Category Archives: Comprehension

January 11, 2018

Let the Judge Teach (and Not Just Recite) the Instructions

By Dr. Ken Broda-Bahm:

We all know what good teaching looks like. We remember it from school, or perhaps even from our own time as teachers. Good teaching breaks things down and makes them simple, at least at the start. Good teaching uses concrete and vivid examples and illustrations. Good teaching engages and adapts to the learners. Now, contrast that with the moments at the end of a trial when the legal instructions are given to the jury. There’s no comparison. The judge sits on the bench giving a bald recitation of a dense text: no illustration, no adaptation, no engagement — it is the opposite of teaching. It protects you in the event of an appeal, but it is pretty unlikely to give jurors a useful, accurate, and memorable understanding.

As many have observed, that is doing a disservice to those who sacrifice their time for jury duty. And there may be a better way. A recent article by Fox Rothschild partner, Jeffrey M. Pollack, in the New Jersey Law Journal, carried by Law.com, is entitled “Helping Juries Succeed.” Along with a number of other suggestions, Mr. Pollack argues that parties should be open to the idea of the judge taking a more active and conversational approach in explaining the instructions to the jury, like a teacher would, instead of just reciting the pattern instructions. There are obviously some protections that would be needed, but I think that is an idea worth trying. In this post, I’ll share Mr. Pollack’s proposal and rationale, and also supplement it with some of my own ideas for harnessing the educational advantages while still protecting the case on appeal.

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November 24, 2017

Experts, Tell a Visual Story

By Dr. Ken Broda-Bahm:

When you think of science, do you think of dry research articles, charts and graphs that take a good deal of explanation in order to get to a point? Or do you think of Neil DeGrasse Tyson explaining the Cosmos with the help of clear but sophisticated video and graphics? If it is your goal to connect with an audience of non-scientists, like a jury for example, then your choice ought to be for something closer to the latter. A science-educator like Tyson, who uses all the tools available, is in a better position to make the material not just informative, but engaging and emotional as well.

In a past post, I shared the example of a four-minute video from Tyson on the science of public understanding of science, specifically. That video nicely illustrates the thesis of a group of researchers from Griffith University in Queensland, Australia (Czaran, Wolski & Richardson, 2017). Their paper, like this post, probably should have been a video, because it makes the case that researchers should stretch themselves to step outside the typical forms and outlets of the academy and should tell the story of their research, and use modern media to do so. That advice to distill the research outcome to “short, relatable, digestible, and engaging visual products” applies to expert witnesses as well. This post shares a few of their conclusions, based on their 12-month review of a new service designed to encourage researchers to use audio-visual media to tell their research story as they apply to the testifying expert.

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October 6, 2017

Don’t Mix up the Do’s and the Don’ts

Dr. Ken Broda-Bahm:

There are so many reasons why it is good to make a list, I could make a list of them (and actually, I did). But, safe to say, lists are ubiquitous in communication. We use them for shopping, for things we need to do, and steps we need to take. Mentally, we like the neat compartments of a discrete set of tasks or phases. The list can often take the form of the familiar “Do’s and Don’ts.” In product cases, for example, there are the sets of best practices for designing, testing, and marketing a product. In an employment case, there are the listed requirements and restrictions in the employment policies and manual. Or in a patent, there’s the list of claims and elements that must or must not be included. Ultimately, at the end of the case, there is the list of ultimate do’s or don’ts for the jury: the verdict form.

Usually these lists include both steps that are framed as action (do’s) and those framed as inaction (don’ts). We might see them as more or less equivalent. At the same time, there is some research suggesting that we are better off making them more consistent. In other words, try to stick with do’s or stick with don’ts, but the mixture is less streamlined and less influential than the consistent version. Before leaving the house, you might think, “I should feed the dog, take the newspaper in, don’t forget to set the alarm, and don’t leave any electronics running,” but you’re better off flipping those last two so they’re also “do’s” and not “don’ts:” Set the alarm and turn off electronics. That might seem like a small and artificial difference, but the research suggests that it is better to stick within a single frame (action or inaction) rather than moving back and forth. In this post I will share the details on that research, and I won’t neglect to also share (Okay, I will also share) some implications on what this means to legal persuaders.

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August 28, 2017

Don’t Expect Better Memory from a Jury

By Dr. Ken Broda-Bahm:

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It is conversation I frequently have when sending jurors off to deliberate as part of a mock trial.

“Can we ask the attorneys questions about the case?”

“No, just do your best with what you remember.”

“But what if there are things we forget?”

Don’t worry, as a group you’re going to remember more than you would as individuals.”

That seems like it would be true, right? A group should have a stronger collective memory, operating as a sum of the individual recollections within the group. That is part of the reason why the legal system in this case opts for group rather than individual decision-making. But what if it turns out that this isn’t true? Continue reading

June 19, 2017

Brown Cows and Chocolate Milk: Account for Rational Ignorance

By Dr. Ken Broda-Bahm:

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File this in the category of, “I didn’t realize just how uninformed some people are,” a new survey makes the claim that seven percent of American adults believe that chocolate milk comes from brown cows. The data comes courtesy of the Innovation Center for U.S. Dairy drawn from an online survey conducted in April of 1,000 American adults. On the one hand, that stands out as an awfully daft notion, and the seven percent an awfully high number (greater than the population of Pennsylvania). On the other hand, however, we don’t really know how the question was asked. One Huffington Post reporter contacted the organization that conducted the survey and could not get a copy of the actual survey. “One problem,” she writes, “it’s tough to gauge the survey’s reliability. It’s possible, for instance, that some people were simply trying to be funny while answering the question.” The other problem is that the survey was released during “National Dairy Month” by a group advocating more education on America’s dairies.

Whatever the veracity of this data point, it is a timely example of a larger phenomenon, and one that is relevant to public persuaders, including trial attorneys. That larger phenomenon is something called “rational ignorance.” George Mason University law professor Ilya Somin, writing in The Volokh Conspiracy, looks at the chocolate cow example before citing worse examples, like the 25 percent not knowing the earth orbits the sun or 80 percent who want mandatory labeling for food that contains DNA. Somin, the author of a book on political ignorance, argues that ignorance isn’t the same as stupidity. Sometimes, he writes, it is a rational behavior based on conservation of knowledge and attention. “We all have limited time, energy, and attention,” he says, “and so can learn only a small fraction of all the information out there. It makes sense for us to focus on that which is likely to be useful or interesting. For many people, large swathes of basic political and scientific facts don’t qualify.” And for many jurors in a courtroom, large swathes of what has been presented by one side or the other don’t qualify as useful or interesting either. In this post, I’ll share my thoughts on why courtroom advocates should see failed comprehension as not just an imperfection, but as part of a strategy by jurors, and focus on ways legal persuaders can make understanding more rational than ignorance.   Continue reading

March 20, 2017

To Address Implicit Bias, Rely on Rules Not Standards

By Dr. Ken Broda-Bahm: 

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In the first of Disney's Pirates of the Caribbean movies, the heroine of the story is demanding to be taken back to shore and invoking something called "The Pirate Code" to make her case. The pirate, Captain Barbossa, responds: 

First, your return to shore was not part of our negotiations nor our agreement so I must do nothing. And secondly, you must be a pirate for the pirate's code to apply and you're not. And thirdly, the code is more what you'd call "guidelines" than actual rules. Welcome aboard the Black Pearl, Miss Turner. 

And that's the failed legal argument that starts off the adventure. It is also a good illustration of the wiggle room that separates legal rules from legal standards. When it comes to the goal of avoiding or minimizing bias in legal decisions, it is a distinction that makes a difference. Rules (like an automobile speed limit) provide definite direction on a correct outcome. Standards (like a requirement for automobiles to drive "no faster than conditions permit") are subjective and require decision makers to draw inferences from the facts. Based on a long line of research, implicit bias against a wide variety of social groups is a fact of life, and legal decision makers —  jurors, judges, mediators, arbitrators — aren't immune to that bias. According to a recent study (Girvan, 2016), in civil litigation, instruction on legal rules help to mitigate that implicit bias, while instruction on legal standards does not."Rules," Girvan writes, "have a comparative advantage over standards in reducing the impact of bias on legal decisions." This is a finding that carries some implications for the tools that litigators use in addressing bias in court. 

The Research: Rely on Rules, Not Standards 

Erik Girvan, Assistant Professor at the University of Oregon School of Law, focused his research on the relative effectiveness of legal rules versus legal standards in reducing implicit bias. In settings outside of court, that pattern tends to bear out with, for example, police officers exhibiting less racial bias in who they pull over when they are using radar rather than their own observations. 

He started with 24 mock tort cases involving personal injury, and all based on actual cases that were affirmed on appeal. Half were affirmed based on a legal rule, and half were affirmed based on a legal standard; half also favored plaintiff and half favored defense. Girvan manipulated the fact patterns in order to focus on parties with either traits that are observed to be higher in perceived warmth (a white elderly widow) or traits that are observed to be lower in perceived warmth (a young, black man who may be involved in the drug culture). Then Girvan randomly assigned participants to one of several conditions: no training, training on legal rules, or training on legal standards that required discretion in order to be applied. The instructions were comparable to jury instructions, but with PowerPoint presentations. 

Girvan theorized, "If the doctrines provide only general guidance that requires decision makers to draw inferences and make discretionary judgments, then stereotypes will impact the decisions of even those with legal training." Study One focused on undergraduates, while Study Two focused on law students who had completed a tort law class. For both groups, the instructions focused on legal rules served to reduce bias based on stereotypes, while the instructions based on legal standards did not. Girvan concluded, "The results suggest that, absent affirmative guidance in the form of legal rules, all people, even those with legal training, are potentially ill equipped to decide cases without resorting to stereotypes."  

The Implications: 

When You Have a Rule to Refer to: 

If the bias would harm you, emphasize the rule. The research actually found use of the rule didn't just mitigate the effect of stereotypical bias, it reversed it. In other words, the party in the less-favored category was actually a bit more likely to win when the decision makers were instructed using a legal rule. 

When You Have Only Standards: 

One key fact here is that, if you're in a jury trial, then your jury is likely hearing standards, not rules. After all, if the case could be resolved by the simple application of a rule, it probably should've been decided by a judge in summary judgment. One implication of the research, however, is that when discussing the legal standards when you can (closing, opening, or oral voir dire) making those standards as rule-like as possible, will help to make them a better bulwark against bias. Emphasize what is concrete and definite over what is contingent and subjective. By rhetorically treating the law more as a rule than a guideline, you are deemphasizing the role that bias would otherwise play.  

Aristotle wrote that "Law is reason unaffected by desire." Well, the law may be that. But application of the law is definitely affected by desire, as a long line of research on motivated reasoning amply demonstrates. One reassurance, however, is that the more direct guidance the law gives, the less latitude is given to those desires. 

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Other Posts on Instructions: 

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Girvan, E. J. (2016). Wise restraints?: Learning legal rules, not standards, reduces the effects of stereotypes in legal decision-making. Psychology, Public Policy, and Law22(1), 31.

Image credit: 123rf.com, used under license

October 3, 2016

Let the Jurors Take and Review Notes

By Dr. Ken Broda-Bahm: 

Notes

You may have seen the video called “Order in the Classroom.” The piece, the work of the National Jury Trial Innovations Project, offers a quick and humorous take on what a college course would look like if it were run with all of the constraints of a trial. In the video, the students/jurors look on with surprise, anger, and bewilderment as the professor ticks through each of the class rules that parallel a trial rule, including…”and you can’t take notes to remind yourself of what you heard or what you thought was important.” Thankfully, some things have changed since that 1998 production. Note-taking is now fairly common in American courtrooms. In the federal system, it is at the court’s discretion, and even officially encouraged in some circuits like the 7th.  Note-taking is also promoted through the ABA’s Principles for Juries and Jury Trial, Standard 13(A): “Jurors should be allowed to take notes during the trial.” Despite that general acceptance, however, notes still aren’t uniform, and U.S. Legal notes that they are not allowed in 37 percent of state court trials. 

If a gap remains, that is a shame, because accumulating evidence shows that note-taking helps — not just taking the notes, but reviewing them as well. A recent study (Thorley, 2016) written up in ScienceDaily, shows that note-taking and note review makes jurors less likely to forget critical evidence, and that has an impact on verdicts. Dr. Craig Thorley of the University of Liverpool asked 144 mock jurors to view an American murder trial. Some were allowed to take notes, some were allowed to take notes and review those notes, and some were not allowed to take notes. Dr. Thorley found that the process of taking notes enhanced jurors’ memory of the evidence, and reviewing those notes helped even more. “This research emphasizes the importance of note-taking as an aid to remembering trial evidence,” Dr. Thorley notes, “but also shows that permitting jurors to review their notes, which is something courts do not typically do, further enhances their memory of trial evidence. I would therefore strongly recommend courts permit jurors to take notes during a trial and then give jurors time to review them prior to reaching a verdict.” These results suggest a potential supplement to ABA’s Standard 13(A): Instead of requiring jurors to leave their notes in the jury box as some judges do, jurors should be allowed to take and review those notes when they are in the jury room during breaks. In this post, I will share a few thoughts on advocating for note-taking before the bench as well as adapting to note-taking on the jury.  

Before the Bench: 

Of course, there might be circumstances where you don’t want your jury to take notes: for example, when the broad and easy story favors you but the details don’t. In these cases you would want your jury to take a more heuristic “big picture” route to your decision, a route that is facilitated in the absence of notes. When, however, you feel that a better and more specific understanding of the facts favors you, then you will want jurors to be able to take notes. 

When it is discretionary, counsel should feel comfortable advocating for notes during a pretrial conference. After all, one reason a judge might not allow juror note-taking in trial is that the attorneys have not asked. In making that request, make use of the ABA Standard 13(A), and you should also take a look at the case United States v. Causey, F.3d (7th Cir. March 28, 2014): “A judge would not try a bench trial without the ability to take notes, even though the trial transcript can be generated post‐trial. It is difficult to understand why jurors should not have the same opportunity to take notes.” In addition, I believe that for many judges, it would also help to cite the research, including studies like Dr. Thorley’s showing that note-taking and note review both increase comprehension of critical evidence. While some judges are skeptical that notes will be a distraction or will be treated as evidence itself, it is worth pointing out that the research accounts for those possible drawbacks and finds that the net effect is beneficial. 

Before the Jury: 

When your jury is allowed to take notes, there are a couple of ways you should adapt. 

Notice the Note-takers

Watching the jury is irresistible, but as I’ve written before, it can be a fool’s errand to try and figure out what they’re thinking at any given moment. One thing that you can tell, however, is who is taking notes and when. Of course, you won’t know exactly what they write — they could be doodling after all. But if you pay attention over time, a pattern is likely to emerge based on when they write. The note-takers are likely to be more sensitive to the details and are likely to retain more of what they hear, and both factors will make them more influential during deliberations. If you see someone write down a critical fact, make a note of that. Later when referring to that fact in closing, look directly at the person who wrote it down.   

Make Note-taking Easier and More Predictable 

What helps those who are taking notes and perhaps encourages the less experienced note-taking? One word: structure. Be explicit about your main points. Enumerate: There are three reasons, six chapters to this story, four key pieces of evidence on this point. Employ an order and a breakdown that is not just clear to you, but clear to your listeners as well. Use structuring devices such as chunks or chapters, or the well-known ‘rule of three.’ If they are encouraged to take notes, jurors are better able to build their own structure which contributes to their own understanding of the broad story and where the specific details fit in. The more you can control that process, the better. 

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Other Posts on What Helps Jurors: 

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Thorley, C. (2016). Note Taking and Note Reviewing Enhance Jurors’ Recall of Trial Information. Applied Cognitive Psychology, DOI: 10.1002/acp.3240

Photo credit: 123rf.com, used under license

June 23, 2016

See It Through the Jury’s Eyes: A Trial Consultant Does Jury Duty

Interview of Dr. Shelley Spiecker (by Dr. Ken Broda-Bahm):

Juror badge squareMy colleague, Dr. Shelley Spiecker, is one of the sharpest and most experienced trial consultants in the country. So, it was with some surprise that she recently found herself on a Denver County jury. I took the opportunity to sit down with her for a chat. To hear the full interview, click below (or follow this link).

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Ken: Thanks for agreeing to talk with me. We’re happy that you’re back from your jury duty and happy that you’re willing to talk with us about your experience. First of all, Shelley, I think the attorneys and trial consultants that you know and work with might originally, initially wonder how did you come to be on a jury?

Shelley: Well, I kind of wondered the same thing, actually. We were each asked to complete a one-page questionnaire – the particular criminal case was an issue of sexual molestation of two grandchildren alleged against their grandfather. I think they were aware I was a trial consultant. I think that perhaps part of the reason I was not called back for cause questioning is that a lot of people had experiences in their backgrounds that the attorneys needed to talk with them about. So I suspect that my professional experience didn’t rise to the level of a personal inquiry.

Interestingly, the next morning, the prosecutors spent a fair amount of their time focusing on me specifically, and asking me how I would assess witness credibility and, particularly, the credibility of children. And, pointedly, how much weight I would put on nonverbal and demeanor queues vis-à-vis testimony. So I think that they wanted some confirmation that I was going to not exert any disproportional influence in assessing credibility.

Surprises

Ken: Okay. Now, you probably know better than the average juror what to expect, but what was surprising to you about the whole process?

Shelley: Several things caught me off guard. The first was, frankly, how fatiguing the entire process was. You know, as consultants, we have at times spent 12-1/2 hours in a courtroom — one time in jury selection in Dallas a couple of years ago — and my 8 to 5 jury service was incredibly more fatiguing than any time I’ve ever spent in the courtroom.

Ken: Why do you think it was so taxing?

Shelley: I think for a couple of reasons. I think as a juror you’re trying to take everything in and processing minute detailed pieces of information. The other thing that was difficult is you’re put in a room with 12 strangers. There was a lot of tension in the jury room, so people would walk back on a break and immediately look at their phones or open their reading materials, and attempts by one or more jurors to strike up casual conversation were pretty much shut down by others in the jury room. So this was a fairly fatiguing intense process.

On the positive side, all of the jurors took notes. I was surprised by the detailed level of notes from 13 people with varied backgrounds. And the last thing I wanted to share with you, it reminded me of the importance of first impressions. You know, we live in a world of themes and silver bullets and opening statements and I think that’s absolutely true. The Defense came out with a very strong theme. The prosecution really didn’t have a theme until closing arguments and I think that it definitely made a difference.

Lessons for Attorneys and Witnesses

Ken: Okay. Now, is there any way you think advocates, parties, attorneys, or even witnesses could adapt or should adapt to the kind of taxing nature of jury service as you’ve observed it?

Shelley: I think so. It really reminded me how important it is to not have repetition. To have very succinct presentations. The opening statements were limited to 20 minutes per side and I was grateful. I found, given the taxing nature, that after about 20 minutes I really couldn’t take in all of the information that I wanted to take in. The other thing I think is critical is the use of visuals. Neither side showed any visual information in opening statements. And it was interesting, when the prosecution was talking about the familial relationship, I had a juror on the left and a juror on the right who were trying to create organizational charts of the family to give themselves some kind of a visual. And I think the importance of visual presentation—absolutely critical.

Ken: Is there anything else that you would advise attorneys to bear in mind, based on this experience?

Shelley: I think, going along with the issue of first impressions, the prosecution did a fair amount of inoculation in their opening statement. You know, we talk about the importance of embracing a bad fact if you’ve got it. Get it out early. I’m actually going to change my thinking on that a little bit. Because the prosecution did so much inoculation, my impression was that they had a very weak case at the beginning. In fact they didn’t. And in fact the jury ultimately voted for conviction on all four counts. But I think we need to be careful about how we inoculate and how we introduce inoculation points.

Ken: All right, Shelley, is there anything else that you would say to attorneys and witnesses?

Shelley: I would. I think that oftentimes we emphasize, when we work with witnesses, kind of preparing them for cross-examination and how to maintain control and credibility on cross. One of the interesting takeaways, we had a witness, a social worker actually, who’s testified over 100 times. She was a fantastic witness, a great storyteller. She had wonderful natural analogies in her testimony, great explanations. But because she was such a good witness, the prosecution failed to break up her testimony. They would just kind of give a head note and then she’d talk for five minutes. And, going back to the issue of you’ve really got to maintain juror’s attention, I think it’s critical that we look at preparing witnesses for effective direct testimony, as well, even when they’re great witnesses. In this particular situation, the prosecution erred in not breaking up this testimony with Q & A. You know, I think an answer that’s longer than two sentences, three sentences, even on direct, becomes too long. So, the effect of her testimony was not as great as I think it would have been had her testimony been broken up on direct with appropriate Q & A.

Lessons for Trial Consultants

Ken: Now, how about you? Are there any ways in which the experience as a juror will change the way you work with attorneys?

Shelley: A couple of ways, absolutely. Being more insistent on the use of visuals in presentation like I referenced. But another interesting way in working with witnesses, I think my focus has been almost primarily on the witness. And what I want to take away from this is the importance of helping attorneys in witness preparation, as well. In other words, suggesting specific questions to them, listening to how they’re asking questions of the witness and giving them feedback.

And I’ll give you a specific example. Part of the taxing nature that I talked about, I think anything that advocates can do to gain jurors’ attention is helpful. And so, sometimes, we’ll recommend treating one of your own witnesses as a hostile witness, for example. And, at one point, you could tell that the prosecution was trying to establish that the witness who was struggling with some memory issues had a history of having poor memory. And I think she asked the question, “Do you generally have a poor memory for details?” As I heard that, I thought, that’s not nearly as strategic as if she had treated the witness as hostile, and said, “Are you trying to tell this court and this jury that you don’t remember such-and-such?”  And that would have been more attention-gaining, and I think it also would have been helpful because the former looked almost as if she was trying to lead the witness.

There was one more factor that we had in this particular case, and that’s the court allowed the jurors to submit questions. And it was interesting. I felt the dynamic in the room kind of perked up when the judge was asking one of the questions that the jurors had submitted, even by fellow jurors that hadn’t submitted the question. So, anything that can gain attention is strategic.

Ken: Okay. So, you and I run mock trials, which are very condensed versions of what you went through, is there any way in which the experience of being a juror changes your perspective on pretrial research like mock trials or focus groups?

Shelley: You know, it really confirmed for me that what we do is a good test and a good strategy to help advocates get ready for presentations. I think that what we do, you and I in our practice, with testing exhibits, is very important. I think our use of testing jury instructions, absolutely critical. I think that when we are gathering feedback on what jurors questions are is extremely important because, to the extent that you can anticipate and answer a juror’s questions at trial, you’re inherently gaining credibility. The other thing that struck me, the backgrounds of my fellow jurors were extremely varied. I mean, I sat next to a woman who’s currently unemployed and going to school to be a canine masseuse.  Just the varied backgrounds – it was really shocking. And so, to the extent that when we are recruiting, and recruiting people randomly and recruiting people from various backgrounds, I think that’s absolutely critical to replicate the experience that you’re gonna have in court.

Trust in the Jury

Ken: Now, getting a little bit more broad in focus, we know that the jury as an institution is threatened these days. And the proportion of conflicts that end with a jury verdict or a jury trial has been in decline. I think that’s particularly acute in the civil arena, but also in criminal as well. Is there anything about your experience that speaks to the faith that we do, or should place in the jury system?

Shelley: Absolutely. I was shocked, as I mentioned, at the intense and extensive note taking by my fellow jurors. A couple of other things stood out that really give, solidify my trust in the jury system. I think I might have mentioned that there were four criminal counts against this Defendant. And they were fairly straightforward. And basically two counts for one victim and two counts for another. The jurors spent over five hours deliberating these four very simple counts, because they wanted to make sure that everybody poured over their notes. I was also struck by how closely jurors paid attention to the judge’s admonitions. On Friday morning when we knew that closing arguments were going to be later that afternoon, one of the women on the jury, who had actually served on three prior juries, just made a very brief statement. Again, the room is primarily quiet, and she said, “You might just want to start getting your thoughts together, because when we come in for deliberations after closing arguments, I found in my experience the voting goes pretty quickly.” And immediately, a male juror to my right said, “The judge told us that we’re not supposed to form an opinion until all of the evidence is in. And all of the evidence is not in.” So it was really interesting to see how closely people paid attention to the admonitions and how encouraging that was.

Final Words

Ken: Well, a lot of active trial lawyers and litigation consultants really aren’t ever going to get that chance to sit on a jury. So, is there any final words of advice that you’d have to a lawyer or consultant that doesn’t have that chance?

Shelley: I guess to an attorney, I would just beware of repetition. For years I’ve talked about the importance of telling jurors what you’re going to tell them, tell them, and then tell them what you told them. And in my experience sitting as a juror, I think some of that repetition is overkill.

I was, as I mentioned, so pleased by how detailed and focused my fellow jurors were that we got it. And I think the prosecution did an excellent job of not having any overlapping witnesses. For example, one fact witness was put on direct, for only five minutes. And that fact witness was extremely important because they were on for such a short time. So, not belaboring points, when the prosecution would stand up and say, “no redirect,” that sent a strong message that the Defense hadn’t done anything damaging on the cross-examination. So, my takeaway is, oftentimes less is more when it comes to presentation. And particularly in persuading jurors today. You know, in our environment, we got it. We came and we were ready to do our job. And took it seriously.

Ken: Okay. All right. Well, thank you very much for your time. We’re very happy to have you back. But it sounds like it was a very interesting experience for you.

Shelley: It was fascinating. Thanks, Ken.

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Other Posts on the Role of the Jury:

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Image Credit: It is Shelley’s Actual “Juror” Sticker.

June 16, 2016

Make Concentration Contagious

By Dr. Ken Broda-Bahm: 

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Modern life and communications tend to put up quite a few barriers to concentration. It’s easy to be distracted. Let’s say you are putting together an important memo when some other alternate possibilities creep into your awareness: Maybe you should check your calendar really quickly…or maybe see if any new emails have arrived in the last few minutes…or perhaps just a little reading of online news or blog posts! And before you know it, the focused hour of work in the office you hoped to put into the memo has turned into an unfocused 15 minutes stretched out over 60. One reason for that challenge in concentrating might be the office itself, and specifically the fact that you are alone. According to one recent study (Desender, Beurms & Van den Bussche, 2016), one very effective means of concentrating is to simply be around others who are concentrating as well.

To study the contagious effects of concentration, the researchers simply seated study participants side by side in order to perform a series of tasks. When the task would suddenly become more difficult for one member of the pair and require greater mental effort, the increased concentration exhibited by that participant would transfer to the other member of the pair. Even though the second person’s tasks had not changed, they suddenly began concentrating more effectively simply because they were seated next to someone who was concentrating. The authors write, “Simply performing a task next to a person who exerts a lot of effort in a task will make you do the same.” The researchers offer the possibility that this may be due to simple modeling: “It could be that this does not reflect a truly deliberate decision, but instead a more automatic tendency to imitate people, as is the case with yawning, rubbing your face, shaking your foot, and facial expressions.” This ability to create better attention through simple nonverbal copying has some important implications both for trial preparation as well as courtroom persuasion.

Concentrated Trial Preparation: The “War Room” Is Better

Some of the run up to trial involves solitary work in an office – it’s hard to draft a motion by committee, for example. But other trial prep work is collective and centered around a common location. Most of the trials I’ve been involved in, and nearly all of the large ones, have included a war room. It is to the trial what the kitchen is to your house: The place where everyone meets and where the actual work gets done. The partners and associates working the case usually come and go, while the boxes and the paralegals are typically there to stay. In my experience, though, the best crunch-time work, creative brainstorming and strategizing takes place in that room, and it may be due to the contagious nature of a particular type of attention.

Concentrated Trial Persuasion: Show What You Want Jurors to Copy

Modeling is not just a strategy for working. Given that advocates want a particular kind of attention from their audience, it can be a way of persuading as well. Whether from the lectern or from the witness box, presenters should account for the human tendency to copy.

A post in Psyblog notes that the contagious effects of concentration noted in the study is just one of many nonverbal behaviors that humans are known to copy: Happiness, anxiety, rudeness, laughter, and risk-taking also tend to be copied in communication from a sender to a receiver. That suggests that persuaders ought to be consciously modeling the attitude you want your audience to adopt. For the attorney delivering an opening or a closing, or conducting an examination, or for the witness in the box, that means modeling the attention you want the jury to give. Show skepticism when you want them to be skeptical, precision when you want them to be precise, and alertness and animation when you want them to wake up. It isn’t a perfect one-to-one, but the engaged presenter is more likely to be engaging, just as the bored advocate is more likely to be boring. 

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Other Posts on Mental Hacks:

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Desender, K., Beurms, S., & Van den Bussche, E. (2015). Is mental effort exertion contagious?. Psychonomic bulletin & review, 1-8.

Image credit: 123rf.com, used under license, edited. 

March 28, 2016

Pre-instruct

By Dr. Ken Broda-Bahm: 

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Last week, in a blog article in the Huffington Post, screenwriter and columnist Robert J. Elisberg shared his trial diary from a two-week workplace injury case against the retailer Cost Plus. His notes included this observation, which is worth quoting at length: 

One of the oddest things of all is that, very surprisingly, it wasn’t until near the very end of the trial that we even started to even have an idea what we were there to decide on. Really. In most cases, I assume that you know from the opening statements that you’re deciding on guilt or innocence, in a criminal case. Or who improperly turned their car first at an intersection to cause a crash. Or if someone broke a promise. Or whatever is at issue. But in this trial…honestly, we had absolutely no idea what was exactly at stake to be decided. We knew that the defendant Cost Plus admitted fault, so that wasn’t even an issue. And that’s all we knew. We could also presume what was going on. It seemed like what we would have to decide was one of two things (or both) – first, whether the plaintiff actually had [Complex Regional Pain Syndrome] and if so, when it initially occurred, or second (the most likely decision), how much or little money she should get awarded. But even if the latter was the issue – we had zero idea what amount was being asked for by the plaintiff. None.

Unfortunately, that level of mystery on the specific questions that jurors will answer is not as uncommon or surprising as Elisberg thinks. While jurors will more commonly hear damage requests in voir dire or opening statement, it is typical for the jury to hear the specific instructions on the legal claims they’ll decide only after they have heard all of the evidence in the case. Obviously, that isn’t ideal from the perspective of juror comfort or understanding. In a review of the issue, University of Nevada, Las Vegas Associate Law Professor Sara Gordon (2014) writes that, “Jury research tells us that jurors want to understand the information they hear in a trial so they can reach the correct decision.” It should be a simple matter to give them the right instructions — meaning those necessary to identify and resolve the claims at issue — prior to hearing the evidence. It isn’t, but it should be, and this post looks at why. 

The Problem: Not Often and Not Enough

The article (Gordon, 2014) reviews a long history of research showing that jurors have difficulty understanding the instructions, with some studies reporting comprehension levels that are no better than chance. In the absence of a good understanding of the law, jurors will rely on biases, false expectations, and “street definitions” instead. That problem is magnified when, as in most cases, jurors don’t hear those instructions until after the evidence and the closing arguments. While some courts have begun to pre-instruct and eight states require it, in most venues, pre-instruction is at the sole discretion of the trial judge. And much more often than not, any pre-instruction that does occur addresses only broad legal principles like burden of proof, and the fact that what the attorneys say isn’t evidence. Gordon notes, “It does not usually include specific instruction about the elements of the crime or claims at issue.” 

The Advantage: Pre-instruction Promotes Better Understanding

The advantages to pre-instruction should be obvious. After all, if we are assembling a desk from IKEA, we review all of the instructions before we start trying to fit the pieces together…or at least we should. But the benefits of pre-instruction go beyond that common-sense justification. 

Based on research reviewed by Gordon, the advantage in giving claim-specific instructions prior to evidence is that the instructions hit the jurors when they are in the right mindset for understanding it. Before hearing evidence, jurors are in what is called, perhaps ironically, a “deliberative mindset.” A deliberative mindset is one that is, if not neutral, at least open to the possibility of different outcomes. After hearing all the details of the story, however, jurors are more likely to hold an “implemental mindset,” which Gordon describes as being one where “they try to fit the law to the story they have created.” 

With pre-instruction, jurors don’t yet know the story and are only motivated to learn the law. With post-instruction, however, they are likely to only be focused on information that is relevant to the story that is already fixed in their minds. 

It is also easier to understand the instructions at the beginning due to a reduced cognitive load. In other words, it is easier to just focus on the law instead of simultaneously learning the law and fitting it to the facts. Pre-instruction should also make it easier and more efficient to attend to the evidence during trial because jurors will know what they should be looking for and what specific questions they are trying to answer.

Gordon concludes, “Psychology research tells us that this type of pre-instruction can help motivate jurors to get a handle on the applicable law before they become too bogged down in the facts of the trial, allowing them to better understand and remember the evidence they will hear in a trial.”

The Frustration: So Why Isn’t It Routine?

To those outside the legal system, like Mr. Elisberg, the jury-blogging columnist and screenwriter, it seems like such an odd problem to have: Why on earth wouldn’t the finders of fact need to learn about the conclusions they’ll be asked to reach prior to hearing the evidence offered in support of those conclusions? To those who work in the legal system, however, it is more nuanced. 

The judges or the parties will often say that there are too many unsettled issues at the start of trial: Who knows how the evidence will come in? Who knows what claims might survive and what claims might be withdrawn? Who knows how the judge might rule on legal issues that will only come up in a specific factual context during trial? 

The answer, though, is that we can know and should know all of that prior to trial. It comes down to better trial management, and some judges require that and others don’t. There are complexities, but if we are guided by the question of what best promotes accurate understanding by the jury — and we should by guided by that question — then the answer is clear. Pre-instruction makes for jurors who are more comfortable, who hear the law when they are in the right mindset to understand it, who appreciate what evidence means as they’re hearing it, and who have a better understanding of that nexus of the facts and the law that lies at the core of their constitutional role. 

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Other Posts on Jury Instructions: 

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Gordon, Sara, What Jurors Want to Know: Motivating Juror Cognition to Increase Legal Knowledge & Improve Decisionmaking (2014). Tennessee Law Review, Vol. 81, p. 751, 2014; UNLV William S. Boyd School of Law Legal Studies Research Paper Series. Available at SSRN: http://ssrn.com/abstract=2308593 or http://dx.doi.org/10.2139/ssrn.2308593

Image credit: 123rf.com, used under license

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