Trial & Error: The Art of Persuasion in the Age of Neuroscience

Transcription

1 Trial & Error: The Art of Persuasion in the Age of Neuroscience Villanova University School of Law J. Willard O'Brien American Inn of Court February 10,

2 OVERVIEW Introduction Structural Assumptions Psychological Realities Tools and Techniques Key Recommendations Questions and Answers 2

3 INTRODUCTION Santa Clara Students v. BC Barge & Tug Co., No (E.D. PA.) 3

4 INTRODUCTION (CONT.) Santa Clara Students v. BC Barge & Tug Co., No (E.D. PA.) 4

5 INTRODUCTION (CONT.) Santa Clara Students v. BC Barge & Tug Co., No (E.D. PA.) 5

6 OVERVIEW Introduction Structural Assumptions Psychological Realities Tools and Techniques Key Recommendations Questions and Answers 6

7 STRUCTURAL ASSUMPTIONS 7

8 STRUCTURAL ASSUMPTIONS (CONT.) Jurors will: Recognize their own biases Set aside those biases Reserve their judgment Remember oral testimony Make rational decisions 8

9 OVERVIEW Introduction Structural Assumptions Psychological Realities Tools and Techniques Key Recommendations Questions and Answers 9

10 PSYCHOLOGICAL REALITIES 10

11 JURORS MAKE SNAP JUDGMENTS BEFORE THE CLOSE OF EVIDENCE 11 From: Daniel Kahneman, Thinking, Fast and Slow (2011)

12 JURORS HAVE BIASES 12

13 BIAS IS HARD TO RECOGNIZE AND HARDER TO OVERRIDE 13

14 JURORS RATIONALIZE JUDGMENTS 14

15 VISUAL EVIDENCE IS MORE POWERFUL Numerous academic studies support the idea that visual Information can be seen and recalled more easily than aural 100% 90% 80% Visual vs. Auditory Memory 90% 80% 75% 70% 60% 65% 60% 55% 50% 40% 30% 20% 10% 0% Visual Auditory Number of items to remember Saarland University, Saarbrücken, Germany 15

16 JURORS SEE THE SAME EVIDENCE DIFFERENTLY The goal is to have all (or enough) jurors see the evidence and witnesses the way you want them to 16

17 SOME COGNITIVE FILTERS ARE TIED TO LIFE EXPERIENCES Caregivers of the elderly Heart condition experiences Waterway experiences Religious perspective Boating accident experiences Death or serious injury of a child Jurors have different cognitive filters that inform not only selection but also persuasion 17

18 SOME COGNITIVE FILTERS HAVE SOCIOECONOMIC ORIGINS Persuasion depends as much on the filters of the audience (i.e., the jury pool) as the skill of the communicator 18

19 SOME COGNITIVE FILTERS ARE PSYCHOLOGICAL System 1 (Fast, automatic, stereotypic, subconscious) Emotional reaction to the parties and witnesses What s fair? Perspective of real people with hands-on experience is the only thing that matters System 2 (Slow, effortful, logical, calculating, conscious) Reading of detailed documents and reports What s technically accurate? Expert perspective to provide context and analysis is valuable Messages that are most likely to persuade a large audience will appeal both to fairness and reason 19 System 1 & 2 from Daniel Kahneman, Thinking, Fast and Slow (2011) (based on decades of academic research on human cognitive theory)

20 Introduction Structural Assumptions Psychological Realities Tools and Techniques Key Recommendations Questions and Answers 20

21 A PERSUASIVE TRIAL STORY IS SIMPLE AND SEAMLESS Formal legal training often emphasizes preserving every possible reason that your client should prevail. But an exhaustive approach may dilute the impact of the best points. Persuading a jury requires having a clear target, which here may mean focusing on damages rather than liability. 21

22 REFRAMING THE ISSUES GIVES JURORS PERMISSION TO OVERRIDE BIASES Tell a story More memorable More impactful Exploit cognitive dissonance Offer a dueling narrative Anticipate how jurors might otherwise connect the dots Provide new information Perhaps from someone jurors are more likely to trust instinctively E.g., an admission from a party with an adverse interests 22

23 RULES-BASED ARGUMENTS VS. FAIRNESS-BASED ARGUMENTS Appealing to System 1 thinking means showing that it is not fair to hold Michael Mate responsible: Appealing to System 2 thinking means showing that Michael Mate followed waterway regulations: Had every reason to believe that using autopilot was appropriate Had no reason to believe that there would be traffic in the commercial channel Waterway rules are explicit and exhaustive None of those rules prohibit what Michael Mate did Was responding to a medical emergency that had to be dealt with 23

24 EMBRACE BAD FACTS TO FIT YOUR STORY Embracing bad facts can take away some of the sting and fit them into an alternative narrative: Embrace Michael Mate s initial lie after the accident as an understandable human reaction that is irrelevant to what happened before the accident Consider using the accident video to illustrate key points and to mitigate its impact on the jury 24

25 JURORS WILL FIND A VILLAIN IF YOU DON T FIND ONE FOR THEM 25

26 COMPARING THE KNOWLEDGE AND CONTROL OF THE KEY PLAYERS High Knowledge and Control Low Knowledge and Control Attribution of Ability to Act Attribution of Inability to Act Expectation of Action No Expectation of Action No Action - Anger No Action - Sympathy Punishment Reward 26

27 EXPLAIN WHICH PLAYERS HAD KNOWLEDGE AND CONTROL Will be easier for the plaintiffs because they had virtually no knowledge of or control over the situation But the defense could focus on the empty chair of the Quack Boat operator, who did have more knowledge and control To be effective, must be credible and not just deflecting responsibility, which would lead to anger 27

28 ROLES, RULES AND RESPONSIBILITIES: FOCUS ON WATERWAY PROCEDURES Quack Boat Operator Itemize the things he failed to do Empty fuel tank No reserve fuel No anchor No abandon ship order Contrast what he did with the waterway/channel regulations Michael Mate Demonstrate compliance with exhaustive waterway regulations The same standards not met by the Quack Boat operator Normalize autopilot use as part of commercial navigations 28

29 DEMONSTRATIVES COULD FOCUS ON THE QUACK BOAT S WRONGDOING A detailed summary of the relevant waterway regulations An animation showing that the Quack Boat driver s actions made this accident inevitable A visual summary or timeline of the Quack Boat operator s own negligence atch?v=ru7n_i_m-5a 29

30 OVERVIEW Introduction Structural Assumptions Psychological Realities Tools and Techniques Key Recommendations Questions and Answers 30

31 REALITY CHECK 31

32 KEY RECOMMENDATIONS Tell a simple, focused story that incorporates fairness and logic Illustrate the knowledge and control of the Quack Boat operator Focus on idea that he could have prevented the incident if he had done any of a number of things properly Emphasize the nature of Michael Mate s Hobson s choice and the reasonableness of his assumptions Establish that there are exhaustive waterway regulations and that Michael Mate s use of autopilot complied with them Use visuals to increase impact and memorability 32

33 OVERVIEW Introduction Structural Assumptions Psychological Realities Tools and Techniques Key Recommendations Questions and Answers 33

34 QUESTIONS & ANSWERS HawkPartners Rob Duboff Nancy Neufer Inn of Court Team 3 James Armillay, Jr. Brooke Burns Laura Conroy Ashanti Crawford Michael Daly John D Amello Michael DiFebbo Roman Galas Richard Haggerty Andrew Kampf Robert Lawler Erin Loucks Stephen Luttrell Sean Mahoney Francis McDevitt Bethann Naples Katherine Oaks Keisha Parker Ariana Seidel Keith Smith Karen Tucci Thomas Wilkinson Marc Zucker 34

35 FURTHER READING Robert Duboff, Nancy Neufer & Lori Holmes, Neuroscience And The Jury System: How Can They Coexist?, The Practical Lawyer (December 2013) Daniel Kahneman, Thinking, Fast and Slow (November 2011) Nancy Neufer & Robert Duboff, How To Connect With A Jury The Practical Litigator (July 2010) Nancy Neufer, Cynthia Posner & Robert Duboff, Complex Litigation: Jury Persuasion Takes On Different Dimensions, The National Law Journal (April 2010) Robert Duboff & Nancy Neufer, Scoping The Juror s Head: What s Going On In There?, The National Law Journal (Feb. 4, 2008) Michelle Pan, Strategy or Stratagem: The Use of Improper Psychological Tactics by Trial Attorneys to Persuade Jurors, 74 U. Cin. L. Rev. 259 (Fall 2005) 35

36 FURTHER READING (CONT.) Michael Miller & Thomas Mauet, The Psychology of Jury Persuasion, 22 Am. J. Trial Advoc. 549 ( ) Arthur Patterson & Nancy Neufer, Removing Juror Bias By Applying Psychology To Challenges For Cause, 7 Cornell J. L. & Pub. Pol'y 97 ( ) Thomas G. Wilkinson, Jr. and Thomas M. O Rourke, Psychology in the Courtroom: The Pennsylvania Supreme Court Considers Whether Social Science Is Common Sense or a Tool to Correct Juror Misconceptions. 36