David W. Mykel published an article in March that discussed the importance of visual evidence. He says that almost 70% of the population are visual learners with some 49% of the people getting their information from the internet. He suggests that we are dealing with a different kind of audience, one that embraces technology. People spend a considerable amount of time in front of a television and online. We should consider how we are presenting our evidence in court. While PowerPoint can be abused and exhibits overdone, we err too often on the side of not accomodating the need of so many jurors to see it before they believe it. I recommend simple focus studies where the only issue is a review of the proposed exhibits you intend to use and the manner you plan on using to do so.
The Harvard Business Review published an article “The Visualization Trap” in which they discussed the well-known phenomenon of hind sight bias – the belief that past outcomes were predicable. In a study participants were given written diagrams and a description of how an accident occurred. Another group was given a computer animation of the accident. The groups were surveyed as to how predicable the result was from the information given them.
The group that watched the animation was more than two times confident the outcome was predicable than the other group. The animation group was even more confident than actual witnesses who were asked if they had seen it coming. When subjects were given photographs to go through at their own speed of a traffic situation they were surveyed on the same issue with another group who had seen an animation of the same situation. The results, regarding hind sight bias, were the same. Researchers concluded that movement is a critical factor in creating the effect.
Computer animation can purport to make sense out of highly complex information and influence conclusions about predictability. Today, we can create animations much more cheaply than in the past. Simple animations can make a large difference in perception. A series of photos moved one by one with illustrations and labeling can be more effective that a still photo in that regard. Think about this in cases where high sight bias could be an issue and in cases where you need to make something simple.
In his book The Social Animal, David Brooks offers insights as to how the human mind works. One thing he points out is that in persuasion, instead of telling the other person what you are offering, ask them what they want. Ask what makes them unhappy, keeps them up at night and what part of their job they like. Your message should be: “It’s all about you and not about me.” Have you considered asking a jury panel what they would want to have presented on an issue in your case. For example, where credibility is a critical issue, “How do you tell when someone is not tellling the truth? What would you want to know about that issue in making up your mind?” Or, perhaps “What evidence would you want to have in order to decide……?” Certainly, spending time talking about the juror is more rapport building than lecturing them about your case.
Brooks also writes about he influence of “priming” on our thought processes. When subjects were given a test with a series of words vaguely related to elderly people, after the test, researchers observed them moving more slowly.
When subjects were given a test with a series of words relating to aggressive behavior and annoying conduct, they found, afterwards, the subjects were much quicker to interrupt someone and act more rudely. Likewise, a group who was given stories of high achievement performed at a higher level on tests than those given stories about failure.
In another situation involving priming, a Brunswick pool table store did an experiment in sales. One week the sales people showed customers the lowest priced tables first and then the more expensive. The next week, they did the opposite. They showed the most expensive tables first and then the lower priced ones. The result was that the first week customers spent an average of one half of what customers spent the second week. The customers who were first shown high priced pool tables felt the prices for the lower priced tables were more of a “bargain” due to the previous prices by comparison. They same thing has been done by successful real estate sales people in showing more expensive homes first.
Have you considered the influence on the jury by discussing large numbered things in comparison to your request for damages? What about asking about excessive verdicts using examples of very large verdicts? It raises questions, as well, about suggesting a verdict number to the jury in voir dire or opening as a priming effect. Think about this in connection with the idea of framing. As an example, a surgeon who tells patients there is a 15% failure rate communicates something different than when he tells them there is an 85% success rate. Trial lawyers are supposed to be word masters. We need to study these important ideas about how we express ourselves during trial.