Source of article The Sound Jury Library.
By Thomas M. O’Toole, Ph.D.
Before you read any further, watch the above 1 minute and 41 second video, which will provide incredible insights into your trial presentation strategy as discussed below.
Did you pass or fail? As they tell you in the video, almost half of all of the people who watch this video (and have not seen it before) fail the test by not seeing the gorilla. Even more interesting, we learn that even those who have seen this kind of experiment before (and expect something odd to happen) failed to notice the second change, which was the color of the curtain in the background.
Your first reaction may have been that this is an interesting little party trick kind of experiment that you can forward along to your friends, but upon further glance, this experiment provides critical insights into what happens at trial as jurors listen to your case presentation. Describing this experiment, Nobel Prize winning psychologist Daniel Kahneman noted that “intense focusing on a task can make people effectively blind, even to stimuli that normally attract attention.”
In other words, what is so incredible about this video is that half the people that watch it are totally blind to something so absurd and painfully obvious even though it is happening at the center of the screen right in front of them. But as Kahneman says, “The authors…made the gorilla ‘invisible’ by keeping the observers intensely busy counting passes.”
At trial, all jurors deal with some busy task similar to counting passes. For some, it is just the struggle of trying to understand what criteria they are supposed to use to decide the case. For others, it is the struggle of trying to make sense of an overwhelming amount of what is often complex information. For some, it is just trying to figure out what point an attorney is making in a long, boring direct or cross examination that feels unnecessarily slowed down by the need to lay foundation (jurors tend to see this as attorney rambling rather than a legal requirement).
This struggle is only compounded by the phenomenon demonstrated in psychologist Elizabeth Newton’s tapper/listener study. In this experiment, Newton divided participants up into two groups. The first group chose from a list of popular Americana songs (such as Yankee Doodle, Happy Birthday, etc.), and were tasked with the job of tapping that song out with their finger to the listener sitting across from them. The tapper could not talk or give any other hints beyond the tapping of the song. When asked before the task how often the listeners would get it right, the tappers guessed about 50% of the time. In reality, the listeners got it right about 2.5% of the time. The lesson was that people who communicate information (in this case, the tappers communicating a song through tapping) tend to overestimate the likelihood that the other person will understand what they are communicating. The reason is because the communicator knows the message in his or her own mind (in this case, the tappers hear the song in their head as they tap it out), so the message seems “so obvious” to them in the communication act. But the listeners don’t have the song in their head; they only have the tapping.
Here is what these two studies tell us: 1) People who are performing complicated mental tasks can be totally blind to the painfully obvious; and 2) Communicators tend to drastically overestimate how obvious their message is to their audience.
Translation: As an attorney who has spent months, if not years, in the trenches of discovery on your case, you will overestimate how obvious some of the points you are trying to make at trial actually are; AND, your jurors very well may still miss what is and should be obvious.
The lesson: if something is important and should be obvious, you need to adopt communication techniques that ensure it is perceived as such. Don’t assume it will be obvious to jurors, because you will probably be wrong. Furthermore, only making a point once is akin to not making that point at all because one moment in a long trial is easy to miss and/or lose sight of when it comes time to deliberate. Instead, attorneys should look for presentation techniques to make it more salient in what is happening at trial. Simple techniques include constant repetition, road-mapping, and visual presentation . It may feel like overkill, but these steps will help your jurors see the gorilla.