Julie Campanini
BridgeTower Media Newswires
There are currently 181 recognized cognitive biases (which gives me a lot to write about!), but the subset I want to focus on here involves the way we notice things already primed in our memories or repeated often when we are faced with too much information.
These cognitive biases, sometimes referred to as heuristics or shortcuts, are not all bad. Our brains can’t process everything in a meaningful way without these efficiencies. But it is important to recognize these and understand how they can help or hurt you in the context of litigation.
I have worked on some cases recently in which the attorneys would have been better served by understanding how this system works.
There is a lot going on in our minds every second of the day that helps (or hinders) us in making judgments, decisions and evaluations. Some of the ways our brains process this information overload include: the availability heuristic, the mere exposure effect, the attentional bias effect, the illusory truth effect — you see where I am going.
When we are faced with a lot of information at once, our brains take shortcuts to decide what is important. This happens automatically. So how can you, as counsel, prepare for this and harness it to your benefit?
When people are faced with too much information quickly and then forced to make a decision (such as in trial), the brain seeks out the familiar, the most recent and the most repeated information. Repeating something several times makes jurors think it is important, true and familiar; themes can help accomplish this. Think of media coverage: Several news stories about a kidnapping make the brain think kidnapping is common when it is statistically not; this information just happens to be top of mind.
The most familiar information is the most important and accessible to the brain. While these may seem obvious stated in this way, litigators are often resistant to incorporating these principles into their practice. In other words, why fight the brain’s way of organizing and filtering information? Work with the brain for better success.
Let’s examine what is called the mere exposure effect. This deals with people identifying with information simply because they are familiar with it. Information and ideas become more believable when we are familiar with them.
For example, in a sexual harassment case, a plaintiff might say “where there’s smoke, there’s fire” as a way to use some “smoke” to get jurors to conclude that there is something of substance in the evidence. This resonates with jurors because it is something people hear often during their lives, making it familiar. The familiarity with this concept helps jurors organize the evidence and sexual harassment story in a way that feels comfortable and satisfying to them; therefore, it is not a stretch for them to buy into the story and believe that all the smoke amounts to a fire.
Think about it this way: If the brain must methodically categorize, sort through and organize evidence to make a determination or resort to the familiar “where there’s smoke there’s fire,” the brain will choose the path of least resistance and resort to using what it already “knows.” The phrase takes on a truthfulness even when it might not be true in a particular case.
In the same example of a sexual harassment case, the availability heuristic also applies. This describes that when information is more available, it takes on increased importance.
For example, if a juror personally knows three women who were sexually harassed or assaulted, that information will be top-of-mind and readily available, and, therefore, more importance will be ascribed to it.
This leads them to believe “this always happens,” and this is a common occurrence and “more than likely happened” in the case before them. (To someone who doesn’t know anyone who has been sexually harassed or assaulted, sexual harassment might seem rare.)
In the context of litigation, if you have a juror sitting on your panel who has knowledge of or experience with sexual harassment, you are potentially in trouble if you are the defendant; if you are the plaintiff, you might benefit because these examples will be available and top-of-mind to these jurors.
When faced with a lot of information on the case (many details, text messages, emails, conflicting testimony, etc.), the brain takes a shortcut to whatever thoughts are most available: Sexual harassment is common, ergo this person was sexually harassed. This is why attitudes and experiences matter much more than demographics.
Given the current rash of high-profile sexual harassment claims and stories, jurors will be primed to believe this happens all the time and is common, lending credibility to “where there’s smoke, there’s fire.”
When putting together an opening, counsel should consider the ways in which the brain processes information and what kind of shortcuts might come into play.
Let’s look at another, more specific example of using some of these cognitive biases when the brain must slop through information overload: themes.
People who have worked with me know that I am a stickler for themes and storytelling. I believe inundating jurors with data and a long list of disorganized and unconnected facts creates confusion. Jurors prefer organized stories; indeed, we are all brought up with stories from a very young age and it is a familiar way to organize information.
By using themes, repeating important points throughout the case, and tying ideas into familiar concepts, we can lean into what the brain is already doing. In a commercial case, one party might employ themes such as “greed” and “money grabbing” as a way of latching onto the familiar in an otherwise complex story when trying to explain the other side’s behaviors. These catch phrases are universally known and invoke concepts that are simple and available and tell a story.
Jurors hear stories on the news every day about this and hear about corporate greed as a means to explain most of what motivates a company to act. Turning what jurors readily recall and is familiar into a workable theme to help explain your story is a smart way to get jurors on board early and easily. It is the most efficient way to cut through the noise.
There is both a science and an art in litigating. The science comes into how to package a story that appeals to the widest audience on the panel, and the art is the delivery, the engagement and the ability to get jurors to trust you.
Information overload is a given in trial. Jurors are usually unfamiliar with the subject matter and the law and the legal process — that is a lot to take in. Don’t burden them further. Anticipate the shortcuts the brain might use (or consult an expert), make your information available and familiar, and lean into the brain’s shortcuts.
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Julie Campanini is a senior litigation consultant with Magna Legal Services. She can be contacted at jcampanini@magnals.com.
