By Dr. Ken Broda Bahm:
For once, a social science concept that comes with an easy to understand label! “Low effort thinking” refers to a mental approach or habit that serves as a short-cut in lieu of a more systematic or careful analysis. In the spirit of full disclosure, though, the concept is sometimes dressed up in the fancier name of “heuristics” (it is a job protection for us social scientists not to make the ideas too clear). In a courtroom, though, low effort thinking can play a very clear role. Relying on a stereotype, for example, requires less effort than analyzing the specific case. The juror who doesn’t delve into details and relies instead on a belief that “big companies are dishonest” is engaged in low effort thinking. It can be a boon if you represent the side that benefits more from these short-cuts. But more often, and particularly in the complicated case, low effort thinking is a barrier between your jury and a full understanding of your case.
So where do we find these low effort thinkers? According to a study released last month (Eidelman et al., 2012), the answer is political: Those engaged in low effort thinking are more likely to report conservative political views. Now, before any right-leaning readers get their dander up, its important to note the direction of the relationship. The researchers did not test conservatives and discover low effort thinking. Instead, they did the reverse: They created circumstances designed to “disengage effortful, deliberative thought” — for example through instructions, time pressure, manipulations to cognitive load, and even alcohol impairment — and found that under these circumstances, the study participants tended to favor and express more conservative attitudes. “Political conservatism,” the authors conclude, “may be a process consequence of low effort thought.”
So when your case requires high effort thought, is it wise to apply a political litmus test? As much as that would be simple, I’m afraid that would itself constitute low effort thought (as would the whole strain of jury selection based on demographics). Striking simply on the basis of politics can also be impractical in the courtroom since party affiliation and voting behavior can be factors that you don’t know and are unable to ask. Better to target the condition of fostering low effort thinking itself.
The Legal Risks of Low Effort Thinking
The gist of the Eidelman study is to point out that when individuals are in circumstances that encourage easy and quick thinking, they prefer more simplistic and formulaic opinions. So the question for litigators is, “what circumstances in trial lead jurors to short-cut thinking?” The complexity of the case itself can be a problem. The law, the facts, and the entire process is complicated to jurors, and lawyers can often overestimate both the jurors’ ability and motivation to understand the case.
After a mistrial in a recent New York ballot fraud case, one of the deadlocked jurors commented, “It was too much,” referring to the volume and complexity of counts, “and made it less likely we could all agree. If they do it again, they may want to think about that.” It is only natural for legal cases to be complex, and oversimplifying can be as much a problem as overcomplicating: A jury won’t forgive you for omitting important detail or for condescending. Necessary complexity obviously needs to be part of the case. But in that context, the challenge is to identify the potential juror who is just looking for an easy route to a quick conclusion. For some cases – more often for defendants I think, but also for plaintiffs – you need to gear your selection process in a way that finds and favors those who are willing to set aside the quick and easy answer, and to instead roll up their sleeves and dig into the facts.
Voir Dire for a Potential Juror’s “Need for Cognition”
Need for cognition (Cacioppo & Petty, 1982) is the opposite of low effort thinking. It targets “the tendency for an individual to engage in and enjoy thinking.” Lawyers might like to think that should include everyone, but there are pretty big differences within the population. Some people like to work through an issue, while others like the simplicity and the order of a snap judgment. Those in the gallery who are carrying mystery novels or crossword and sudoku puzzles may well have a higher than average need for cognition. Or drawing from the Eidelman study, we could think that those with conservative bumper stickers might be lower in that department. Occupation and education might also tell you something about the individual juror’s experience and approach to detail. However, it is always more direct and reliable if you can actually go after the attitude itself.
Thankfully, there is a widely used and validated Need for Cognition Scale. It is an 18-item measure, but here are ten agree/disagree items drawn from the scale that I’ve included in juror questionnaires when facing a particularly complicated case:
- I would prefer complex to simple problems.
- I like to have the responsibility of handling a situation that requires a lot of thinking.
- I try to anticipate and avoid situations where there is likely a chance I will have to think in depth.
- I prefer to think about small, daily projects to long-term ones.
- I like tasks that require little thought once I’ve learned them.
- I really enjoy a task that involves coming up with new solutions to problems.
- Learning new ways to think doesn’t excite me very much.
- I would prefer a task that is intellectual, difficult, and important to one that is somewhat important, but does not require much thought.
- I feel relief rather than satisfaction after completing a task that required a lot of mental effort.
- I usually end up deliberating about issues even when they do not affect me personally.
When using these items to target low effort thinkers, you want to focus strikes on those who disagree with 1, 2, 6, 8, and 10 and agree with the rest. Assessing your pool though a scale like this isn’t necessarily “low effort” but it can be very effective in helping you shape your panel.
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Other Posts on Juror Comprehension:
- Mind the Gap: Stop Jurors From Jumping Straight From Liability to Damages
- Know the Limits of Limiting Instructions (But Don’t Necessarily Discard the Instruction to Disregard)
- Remember Herman Cain’s “9-9-9” Plan, and Don’t Forget the Power of a Good Mnemonic
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Eidelman, S., Crandall, C., Goodman, J., & Blanchar, J. (2012). Low-Effort Thought Promotes Political Conservatism Personality and Social Psychology Bulletin DOI: 10.1177/0146167212439213
Photo Credit: hslo, Flickr Creative Commons (Auguste Rodin’s The Thinker at the Musée Rodin in Paris)