September 01, 2015

iWitness: The Jury and the Internet: A New Way of Thinking

You can take the Internet out of the jury box, but can you remove its effects on the jurors themselves?

George B. Curtis

Download a printable PDF of this article.

“Nowadays, everybody assumes, when they wake up in the morning, if they have a question, it will get answered. Because they have the Internet. No matter what the question is, someone will answer their question.”

—Jack White

“The Internet is just a world passing around notes in a classroom.”

—Jon Stewart

These two quotes, taken from the Internet (naturally), nicely frame the topic of this article. As trial lawyers, our job is to persuade. The Internet, in that context, functions as both resource and complication. It is an extraordinary resource for factual development, understanding context, and checking into the backgrounds of the triers of fact. It can also be a troublesome complicating factor when a trial is conducted and the Internet threatens the integrity of the jury process. “Passing around notes in a classroom,” as Jon Stewart puts it, is not the preferred style of a jury trial.

Perhaps even more fundamentally, the assumption described by Jack White goes to the central questions of how a jury listens, how its members absorb and construe facts, and how a trial lawyer is to engage a jury who assumes that “[n]o matter what the question is, someone will answer their question.” If, as some commentators have argued, the Internet is changing how we think, how we process information, and what garners our attention, then trial lawyers should be interested—very interested.

 

So far, much of the commentary and discussion regarding the jury and the Internet has focused on potential juror misconduct in the use of electronic social media (ESM) and the Internet during trial. But there is little commentary to be found on the effect of the Internet and ESM on the thinking of the jurors themselves and on the process by which they reach a conclusion.

Courts, understandably, are focused on removing the Internet and ESM from any potential direct effect they might have on the trial. Jurors cannot use those media to communicate, research, or draw conclusions regarding the trial. Yet, if the Internet has had a significant effect on our culture and population, we would expect it to show up in the jurors’ response to the trial presentation.

In other words, you can take the Internet out of the jury box, but can you remove its effects on the jurors themselves?

A significant amount of research and writing has developed regarding the effect of the Internet on our cognitive and decisional processes. That work, by authors such as Nicholas Carr, Alan Greenblatt, and Clay Shirky, and by institutions such as the Pew Internet & American Life Project, continues, but several central concerns have been identified. Our attention span has significantly diminished; we can rarely devote a “deep read” to particular texts. We are impatient with lengthy, protracted presentations and instead demand immediate information. However, the effect is not simply distraction—we’ve had that for years. The distinguishing characteristic of the Internet is that it directly affects how the brain processes information.

Our pattern of reading and taking in facts appears to have changed. We rarely read a web page from left to right, from top to bottom. Rather, we are prone to search the web text for leads related to our point of interest. Confronted with mountains of data, we have developed a habit of moving quickly over the text, pausing temporarily at points of interest. At least one writer describes the reading pattern as a capital F, which represents the reading pattern our eyes take in surveying a page of text.

Print and electronic media have responded. Full pages of magazine text have been displaced by boxes of information, hyperlinks, pictures, and summaries. Stories are shorter and deliberately so. This change in the publication and transmission of information reflects the potential displacement of linear thinking and reasoning. In other words, our reasoning has, in some fashion, become more holistic.

One consequence of all this is a diminished ability to retain information in long-term memory. According to recent studies, the Internet speaks to parts of our brain that are attracted to movement, visual imagery, and novelty—areas that do not lend themselves to deep thought and contemplation. While our working memory may be enhanced, our longer term ability to retain and interpret information is more limited.

With the advent of the Internet, our cultural mainstream is being diverted, quickly and decisively, into a new channel. This is not to say that this “rerouting” is good or bad. It is, at the least, certainly challenging. The sheer availability of information reinforces the observation by Jack White that begins this article: The Internet invites the expectation that information will be immediately available to answer any question. In a jury trial, trial counsel has to provide that information within the rules of evidence and address jurors’ questions, whether asked directly or anticipated by trial counsel.

What to Do

What then is the trial lawyer to do? Don’t panic. Instead, review the skills and practice of persuasion and factor in particular points emphasized by this most recent cultural revolution. The art of persuasion, sometimes referred to as rhetoric, hasn’t gone out of style. It must, however, observe the effects of the Internet on jurors, including these baseline facts:

  • While the jury will be under a mandate not to use ESM or the Internet during the trial and in their deliberations, the habits of learning and review imbued by the Internet must be honored because they are the prisms through which the jury will process information and argument.
  • The art of persuasion teaches that interaction with an audience consists of three main components: the speaker who seeks credibility with the audience, the message, and the audience.
  • As trial lawyers we know, or should know, that our goal is to be clear and achieve credibility with our audience, the jury. If the jury does not believe or will not at least listen to the advocate, the message might not even be considered. The jury must be approached with respect and, perhaps above all else, has to be engaged.
  • Given the development of the Internet and its profound effects on the members of the jury, we must determine how to present and how to persuade listeners who expect faster, more colorful, and more readily cognizable narratives.

These challenges are significant, but they are not new. The art of persuasion has been practiced for thousands of years and has been analyzed in detail since at least the time of Aristotle. It has also been modified to accommodate new technologies and ways of learning. For instance, scholars such as Walter Ong have convincingly argued that perhaps the greatest revolution in human communication (at least until the arrival of the Internet) came with the advent of writing. As he and others have pointed out, writing introduced distance between correspondents, whereas prior verbal correspondence had largely been face to face. Writing enabled the separation of past from present in communication and, among other things, forced words to bear more weight. The art of persuasion adjusted.

The first step in accounting for the Internet requires learning the extent of the jury’s dependence on and familiarity with it. While Internet addiction is now recognized as a phenomenon, it may be equally helpful to know who among your jury is totally unfamiliar with the Net and why. Consider using voir dire to explore jurors’ Internet usage.

Remember that, depending on the practice of the court, the jury may just have been read the riot act to avoid all ESM and Internet use during the trial, including during their deliberations. That may prove to be a particularly severe burden for some. You might also want to suggest to the court that it quote Eric Schmidt, former chief executive officer of Google, who instructed a graduating class to disconnect from the Internet on occasion. “Turn off your computer,” he advised. “You’re actually going to have to turn off your phone and discover all that is human around us.” Applied to jurors, this disruption in their lives may, in part, allow immersion in the facts and humanity of the trial that is about to unfold. But depending on how aggrieved the jury appears to be by this prohibition, you might want to avoid delivering that message yourself.

In addressing an Internet audience, the message must be clear, short, and to the point. Elements of argument have to be presented in much the same way as a web screen presents them: clearly and organized into recognizably related elements. Gone are the days of the three-hour oration presented by Edward Everett at Gettysburg, if ever they were recently present anywhere near a courtroom. Instead, emulate Lincoln, whose four-minute speech on the same occasion achieved rhetorical glory.

While always a good practice, letting the jury know where you are in your presentation is particularly important when speaking to an audience trained to expect answers in Google-like fashion. Graphic displays should be striking and not overburdened. One particular benefit of the Internet era may be the phasing out of crowded PowerPoints read to the audience. The jury’s patience for that sort of approach would seem to be disappearing quickly.

Jurors’ attention must be engaged and maintained. The trial lawyer’s goal, in both criminal and civil trials, is to persuade the trier of fact that the client’s narrative, as presented by the attorney, is both believable and superior to that presented by her opponent. To achieve that goal, the lawyer must be credible and her narrative persuasive. However, even if those two fundamental elements are present, the audience has to be approached in a manner that is effective.

Jury trials in the Internet age are therefore a challenging mix of goals. The court wants to remove access by the jury to both ESM and the Internet. Yet, the trial lawyer must consider that very same influence because removal of access does not equate with removal of effect. Failure to do so risks the loss of credibility with the jury and, perhaps worse, losing the jury’s interest as well.

George B. Curtis

The author is with Gibson, Dunn & Crutcher LLP, Denver.