I was reading an academic article about persuasion science. I paused when I got to the end of a sentence. I wasn’t sure I understood it. After thinking about it for a few seconds, I was sure I hadn’t understood it. (Academic articles are frequently laced with jargon that the authors assume the readers understand. The sentences tend to be long and are packed with information.) I went back and read it again – this time more slowly. Then, I paused again. I understood it better than the first time I had read it, but still needed a little time to think about the subject. This is how most people process what they read. Students who don’t stop to think about what they have just read will likely do poorly on examinations because the ability to remember is closely linked to whether they understood and processed the information. Jurors listening to lawyers and witnesses don’t have the ability to press a pause button so they can think about what they just heard. This blog discusses how lawyers can present information so that jurors will be more likely to remember and be persuaded.

That which is learned is persuasive

There is science behind how people learn. The brain is not like a sponge that absorbs what is poured into it. Memories are formed only when information is understood and processed. Daniel T. Willingham is a professor of cognitive psychology at the University of Virginia and specializes in the science of education. He has written that “memories are formed as the residue of thought. You remember what you think about, but not every fleeting thought – only those matters to which you really devote some attention.” Once a memory is created, it can be accessed. Memories are treated by the brain as a reliable source to recognize previously-learned information as well as to interpret new information. What does this have to do with trial advocacy? Persuasion occurs when the brain creates a memory that is later recalled and relied on as true. The challenge, therefore, is to present your case so that jurors have time to think about what they have heard and seen.

Pause

The process of learning requires first that the listener understand. Understanding results only when the information presented can be related to something already familiar. In other words: an existing memory or understanding. The next step in learning is for the information to be processed. Processing requires time to think about what was just heard. If trial lawyers don’t allow jurors any time to process an important argument or a witness’s answer, the result might be a vague or defective recollection. Persuasion requires pausing. This is a challenge because silence in the courtroom feels uncomfortable. But during that silence, jurors are solidifying memory.

Refresh

Research has shown that people tend to believe the truth of a statement if they have previously heard it. It has the illusion of truth. The more often the statement is heard, the more likely that it will be perceived as true.  This is not necessarily a bad thing; rather, it is an essential aspect of how people can learn something that is true, then create a mental shortcut. It is theorized that the first time a statement is heard, it is embedded in memory, and when it is heard again, the previous exposure creates a feeling of familiarity. This familiarity, in turn, creates fluency, or ease of recognition, which has the feeling of truth. This is called the repetition truth effect.  During a trial, there are many opportunities to repeat important facts or themes.

Pausing allows jurors to think about what they just saw or heard.  Repetition is a way to refresh and strengthen a memory. Both are crucial to persuasion. In the 1920’s, Coca Cola coined a slogan, “Pause and Refresh.” That is a way for trial lawyers to remember these two important aspects of persuasion.

Heuristics are common understandings, which are mental shortcuts that spare the brain from expending energy on the hard mental work of analyzing facts and information. Many heuristics are truisms that people have decided are correct, regardless of whether they actually are correct. For example, the description of “a standard contract.” For the lay person, it likely brings to mind a written agreement that contains benign and accepted terms. In other words, nothing to be concerned about.

“Standard contract” was a punchline in my family. “It’s just a standard contract.” Shortly after my father began his law practice in 1955, he was retained by a burglar alarm company to create a contract for its customers to sign. In those days, a word processor was a typewriter; computers wouldn’t be in use for thirty years. When his client’s customers were presented with the typed contract, they would scrutinize it carefully for any unacceptable provisions. My father had an idea: he took the typed contract to a local printer who created an offset lithography of the document, and at the top, in large, ornate letters were the words, “Standard Contract.” Afterward, when his client (the businessman) presented the contract to prospective customers, he would say, “Oh, it’s just a standard contract.” And most didn’t hesitate to sign it.

My father died in 2008. And when my mother died in January 2015, I went to the mortuary to sign the necessary papers for her cremation. My heart was heavy and even though I scrutinized documents on a daily basis in my law practice, I did not look forward to this task. Although I was following her express wishes, these were the papers that would commit my mother’s remains to her final destination. This was not a routine transaction for me. The young woman employed by the mortuary gave me the contract; I read it carefully. The last paragraph said,

“I agree to indemnify, release and hold the Crematory, Funeral Home, their affiliates, agents, employees and assigns, harmless from any and all loss, damages, liability or causes of action (including attorneys’ fees and expenses of litigation) in connection with the cremation and disposition of the cremated remains of the Deceased . . . .”

I looked at the young woman and said, “Please strike this paragraph from the contract because I won’t agree to this. This is a business licensed by the State of California and is obligated to follow laws, regulations and standards. When professionals provide services, they are expected to stand by their services, and if they cause harm by mistakes or negligence, they do the right thing and compensate those who have been harmed. People come here at one of the worst times of their lives and expect to be treated fairly. They don’t scrutinize a contract like a lawyer to detect overreaching and unfairness. This isn’t acceptable. Strike the paragraph or I’ll have another mortuary transport my mother to their establishment to provide these services.”

Then, she said, “But sir, it’s a standard contract.”

When I insisted that the provision be stricken, she refused, and I walked out. I could see my father’s face, nodding and smiling at me. I was able to find another mortuary that did not require that I release, hold harmless and indemnify.

What does all this have to do with persuasion science? There are descriptive words and phrases that bypass scrutiny, and assumptions that people want to believe are true. Comedian Steven Colbert coined the word “truthiness” which is defined as “what you want the facts to be, as opposed to what the facts are. What feels like the right answer.” Subsequent academic research has actually analyzed many of the factors that contribute to the “truthiness effect,” and that will be discussed in a later Persuasion Science Summary. But the takeaway for trial lawyers is that if you want your message to be believed, the facts must be presented in a manner that jurors will want to be true, or logically seems to be true. In other words, couch your argument in terms of what many people already believe to be true.

In Persuasion Science for Trial Lawyers, I wrote about the research that explains how the brain decides whether to engage in critical thinking or jump to a conclusion based on prior experience, bias or stereotyping. I explored how we might be able to present facts to juries so that their brains would not refuse to consider them. In Chapter 14, I quoted Colin Firth, the actor who funded a serious academic study that he humorously described as designed “to find out what was biologically wrong with people who don’t agree with me.” The study results did not find that there was anything biologically “wrong” but did confirm that there are biological differences in brain structure that account for one’s inclination to be liberal or conservative. There is new research that adds to the explanation of why seemingly intelligent people see the world so differently. Those of us who are confident that we are perceiving the world as it really is become very frustrated with those who obviously have a distorted view. (Don’t take this last sentence completely seriously; it’s my attempt at sarcasm and humor.)

In Persuasion Science, I wrote about the dual-processing theories of “thinking, fast and slow” but soon-to-be-published brain research by UCLA psychology professor Matthew D. Lieberman goes beyond the fact of the phenomenon, and concludes that there is a “gestalt” area of the brain where perceptions of reality reside. Gestalt was a German school of perceptual psychology whose motto was, “The whole is greater than the sum of the parts.” The approach focused on how the human mind integrates elements of the world into meaningful groupings. The gestalt cortex is located behind the ear and creates a naïve realism – defined as the conviction that one sees reality objectively, exactly as it is. When others describe a different reality, it can serve as an existential threat to our own contact with reality and often leads to anger and suspicion about the other person. The apparent process by which the gestalt cortex makes an immediate assessment of facts or sensory information include “coherence, effortlessness, experience, and inhibition of alternatives.” This theory is an explanation that one’s worldview is not merely philosophical but rather, embedded in the brain.

What does this have to do with trials and jury persuasion?

No amount of persuasion can change a person’s naïve realism. But this research expands our understanding of the keys to persuasion. It requires us to focus on presenting evidence that can be immediately perceived as consistent with experience and able to be understood without effort. In this way, our presentations can avoid being rejected as contrary to reality. How? First, by identifying a common experience and matching that experience with what happened to our client. Second, by presenting our facts so that they can be easily understood. Both of these approaches will be discussed in greater detail in a future Persuasion Science Summary.

© John P. Blumberg, 2022

Huh? The funny part is the last sentence that claims that the article simplifies the “plethora of theoretical notions.” To other researchers of decision science, the above-quoted abstract might make perfect sense, but most others will wince and move on to something that doesn’t require the expenditure of a lot of cognitive reserves. There are two important concepts at play here: overly-complicated explanations, and the natural inclination to avoid hard mental work. I wrote about both in Persuasion Science for Trial Lawyers and continue to study the ways that the brain receives, rejects and modifies what the ears and eyes send to it. Although decision science is of critical importance to lawyers, the social science literature on the subject is not written for lawyers. And even though most lawyers probably have the intellectual ability to understand it, they first have to look up the references, then laboriously study the concepts and theories that are known to social scientists but not others. For example, when lawyers talk about Palsgraf, other lawyers know that the reference is to foreseeability. Non-lawyers would not be expected to know who poor Mrs. Palsgraf was.

And that’s where I hope to create a bridge between the obfuscating language of social scientists and the inquiring minds of trial lawyers. I can be the interpreter, translating the social science of how decisions are made to the work that we must do in representing our clients. Take the article abstract that began this discussion. It’s really pretty interesting. Each of the descriptions was explored in Persuasion Science for Trial Lawyers. Each theory is a little different. So, I would translate the above abstract as follows: People are bombarded with an enormous amount of sensory input and either can’t or won’t pay close attention and carefully analyze everything. Some information is disregarded, some is scrutinized, and some is interpreted based on mental shortcuts. There are different theories of how the brain processes information and arrives at judgments. Each theory was an important advance, and the authors of this study have examined all of them and constructed a “unimodel” that combines these theories so that they can be seen in context. It’s like the story of the blind men who encounter an elephant and can only describe that part that each is feeling. It is only when all of them combine their perceptions that the nature of the animal is better understood.

What’s the point?

It turns out that being an advocate is a lot harder than we would like to think. Judges and jurors filter information in many different ways, and we must understand what the filters are and how they work. Otherwise, what might seem to be a brilliant presentation of facts is rejected. The only solution is to try to understand how the brain works. Social scientists continue to learn about how brains receive or reject information. I’ll translate what is important for trial lawyers to know and share it with you.

© John P. Blumberg, 2022