The “Poverty of Attention” at Trial


On a recent Armchair Expert podcast, host Dax Shepard paraphrased a quote by Herbert Simon, the gist being “…a wealth of information creates a poverty of attention…”  Wanting to get the quote just right, I looked it up and while the simple paraphrase is fantastic, there are too many gems in the full quote to not repeat it here:

“In an information-rich world, the wealth of information means a dearth of something else: a scarcity of whatever it is that information consumes. What information consumes is rather obvious: it consumes the attention of its recipients. Hence a wealth of information creates a poverty of attention and a need to allocate that attention efficiently among the overabundance of information sources that might consume it.”

Let’s parse this out for what it means for you as you prepare for and try your next case.

An important takeaway is that one’s attention is finite – it is bound by both one’s energy or motivation, and by one’s cognitive capability. A phrase we’ve repeated hundreds of times over the years is that jurors must be both “armed” and “motivated” – one without the other only invites problems.

The guest on the Armchair Expert was Gloria Mark, Ph.D., who has written a new book on attention. In her other works, she speaks to these two critical factors (armed and motivated) in her list of “attention states.” Her four attention types are:

  1. Focused: Engaged and challenged
  2. Rote: Engaged, but not at all challenged
  3. Boredom: Not engaged or challenged
  4. Frustrated: Challenged, but not engaged

Using our “armed” and “motivated” language, “Focused” is an excellent state for your jurors, with a big asterisk next to “challenged.” Using “challenged” instead of “armed” is a good reframing of our mantra. I like it because it makes it clear that it is not “bad” or “wrong” to present complex material to your jury. The advice to “talk to them like they’re fifth graders,” or “dumb it down,” has always roused my ire. Not only is it completely condescending, but if that’s how you feel, it will come across in how you talk with the jury. They’ll hear it and they’ll hate it.

Being “challenged” can be a great thing as it can increase attention. But what was the other critically important piece? They must also be engaged, aka “motivated.”  Look back at the other three categories: engaged, but not challenged? Not necessarily a bad place to be because their engagement (motivation) to pay attention remains. It’s most likely information that they already believe to be true about how the world works, people act, easy to understand issues, etc.

But the final two? Not engaged or challenged? Your jury is absolutely not retaining anything you’re saying – they could not care less about the information being presented. They’re wondering why they are there and whom they can blame for that.

Challenged but not engaged? They absolutely are not going to do the hard work of digging into the material to make it make sense. We saw this play out in a recent mock trial. The information was pretty dry (that’s putting it nicely), but to make matters worse, it was extremely technical. The only way someone was going to understand it was if they were motivated to do so AND if the material had been presented in a way that didn’t frustrate them. Again, it’s not that they “couldn’t” understand; it’s that it was presented as if they should get it. Jurors became angry about what they viewed as a lack of effort to actually teach them about the technology.

Let’s go back to the quote and an equally important takeaway: the necessity of “allocating” one’s attention efficiently among the overabundance of information sources. This speaks to another one of our mantras: If everything is important, nothing is important. Perhaps this is how “simplify your case” can get turned into “dumb it down.” There is a huge difference between these two pieces of advice (again, one of which we would never utter). Cognitive burnout is real. Overwhelming your jury is real. Too much information is a huge problem. Therefore, simplifying your case is critical. It’s not “dumbing it down,” but rather figuring out what jurors actually need to know, actually need to understand, and more critically, actually need to remember and then be able to re-articulate during deliberations.

 We have a very complex case going to trial in a few months. After a few mock jury exercises and various strategy sessions, our entire focus now is reviewing everything we learned and distilling it down to the 5 (or so) key “modules” or “things jurors must know and remember” as they decide the case.  It has been a painstaking process. Just like the writing process where the author has bled every word onto the page, cutting parts is like cutting off a limb. Every member of the trial team, the client, and each of us has our take on what makes the list. This debate has been arduous. However, it has also been rewarding, productive, and dare I say fun?

In an information-rich courtroom, attention is in peril. What can you do to make sure that jurors are motivated to see and understand your clear path forward?

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