I’ve just finished the book How We Decide by Jonah Lehrer and it has information that should be of interest to trial lawyers. Here are some passages from the book.
I’ve preached the importance of avoiding the spiral of nervousness leading to self study and then focusing only on ourself doing what we are doing instead ofthe communication you want to deliver. The result is a poor performance. Experience allows us to conduct ourselves without thinking about what we are doing. When we drive a car we don’t think about each step of pushing on the accelerator or moving the foot to the brake. It’s done automatically by us. In a court room we need to do the same. As the book points out, when a person gets nervous about performing they become extra self conscious. They start to focus on themselves trying to make sure they don’t make any mistakes. They began to think about things that should be done by "auto pilot." and the result is the move like a robot or freeze.
There is a great need for lawyers to simplify, to make communication clear and especially brief and to the point. The conscious brain can handle about seven pieces of data at any one moment. Some scientists believe that any problem with more then four distinct variables overwhelms the rational brain. Others believe that a person can consciously process somewhere between five and nice pieces of information at any given time. This means at trial we need to be simple, brief and clear. Our exhibits should communicate one idea at a time. Three points or claims of negligence are a maximum to present at time. Bullet point charts with multiple entries are confusing and worthless. Overwhelming the judge or jury with information is self defeating.
I have a friend who asks the jury about "excessive verdicts" and does it by referring to a huge multi million dollar result that was in the news. From there he goes on asking what their ideas are. This is a valid anchoring technique. In one study,researchers had people first adopt a random number such as the last two digits of their social security number and then asked about a numerical issue. They found the number influenced what figure the people ended up with. High random numbers resulted in high conclusions and vice versa. In one experiment known as the United Nations game, people were asked to guess the percentage of African countries inthe United Nations. However, before they guessed a roulette wheel was spun until it stopped on a number. People who saw a higher number guessed significantly higher numbers then those who saw a low number. This anchoring effect has been shown to have a strong impact on decisions in a variety of ways. For example, the purchase price on the car influences our thinking that a price which is discounted from the sticker price is reallya bargain. The rational brain has been show to have difficulty disregarding false, irrelevant or useless factual representations. While you know you are not supposed to consider these meaningless numbers, you can’t help it.
Another disadvantage of over trying a lawsuit by calling too many witnesses or providing too much information is that it creates problems. There is a problem with too much information causing wrong choices. MRI’s were hoped to provide information X Rays weren’t able to provide in considering back surgery. After MRI became available the number of diagnosis of abnormalities in backs skyrocketed as did surgery which wasn’t really needed in 1994 the new England Journal of Medicine did MRI’s on ninety eight people who had no back complaints at all. The images were sent to doctors who did not know the patient had no complaint. Two thirds of the doctors found serious problems in the images justifying surgery.
People with pre existing strong beliefs, prejudices and attitudes simply filter out contrary information. The prefrontal cortex is an information filter, blocking out disagreeable points of view. A hedgehog is a small mammal covered with spines. When attacked it has only one defense, to roll itself into a ball with spines pointed out. The fox on the other hand adjusts it’s strategy when threatened depending upon the circumstances. Some people are hedgehog thinkers, they simply reject all of the contrary information to their preexisting conclusions. Others are fox thinkers who consider the facts.