Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm: 

Brown cow
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.  

The Problem: Presumed Relevance

Having worked with many attorneys over many years, I think I can give a name to the problem: presumed relevance. Because the attorney has spent months or years gathering information, winnowing that information down, and crafting it into arguments, it is easy to assume that the relevance of the resulting information is clear on face to anyone who is paying attention. Because it makes sense to the team that’s been living with this case long-term, we believe it is going to make sense to the people who are hearing it for the first time. And the fact that it has been admitted into evidence, the fact that it has been previewed, presented, and reviewed, and the fact that the judge told the jurors to pay attention to everything — that means it is all going to stick. Only problem is, this requires levels of attention and retention that are literally superhuman. Your typical juror is going to be attending to some things and ignoring others, and doing so on the rational basis of what is interesting and what is useful. 

You cannot prevent that selectivity, but you can try to take control of it.  

The Solution: Draw the Connection, Explicitly and Repeatedly

The solution for advocates and experts, in all cases but particularly in longer and more complex cases, is to continuously remind yourself not to presume that your fact finders understand the relevance. Imagine after each point you make, the juror is replying, “Yeah? Why are you telling me this?” In your mind, that reason is screamingly obvious. In their’s, it isn’t. So answer that question, explicitly, as the last part of the argument you are making. 

In fact, it might even be a good idea to add two parts to that answer: Why is it interesting, and why is it useful

So, from the admitted documents and the testimony you saw, it is clear that this letter was drafted on October 12th, three days before the contract went into breach. Now, that timing is interesting because it suggests that this breach wasn’t a sudden crisis, but was instead a planned event. And that is useful for you because it answers the critical question of whether the defendant was forced into breach, or whether they chose to breach the contract. So this date isn’t just a detail, it is a key part of the story. 

Of course, there or no guarantees when it comes to jurors’ attention, or anyone else’s for that matter. They still might miss it even when you repeat messages like that. But the more you focus yourself, not just on “Here is the information…” but on “Here’s why it’s interesting and useful…,” the more likely it is that they will incorporate it into their own understanding of your case. 


Other Posts on Conveying Relevance: 


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