Source of article The Advantage Blog - Tsongas Litigation Consulting.
Let’s face it, most trials are long and boring, especially in today’s sound bite era where most people’s attention spans no further than the time it takes to read a meme or social media post. Jurors are not used to sitting for long periods of time listening to evidence presented through a question-and-answer format. Yet we expect them to work hard to pay attention, understand, and retain the information. The trouble is, the human brain is naturally lazy. It doesn’t want to work harder than it has to in order to process information. As a result, our brains often rely on a series of mental short-cuts to make decisions. These mental short-cuts are referred to as heuristics in psychology terms. Heuristics are the methods our brains use to ease the cognitive load of making a decision.
Examples of some of the most common heuristics are making an educated guess, relying on common sense, falling back on a rule of thumb, or looking to the facts and evidence most readily available rather than digging deeper into the issue. Reliance on these short-cuts is more prevalent in decision making in complex situations. For example, it’s easier for our brains to conclude that “the two products look similar, therefore one must be a copy of the other” than it is to weed through the patent claims of each product to determine if there is infringement. It’s easier to rely on a single, readily available email to conclude that a manager’s reference to the “girls’ club” is a sign of discrimination rather than look at all of the evidence in order to reach a decision.
Trials present jurors with information overload, but the solution to the burden this puts on jurors is not to reduce the amount of information. Clearly, there are evidentiary, appellate, and professionally responsible reasons why we attorneys must put on a lot of evidence. The solution, instead, involves promoting cognitive ease. There are a number of ways to ease the load of a lengthy examination, or a trial with 28 days and 1240 exhibits.
Being exposed to information multiple times has many benefits. First, the more we hear something, the easier it is to understand. The first time we’re introduced to a new concept, our brains have to work hard to process what we’ve heard. For example, the first time a juror hears, “toxic emissions were within permissible exposure limits,” they probably won’t fully appreciate the message being sent. Some jurors may only hear “toxic emissions” and rely on their common sense, short-cut understanding that “toxic exposure = harm = liability.” But the more they hear the phrase, the more familiar it becomes, and the more likely they are to attend to and comprehend the full meaning.
Repetition has additional benefits beyond fighting the battle of information overload. The more we are exposed to something, the more likely we are to believe it’s true. Additionally, more exposure results in more likability. This is because familiarity promotes favorability. Think about the first time you heard a song. It may catch your attention, but on most occasions, you probably don’t instantly fall in love. But after you’ve heard that tune pumped through your car stereo five or six times, you find yourself liking it more and more. Advertisers know this well. That is why we continue to be bombarded with advertisements of well-known brands. The more we are exposed to something, the more we like it. Choose two or three overarching trial themes and weave those phrases into opening, examination, and closing.
A warning about repetition. Jurors often tell us there is too much repetition in a trial. You should heed this warning in some circumstances, but it should not dissuade you from using repetition to reduce cognitive strain. When information is complex, or when a theme is critical, you should repeat it often throughout the trial. What jurors don’t like is repetition of common sense facts or of information that only needs to be stated once or twice. For example, jurors don’t want to hear the corporate story from every witness. They don’t need to hear the glowing character evidence about your client over and over. They don’t need to hear from eight past victims of abuse to know there is an institutional problem. Make a strategic choice about what information to repeat.
Preview Each Witness’ Main Points
Our brains are like a sieve: 150 things may go into our head each trial day, but we only retain a fraction of what we hear. Don’t expect a jury to remember 15 important things from the day’s testimony. Think about the three most important things you want the jury to take away from each witness and make sure you emphasize those three things.
Jurors have told us that they wished the judge would give them a roadmap of what would happen each day of trial. They enter the courtroom in the morning not knowing how many witnesses will be on the stand or what ground will be covered. This uncertainty can cause fatigue as jurors are working hard to catch every important detail. You can lessen the cognitive load by helping the jury know what three things will be covered with the witness. “Dr. Jones, I’d like to ask you some questions today about the importance of proper cannula placement, how often complications occur, and your opinions about how the defendant fell below the standard of care. Let’s first start with the importance of cannula placement. Can you explain to the jury…?” Helpful signposting, as well as transitions between topics (“So now that the jury understands the importance of placement, let’s talk about complications….”), will help the jury stay on top of the information and not drown in the facts and focus on the most important points of the testimony.
Reduce Audio and Visual Noise
A less obvious source of cognitive strain is the unintentional noise created by low quality audio and visual exhibits. If jurors have to work hard to see or hear evidence, they are less likely to pay attention. Remember the brain is lazy and it will give up trying to process something if it is too difficult. Following a few basic rules will help reduce audio and visual noise.
- Use clean documents – We’ve all seen the copy of a copy of a copy exhibit displayed on the screen. Poor quality copies contain distracting visual artifacts that turn the brain off from processing. Use the highest quality image possible, and hire a graphic expert to cleanup the document. If an image is so old (for example the 1937 asbestos manual), consider having the portions you want the jury to see re-typed into legible font. You can show the original document and then call out the important text in a large, legible text box.
- Reduce text – Visual aids should not contain so much text that a juror has to “read” the words. Our brains can quickly scan and process a few headlines, image titles, and summary phrases, but too much text compete with a juror’s cognitive ability to concentrate on both what they are reading and what you are saying. The most common source of too much text is bullet point PowerPoint slides. This truly is the subject of another blog (and a message that’s been pounded into your brains over and over), but do not repeat what you will verbally say to the jury with words on a slide. It’s unnecessarily distracting and actually reduces learning.
- Increase font size – Too many times I’ve seen PowerPoint slides, documents projected on a screen, or an exhibit board with text too small to read from more than two feet away. Graphic artists have calculations they use to know what font size to use when an image is projected at a certain size from a certain distance away. But if you don’t have the luxury of hiring an expert, conduct a visual test yourself. Bring your board or projector to the courtroom well in advance of trial and see if the text is legible from the jury box. Generally, you don’t want to go smaller than 36 point font if you’re more than 5 feet away.
- Use high contrast colors – Our brains process high contrast more easily than low contrast. The highest contrast colors are black and white or yellow and black or blue. Avoid light text on dark backgrounds – it’s harder to read. Use color as accents or visual highlights, but avoid distracting color schemes that create cognitive strain.
- Check your volume – Just like you should test your font size, you should test volume of audio evidence prior to playing it in court. Sure, you can hear the 911 call easily from your office computer speaker, but do you have the equipment to project the sound loud enough in court? If jurors have to lean forward, turn their heads, cup their ears, or ask for playback, they are working too hard to process the evidence properly.
- Remove static and background from audio evidence – As long as you don’t jeopardize the authenticity of audio evidence, it should be “cleaned” for audio clarity. Audio experts can help produce a clear and clean audio file. Distracting static turns the brain off.
Every trial is different in terms of length, complexity, and the number of witnesses. But considering how and why people make short-cut decisions in every trial is a critical component of strategic persuasion. We must first pay attention to information before we can understand. If we have to work too hard to pay attention, we’ll never reach understanding. And once we understand, we have to be exposed long enough to like what we hear and be able to repeat what we’ve learned. Easing the cognitive load is a critical step in promoting attention, understanding, and recall. We can’t change nature, but we can help appease our naturally lazy brains.