The “law of least effort” is an important principle for understanding jury decision-making. In short, if there are several ways of making sense of the evidence and testimony in a case, jurors will gravitate towards the one that is the least demanding for their brains. As Nobel-winning psychology Daniel Kahneman (who has spent his life studying human decision-making) states, “Laziness is built deep into our nature.”
In fact, research has consistently shown that we assign greater weight to information and ideas that are more easily accessible to us, regardless of whether that information or those ideas are accurate and reliable. It may be because the information or idea is familiar, easier to understand, makes more intuitive sense, or ties to something that is easier for our brain to access. Continue reading →
An important lesson I have learned from observing jurors’ decision-making in mock trials is that jurors sometimes dislike strategies that nevertheless are quite effective. They may not like what they see, yet they are still persuaded by it. These moments can be tough to digest. Besides the gut-check, it is difficult to ignore the fact that several mock jurors are criticizing something you did. However, research has shown over and over again that persuasion does not always happen at a conscious level. In other words, what jurors verbally express about something does not necessarily reflect its actual effectiveness. Continue reading →
One of the most popular strategies used and advocated by many plaintiff’s attorneys across the country is the “broken rule” strategy. The theory is that the most important strategy for any plaintiff is to establish a clear rule up front, and then prove that the defendant broke that rule. Some of the popularity of this theory comes from Reptile, written by David Ball and Don Keenan.
As I’ve written before, there are a variety of significant problems and shortcomings associated with the Reptile strategy, one of which is that the “science” that serves as the foundation for the theory has largely been disproven. However, just like some people still believe vaccinations lead to autism, many attorneys have brushed aside the problems with the science behind the Reptile strategy. So let’s set the science discussion to the side and take a closer look at the “broken rule” strategy. Continue reading →
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.” Continue reading →
In his 2011 book Thinking Fast and Slow, famed psychologist and Nobel Prize winner Daniel Kahneman wrote this in his effort to explain the essence of intuitive heuristics: “When faced with a difficult question, we often answer an easier one instead, usually without noticing the substitution.”
While the fundamental concept in this quote is not particularly ground-breaking (at least in today’s world of psychological research), Kahneman’s phrasing eloquently hammers home a critical point for attorneys and how they think about their cases. Continue reading →
I had a very interesting experience recently on a case in New York. While we had worked with the client before, we had never worked with this particular group of attorneys. The stakes were significant and there were ongoing discussions about a potential mock trial. These discussions created an interesting dynamic where the client wanted to do a mock trial, but the client’s attorneys did not support the idea and questioned the value of such a project. Notably, the client, who we had worked with several times in the past, had never conducted a mock trial before, so while he was convinced that there was value to a mock trial, he could not necessarily articulate what the specific benefits of conducting one would be.
The end result was that the client made the decision to move forward despite his attorneys’ lack of interest. Afterwards, he was so impressed with the critical insights that we learned that the decision was made to conduct a second mock trial a month later in order to maximize the trial team’s intel for its strategy development and trial presentation decisions. Continue reading →
In episode 3, I discuss the common psychological processes at play as jurors attempt to make sense of all of the information presented at trial, with particular focus on what this means for the development of an effective defense strategy.
I’m a relatively new user of Facebook – turns out my protest against it wasn’t working as there are now over 1.25 billion users. I finally gave in and joined as I was told that people use it to share pictures of their kids, dogs, and vacations. While that is somewhat true, I’ve also found that people use it to “share” and “like” their political, religious, and moral views about every subject under the sun. Now, don’t get me wrong, I have no problem sharing my opinion, but typically I like to do it in a face-to-face setting where we can engage in a discussion of the issue and where people can tell me I’m full of “it” right to my face – no hiding behind a computer screen.
My dislike for Facebook has become more intense recently. I’ve learned in the past couple of months that I’m going to have to take a hiatus from it until the political season is over. I was thinking about the posts and the feedback to those posts when an attorney friend posted the picture above.
This got me thinking about what I do – and how social media and the “sharing” of opinion as if it’s fact influences how people pay attention to, process, and remember information presented to them during trial. Continue reading →
Let me first say I’m thrilled to be joining my former colleague, Tom, at Sound Jury Consulting. Tom and I worked together for over eight years. We share the same fundamental beliefs about our profession and how we can work with attorneys and their clients in bringing their cases to the most favorable conclusions possible. I look forward to meeting those already working with Tom, and to working with many others who are looking for a trial consulting team and firm.
Since this is could be your introduction to me, I thought I’d use my first blog to summarize a critical takeaway and some observations I’ve garnered from being a trial consultant for over a decade and a communication professor for nearly the same amount of time. What I’ve learned is that this is not rocket science; I firmly believe many of the tried and true effective communication principles that have been with us for thousands of years still apply. People might want a new fancy name or brain research to prove it’s true, but all of that doesn’t diminish the fact that people pay attention to, process, understand, remember, and apply messages that: 1) Fit with their understanding of the way the world works (i.e., their world view), and 2) Hang together (they simply make sense when taken as a whole). Continue reading →
If you follow my blogs and publications, you know that one of my common phrases is, “a verdict is the product of what jurors choose to talk about during deliberations.” This is a critical point to consider during your case strategy development process. However, we can simplify this statement even more within the context of jury selection to something along the lines of, “a verdict is the product of who does the talking in deliberations.” Continue reading →