By Dr. Ken Broda Bahm:
There is a disconnect between awareness and reality when it comes to the level of information presented in complex civil litigation. On the one hand, experienced litigators know that jurors can only absorb so much, and will be deciding a case based on the peaks and not the nooks and valleys you give them. But, too often, that understanding is shattered in the face of voluminous exhibit and “will call” lists. In broad terms, we understand that more isn’t necessarily better, but in practical terms, knowing what to limit can be very difficult.
A classic study (Bastardi & Shafir, 1998) confirms our intuition that more information doesn’t necessarily help decision making and can even lead to worse results. The Princeton and Stanford researchers manipulated the level of information received in a loan application situation, and demonstrated a distracting effect once they complicated the scenario. Noting this as “a troubling blind spot in the way we make decisions,” psychologist Ron Friedman wrote recently in the Glue blog for Psychology Today, the study “highlights the downside of having a sea of information available at our fingertips.” Yet it is precisely that sea that most litigators face in the space between the end of discovery and the beginning of trial. As you might guess, dumping it all on the judge, arbitrator or jury isn’t the best option given that additional data can sometimes dilute the rationality of decision making. It is quite a broad topic to consider how to practically (and responsibly) limit this information at trial. But before the trial comes the mock trial. So this post takes a look at the study and recommends some practical ways to limit the amount of information during pretrial research and pare down the complexity prior to trial.
The Study: More Information, Less Rationality
The researchers, Anthony Bastardi and Eldar Shafir (1998) tested the information overload hypothesis by comparing two groups in their review of a single loan application. Both groups heard that an otherwise qualified loan applicant hadn’t paid his credit card debt in the last three months. Group 1 heard that this was a $5,000 debt. Group 2 heard that the exact amount of the debt was uncertain, but that it was either $5,000 or $25,000. Participants then had the option to approve, deny or get additional information. Most members of the second group, understandably, decided to wait on the additional information. When they did, they were told that it turned out the applicant’s debt was $5,000, the same amount the first group heard.
But even though they ended up with the same information — a loan applicant with an unpaid $5,000 balance — they made radically different decisions. Those in Group 1 who heard just the simple story denied the loan in 71 percent of the cases. In Group 2, however, they rejected in only 21 percent of the cases. In explaining why that second group accepted the loan at three times the rate, Friedman notes the possibility of a “cliffhanger” effect where the initially uncertain or unclear information “raises a metaphorical red flag and says, ‘Pay attention. This could be important.'”
Of course, there is another explanation for the result as well: the contrast effect. When participants heard that the applicant owed “only” $5,000, rather than the $25,000 he might have owed, it seemed like a strong point in the applicant’s favor, and it might have felt unfair to deny the application in the face of this favorable information. It might have also felt cognitively inconsistent to have delayed the decision in order to get additional information, to only deny the application after receiving information that was as good as it could have been in that scenario. But that may be the point: The additional information simply complicated the decision making by creating the opportunity for more biases to be brought into play. At a rational level, participants probably should have said, “Well, the debt is at least $5,000, so that is good enough reason for a denial.” But the additional information, and the possibility of an even greater debt, just served to take their evaluation down other paths.
Avoiding TMI in Pretrial Research
The same can happen in trial, of course. The more data decision makers have to react to, the more nuanced and complicated will be their reactions. From a purely logical standpoint, advocates will sometimes think, “If I have five great arguments for my side, then adding one more ‘good, but not great’ argument certainly can’t hurt.” But our reaction is, “Oh yes, it can hurt.” In arguments to the bench, for example, it may mean that your judge spends all her time picking apart that sixth argument and, as a result, talks herself into a more negative view of your case. The same can happen in deliberations: If the additional information just serves as a platform for a discussion that runs against you, then the net effect is to worsen your case.
The calculation, of course, will be unique to each case. Information that is superfluous is one case might be absolutely essential in another. But one area where trial teams can, and certainly should, limit the information is during a mock trial. Because the research quite often takes place in only a day, or even less, cutting back is unavoidable. But rather than this being a limit on the usefulness of the mock trial, that act of paring things down can be one of the mock trial’s most important strengths. It is a chance to see what matters most, and what you learn in that context can spill over to trial. So here are a few ideas for cutting back on the level of detail in a mock trial.
Exhibits: Try It With 20. We’ve conducted mock trials on cases involving just a handful of exhibits, and other cases involving tens of thousands of exhibits. But in nearly all cases, we ask each party to limit themselves to the twenty most important documents. We’ll typically provide those in individual notebooks so each mock juror can give them serious attention, but when the set is limited to just those we expect the panel to seek out and argue over, that leads to more focus and avoids document overkill.
Witnesses: Test Them in 4 Minutes. When a trial team is preparing witness testimony for use in a mock trial, they often face the daunting task of slimming down a day-long video-recorded deposition into a short snippet. How short? Our experience is “shorter than you would think.” There is some research (Zunin, 1972), for example, showing that our first impressions become solidified after about only four minutes of exposure to a stranger. In light of that, you don’t need the witness to convey all the key areas of testimony, since that can be summarized by the attorney anyway. What you need is just a small slice of relevant testimony: That will be enough for the mock jurors to form a durable credibility assessment.
Summaries: Trim Them to 45 Minutes. This is the hard part. Since your actual case will unfold over a period of days or even weeks, how do you squeeze it down to a size that can be reliably tested in a mock trial? The answer is provided in part by mock jurors’ attention spans. Listening to just one speaker, even a good speaker, can be taxing. After about 40 to 45 minutes, we’ve noted that maintaining attention gets more and more difficult for mock jurors. Aside from that limit, however, keeping it to three-quarters of an hour is also a way to keep you focused on the central parts of the story and not the extraneous details.
Verdict Forms: Keep It to a Couple Pages. You want to be realistic in the style of verdict and the questions that you test, but at the same time, you will see more productive and less frustrating deliberations if the mock jurors are reacting to just a handful of the critical questions. So thoughtful edits — combining some parties, or shortening the path of causation, for example — can often prevent your panels from getting bogged down and make sure the discussions you see are discussions on the issues that matter most to your case.
The information you test in the mock trial isn’t the whole trial, but it is the core. And mock trials don’t predict real trial results, but chances are that participants in both settings will be reacting more to the broad outlines of the story than to the individual details. When we are fortunate enough to have done a mock trial and an actual trial for the same case, it is uncanny how often the final interview in the mock trial and the post-verdict interview in the real trial essentially boil down to the same discussion. What that means is that somehow the actual jurors cut through all the additional information they heard in the real trial in order to get back to that same core story tested in the mock trial. So once you’ve found your core, as much as possible you should try to stick with that.
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Other Posts on Comprehension:
- Complex Case? Beware of “Low Effort Thinkers”
- Time Your Arguments to the Judge’s Lunch Breaks (and Adapt to All Decision Makers’ “Cognitive Load”)
- Remember, Jurors Are Always Forgetting
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Bastardi A, & Shafir E (1998). On the pursuit and misuse of useless information. Journal of personality and social psychology, 75 (1), 19-32 PMID: 9686449
Image Credit: Saad Faruque, Flickr Creative Commons