The Implications of Jurors’ Memories v. Experiences at Trial


*Previously published our Jury Economics column in the December 2019 issue of the King County Bar Bulletin.

By Thomas M. O’Toole, Ph.D. and Kevin R. Boully, Ph.D.

Do you pursue happiness in each moment or live a life to be proud of when you someday look back on it?  What does your preference say about how you make decisions? Nobel Prize winning psychologist Daniel Kahneman has repeatedly discussed an important discovery of human decision-making he describes as the realization of the two selves that exist in each of us. His point tackles the fundamental reality of how we experience and understand the world around us and is a critical component applied to jury economics. Kahneman describes the two selves as the experiencing self and the remembering self, and the critical distinction between the two is time.

Consider the following example. Joe, a die-hard Seattle Sounders fan, buys tickets to the MLS Cup game against Toronto for himself and his girlfriend of three years. It is the first time the Sounders have played for the Cup in Seattle, and Joe could not possibly be more excited. He takes his girlfriend to the game and it is everything he hoped it would be. The Sounders win in exciting fashion and the stadium erupts in celebration. Joe is as happy as he has ever been. As he is leaving the stadium, Joe’s girlfriend breaks the news that she wants to leave him and has been seeing another man for the last month. Joe is devastated. For the next few months, Joe will tell his friends and family that it was the worst experience he has ever had at a sporting event.

This example highlights the difference between the experiencing self and the remembering self. For months, Joe will remember this as the worst sporting experience of his life, yet up until the moment that his girlfriend announced she was leaving him, he truly believed he was experiencing the greatest sporting event of his life. The time he spent experiencing the event as it happened is overwhelmed by the human tendency to look back on that experience and place its meaning in the context of a much longer timeline – this year, the decade, or Joe’s entire life. Perhaps even more important, when remembering the event, Joe focused only on particular moments of that event, and allowed those moments to define how he remembers the entire event.

This distinction is not limited to the processing of extraordinary events such as Joe getting dumped at the championship game. These distinctions happen with everyday processing because this is how our brain works. When it comes to making decisions that require the consideration of events over the course of days or weeks (i.e. jury trials), our recollection of events is much more important than our experience of those events. The distinction is also important because there are individual differences in the extent to which people will default to decision making ‘for the moment’ or ‘for the long haul’ – a distinction that has also been correlated to the difference between happiness (in moments) and satisfaction (in lifespans).

This is important for attorneys because too often, attorneys prioritize trial presentation to jurors’ experiencing self rather than the remembering self. Attorneys often believe once jurors receive (i.e. experience) the relevant facts and arguments, they will be equipped to reach the desired decision. But jurors do not experience the ‘facts’ and ‘arguments’ when they get to deliberations. They remember them in an entirely differently way than they experienced them the first time – and the remembering version of the facts leads to a different perception of the issues than the experienced version. Instead of considering this as a gap between the experienced evidence and the remembered evidence, jury economics views it as a bridge – an opportunity for advocates to link the remembered version of the case to the way it is presented in trial.

To put this a different way, jury economics teaches us that trial is fundamentally a battle of salience – a battle for the remembering self and the way people recall and reflect on past experiences in the context of a longer timeframe. Research studies suggest that by the time jurors reach deliberations, they will remember as little as 10% of what they heard over the course of trial. That means jurors may forget 90% of what they learned over the course of trial by the time they are asked to make decisions that apply the ‘facts’ and the law. The real task for attorneys is to affect what jurors remember most, how they remember it, and how doing so can contribute to attorneys’ ultimate goal of persuasion.

Keys to winning the battle for the remembering self lie in each of the three cornerstones of jury economics (i.e. egocentric, economical, and symbolic).

The Egocentric Memory

First, jurors are much more likely to remember egocentric information, meaning information that connects to some parts of their lives, whether it is consistent with their experiences or reaffirms beliefs they hold about the world. Jurors who have personally experienced discrimination in the workplace are more likely to favor a plaintiff in an employment discrimination case because they are much more likely to remember the facts in the case that resemble their own personal experience with discrimination. Consequently, when this juror reaches deliberations and remembers the case, the plaintiff’s claims stand out as more real or true to the juror in question. This is an extreme example, but this also happens in more subtle ways. For example, a juror who always reads a product manual before using a newly purchased product is more likely to criticize a plaintiff who was injured by a product, but failed to read the warnings and instructions before the injury occurred. This fact about the plaintiff speaks to a common practice and experience of the juror, making it more memorable and consequently, more relevant in deliberations. Personal salience is the battlefield and adapting your messages to your seated jurors’ experiences is even more important.

The Experience Economy     

Economic decision-making stems from the premise that jurors – as human beings – are cognitive misers who prefer shortcuts in order to simplify decision making. It is difficult to talk about jury economics without referencing Kahneman’s famous quote that, “When faced with a difficult question, we often answer an easier one instead, usually without noticing the substitution.” Few people enjoy making complex decisions and instead look for overly simplistic cues as to which decision to make, often without considering the reliability of those cues. A person on a diet may struggle at the grocery store to compare and contrast all of the snack options available to them. Simple phrases on the packaging such as “no trans fats” or “all natural” may provide the shortcut for determining what snacks represent healthy options, even when those phrases typically provide little to no value in making healthy decisions about snacks. The economy of the shortcut allows a decision-maker to be happy with their decision in the moment (“This feels right”) but may have little to do with their satisfaction with that decision considering the test of time (“But does it fit with my overall view of the right decision?”). Attorneys are likely best positioned when they provide both a simple way to experience a positive feeling for the desired decision as well as evidence-based reasons for why the decision feels right with greater reflection. These two-headed arguments are an important part of addressing jurors’ economical decision making.

The Story Remembered

Finally, jurors are more likely to use arguments and evidence consistent with a familiar or dominant narrative — facts and evidence that symbolize values and ideas that are both important to them and can be constructed and recalled as a story. Consider the classic stories recounted in your family and how often the story told deviates from what ‘actually happened’ and evolves over time. That is the remembering self forming and reforming the experienced events. Consider a common litigation story such as an insurance company that goes silent for four months before finally issuing a generic letter to the insured denying the claim for coverage. The four-month delay and the generic letter are common symbols of what many tend to think about insurance companies: that they are uncaring corporations that look for any reason to deny coverage because all they care about is profit. That narrative will be easier to recall and more likely to morph from the actual evidence into the archetype that a juror’s remembering self can recognize and repeat. This is why it is so important for attorneys to identify potential symbolic facts in their case, meaning facts that trigger dominant narratives, because these are the facts that will stand out most to jurors when they deliberate.

These are just a few examples of how attorneys should consider egocentric, economical, and symbolic decision-making when crafting their trial presentation strategies. Trial presentation is not and cannot be simply about getting the information out there. We are dealing with the human brain and human decision-making in an age of short attention spans and information overload. Today’s trials are now won by capturing jurors’ attention and making key information memorable through an understanding of how that process works not in the minds of presenting attorneys, but in the minds of jurors themselves. This is why trial is fundamentally a battle of salience and the best presentation strategies focus on controlling the 10% that the jurors will remember when they reach deliberations. Jury economics offers a practical framework for accomplishing this.

Kevin Boully is a consultant at Persuasion Strategies.


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