your focus cannot simply be on repetition. Instead, you need to organize and synthesize what they have heard, and that is where chunking comes in. Treating each of the verdict form questions as a basket in which to group the relevant evidence and argument provides jurors with the most meaningful and motivated way to organize their recollections of the trial. 

At this time of the year, there is one more timely application of chunking. That is the reminder that we don’t  experience time as free-flowing. Instead, we impose a human order on those natural rhythms and chunk time into years, then months, then hours, minutes, and seconds. So, as 2013 winds down, I offer this wish: May your next chunk be at least as good as your last. 

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Other Posts on Message Structure: 

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Bor, D. (2012). The Ravenous Brain: How the New Science of Consciousness Explains Our Insatiable Search for Meaning. Basic Books.

Photo Credit: Trekkyandy, Flickr Creative Commons

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