We are living through a particularly difficult time for science. My colleague, Jill, has written in the past about the challenges of persuading juries in a post-trust/post-fact ecosystem. The politicization of fact is creating a notable backlash against expertise. Nowhere is this challenge more pronounced for trial teams than in cases that rely on scientific and technical data. This post-trust/post-fact ecosystem presents a serious threat to our ability to come to accurate conclusions that require some understanding of scientific or technical information.
A 2017 National Academies Press study cuts to the core of the issue, noting that only 16% of Americans say they “keep up” with science, and an even smaller number can explain the scientific method. This same study indicates that most people only attempt to understand scientific consensus on something when it directly impacts a personal decision, and even then, they tend to rely on a form of confirmation bias – cherry picking science that aligns with their worldview. In other words, science is great when it tells us what we want to hear. If science is contrary to our desired outcomes, we tend to place it into a frame that makes it easier for us to rationalize ignoring it. A few of the issues we face when trying to use science as a persuasive technique include:
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- Projection. When assessing large amounts of complex information, we take shortcuts to make sense of it. This is especially the case when there is complex and contradictory evidence to reconcile. Often people project their personal, political, economic, or safety concerns onto scientific information. This may lead the audience to substitute their individual experiences for empirics. The previously mentioned study by the National Academies Press notes that most people’s understanding of science begins with their personal experience – “a combination of expectations, knowledge, skills, beliefs, and values that are in turn shaped by broader social, political, and economic influences.” While this conclusion isn’t surprising, it does highlight the problem of hoping science lends objectivity to decision-making.
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- Inherent dislike of uncertainty. Multiple studies demonstrate that people simply do not like to act when they are uncertain. The gravity of the situation increases this discomfort. Unfortunately, scientists tend to not to want to speak in absolutes, and as a result, people are slow to internalize scientific data and act on it when making decisions. When decisions must be made with uncertain information, people tend to act on the least vague alternative, increasing the importance of making sure audiences have enough information to feel satisfied when they act, but not so much data that they feel paralyzed.
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- The communicator’s bias. There is a tendency for the person communicating the complex idea to have too little faith in the receiver, believing the audience is too uneducated, or lack the ability to comprehend complex technical concepts. As a result, we may try to avoid engaging the complex idea, leaving a void to be filled by our opponent. Or, sometimes we encounter the opposite assumption – a tendency to have too much faith in the audience’s knowledge, only to discover too late that the message fails to land because we overestimated the audience’s background and/or motivation to understand.
Obviously, this is not great news if your case requires understanding of scientific or technical evidence. Time after time, we see mock juries encounter these struggles and derailing deliberations as they chase tangents and try to make sense of incredibly difficult data. It’s a scary prospect to place millions, or billions, in damages on the ability of a jury to comprehend and apply scientific or technical data to a legal decision. However, our jury research has taught us there are some commonsense strategies that can help reduce the concerns and make even the most complicated topics feel accessible (even when they are not).
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- Resist the impulse to overeducate the jury. Especially in cases where scientific data is an important and unavoidable factor, reduce the number of things that jurors need to remember. Too deep of a dive into dense data leads jurors to tune out as they reach the limits of their cognitive load. Even when they are trying to pay attention, jurors may not feel like they can apply what was most important during deliberations. One solution to this problem is to make it very clear, orally, visually, and repetitively, what the takeaway from complex data needs to be. In its simplest form, tell jurors “this information will be on the test,” and make it clear how key information factors in to making their decision.
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- Remember that sequencing matters. As the National Academies Press research cited above indicates, inundating a jury with science is not synonymous with persuasion. Jurors are persuaded by technical/scientific evidence when they think it aligns with their own beliefs. This suggests that sequencing is vital in using science to overcome jurors’ resistance. Framing science as affirming common sense rather than being the source of it helps jurors accept complex information by suggesting it was something they intuitively knew. This strategy helps to flip the risks that jurors are projecting their own worldview onto the science by validating their assumptions with science. For example, jurors don’t need a scientific study to tell them fire is hot, but science would support that commonsense conclusion. See, jurors, you’re scientists! It is a subtle tactic, but one that can be incredibly effective in creating buy-in to complex ideas.
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- Think narratively. While narrative and anecdotal strategies get a bad name in scientific circles, research shows it is an invaluable tool in relating science to nonexpert audiences. Non-experts are already accustomed to receiving their technical information through media sources that rely on a narrative format to hold their audience’s attention. This means your jurors are already primed to accept information presented less technically and more narratively. Research from 2014 conducted by the National Academies of Science suggest that infusing science with narrative explanations can dramatically increase acceptance of a complex idea. Narratives are persuasive because they can take general experiences and filter them to specific, relatable context. This research found that infusing complex technical and scientific ideas with narrative explanations builds audience trust, makes the concepts more difficult to dispute, and helps audiences better understand scale when assessing competing ideas.
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Ironically, science is helping us better understand how to be persuasive when discussing science. Integrating these simple techniques into your case-theme development can help transform the technical elements of your case from a liability to a strength.
