|
The Case Story and Juror Reasoning
The Advantage: 4.04: V.1, 2nd edition
In a recent mock trial, learning jurors found two emails more persuasive than a statistically significant academic study surprised our clients. Both the emails and the study suggested the same thing. One might think scientifically based evidence would be more compelling. However, that was not the case. Why was the anecdotal evidence more persuasive than the scientific evidence? At first glance it seems odd, but not if we take a step back and consider how jurors reason.
Technical vs. Narrative Reasoning
There is a vast difference between technical or scientific reasoning and everyday practical reasoning. People use narrative rationality to make sense of events. Stories are part of our most basic and natural communication process, providing a principal way we learn and comprehend new ideas and information.
But how does this account for the preference for anecdotal over statistical evidence? In short, the email messages are more compelling because ordinary people have more direct and concrete experiences with email, whereas in general they have little to no experience conducting or responding to a scientific study. The anecdotes are not complete stories, but they fit with jurors’ cognitive schema for assessing information. They are easily translated into jurors’ experiences or, in other words, their pre-existing personal stories.
Story Elements
Always consider the key elements of a story as you prepare for trial. Jurors will use these basic elements as they attempt to understand the case. A story has characters with motives. A story has a setting. A story has structure: a beginning, middle, and end. A story has a plot and often involves a conflict. A story has events that relate causally. A story may also have a moral, lesson, or point. A story has action. Put differently, every case involves several competing versions of who, where, when, what, and why?
So how do jurors assess stories? In very general terms, jurors assess stories, and thus the themes and particular evidence in terms of narrative probability and fidelity. Probability refers to the degree to which the event, account, evidence, and/or witness is likely to be accurate and believable. For example, is a witness’s characterization of another person consistent with the observable behaviors of that person? Is a witness’s account of why they took particular action consistent with a juror’s own experience in the same or similar circumstances? Is the characterization of a person consistent with evidence of their behavior?
Narrative rationality is based on efficiency of comprehension. Social science research is replete with the findings that information overwhelms people and that they therefore choose to attend to some information and select out other information. So while attorneys have been in the trenches dealing with boxes of evidence, facts and minutia for months or even years, jurors have limited time to consume, comprehend and then act on their perceptions. Jurors will try to make sense of and sort through complex and confusing facts using basic narrative schemes. Providing a strong and compelling narrative to help them comprehend, organize and prioritize the details, and to judge certain evidence as more or less salient than other evidence, is key to their understanding of your case.
People also assess stories based on fidelity. Jurors use their attitudes and experiences to assess the case story. Will your case story “ring true” for jurors? Will your story align with jurors’ experiences and/or their attitudes and values? If not, your case could strain their credibility. When stories seem suspect, jurors tend to default to preexisting attitudes and biases. Quite often we see jurors in our mock trial deliberations make sense of a party’s actions based on information beyond that which was presented by either party. What they are doing is relating the credibility of an account to their own experience and belief about what they would do themselves. By crafting a story that “rings true” you will establish a connection to your audience. It is a basic psychological maxim that people tend to seek out and pay attention to information that confirms who they are and what they believe. The converse is also true. People will avoid and potentially dismiss information that is contrary to their values and beliefs.
Implications
The implication is that an attorney is a storyteller, whether or not he or she recognizes it. The question you should be asking is not if you are a storyteller, but are you a good one. Are you thinking like a juror? If you don’t provide a coherent and compelling story to the jurors, they will invent their own. Or possibly even worse, may use your opposition’s story to frame their understanding and render their judgment. The trick is to capture their narrative imaginations and control the framework within which the evidence will be situated.
Care must be taken to craft a believable and compelling story. This is an inherently creative process. All cases have strengths and weaknesses. Utilize your case strengths and account for case weaknesses through your narrative. Make your weaknesses your strengths. The overall story development should begin early in the litigation process. Having a good idea of your best story can help direct discovery and assist your ongoing assessment of information. Keep in mind that the story approach to litigation is not just for a jury. Judges, arbitrators and mediators are people too. They assess evidence in narrative fashion also. Having a strong and compelling story from the start makes every element of the litigation process easier.
< Back
|
RSS