When presenting a case to a jury, attorneys face the obvious questions: Is the jury listening? If so, what is getting through? Having received instructions to keep their minds open, jurors appropriately sit stone-faced, giving no indication of what they are thinking or even that they are thinking at all. Understandably, trial attorneys fear the need to repeat themselves to make sure their evidence and arguments are getting through.
Faced with never knowing what the jury has heard or understands, trial attorneys reasonably, but mistakenly, repeat their evidence and arguments, and often repeat them again and again. Repetition has been called the mother of all learning, but repetition seldom adds to understanding. Instead, repetition frequently frustrates jurors and harms credibility.
Consider this: Cases go to trial because both sides have plausible evidence and arguments. So, how do jurors choose between two or more plausible positions? Behavioral economists, especially Nobel Prize winner Daniel Kahneman, give us suggestions. Kahneman describes decision-making as alternating between low-effort, automatic, intuitive, what he calls “System 1” decision-making and higher-effort, deliberative, slower, and more difficult “System 2” decision-making. Even when we labor with detailed “System 2” decisions, we make those judgements against the backdrop fashioned by our intuitive impressions. No surprise. Most of us typically make most of our decisions intuitively.
Because calculated System 2 decisions are difficult, burn more calories, even dilate our pupils, all of us instinctively try to avoid making that extra effort whenever we can. The same is true with jurors. As do all of us, jurors prefer making less-demanding, more impressionistic decisions, even when they don’t think that’s what they’re doing.
Psychological studies also tell us that detailed and difficult thinking draws on a declining pool of mental energy. With each complicated issue to be confronted, trials draw down jurors’ reservoirs of mental energy. Each additional complex mental project becomes more difficult. And with each additional difficult issue they face, jurors lose motivation to undertake the greater effort of System 2 decision-making.
This too is important to recognize. Kahneman describes a National Academy of Sciences journal paper that examines Israeli parole judges deciding parole applications submitted on paper. Denial is the default rule, with only 35 percent of the applications being approved for parole. But approval rates varied significantly depending on the time from the judge’s last food break. In the periods immediately after food breaks, parole approvals spiked to about 65 percent. They fell to near zero immediately before the next break.
We can infer that the breaks restored the judges’ reservoirs of mental energy and supported their next rounds of examinations. But for our purposes here, the bigger point is that intuitive assessments come quicker and easier, and require less mental energy than non-intuitive judgments.
In both written and oral presentations, believability usually turns on cognitive ease. As Kahneman recommends: “If you care about being thought credible and intelligent, do not use complex language where simpler language will do.” For similar reasons, trial attorneys should not use complex evidence and arguments when simpler ones suffice. Jurors believe that “the truth runs in a straight line.”
By compelling a heightened focus on which evidence and arguments are essential, reasonable trial time limits press for ease and simplicity and force out repetition. This improves the chances that jurors will accept your case.
Longer trials do nothing to enhance your trustworthiness. If someone came to you and said “It is raining outside,” you typically would accept the statement without challenge. But if the same person came to you and said: “It is raining outside. Really, it is raining outside. Honestly, it is raining outside. I tell you again, it’s raining outside,” you likely would find that the repetition reduces, rather than enhances, the believability of the statement.
That’s exactly what I find, trial after trial. Repetition subtracts from, and does not add to, credibility and acceptance.
With each completed jury trial, I speak to the jurors. With almost no exceptions, jurors complain that the trial attorneys unnecessarily repeated evidence and arguments the jurors already had received and understood. Jurors sometimes feel insulted by the repetition. “We listened carefully to the evidence,” they say. “Didn’t the attorney believe we were listening?”
Trial time-limits encourage attorneys to distill their evidence down to the simplest and most credible form, and give benefit to ordering effective and persuasive trials. If the presiding judge has not already given time limitations, I encourage you to suggest and try them. You’ll be surprised by the positive effects.