*Previously published our Jury Economics column in the January 2020 issue of the King County Bar Bulletin.
By Thomas M. O’Toole, Ph.D. and Kevin Boully, Ph.D.
Then-Stanford Psychology graduate student Elizabeth Newton conducted a fascinating experiment over a decade ago when she divided participants into groups she dubbed “tappers” and “listeners.” The tappers were asked to select from a list of well-known Americana songs and then tap the tune for the listener assigned to sit across from them. The tappers could not say or hum anything. All they could do was tap their finger. The listener’s job was to guess what song was being tapped by the tapper. The tappers predicted that the listeners would guess the correct song 50% of the time, but when all of the results were compiled, the listeners were only able to guess the correct song 2.5% of the time.
The study was a lesson in communication. For the tappers who could hear the song in their heads as they tapped it out, it was easy to overestimate how obvious the song was to the listeners, who could not hear the song in their head. The listeners lacked the context that made it so easy for the tappers to think the song they were trying to communicate was obvious. The same thing happens at trial, with attorneys taking the role of the tappers and jurors taking the role of listeners. We have worked to address this challenge for years, but in this month’s column, we want to explore it a little deeper because it is easy to overlook just how difficult it is for jurors to hear the song in the heads of the trial teams. Some of these barriers have nothing to do with the case, the attorneys, or anything that is actually happening in the courtroom. A better understanding of these barriers helps attorneys present their cases in ways that provide jurors with clear vision of the key issues in the case. Continue reading