By Thomas M. O’Toole, Ph.D and Kevin Boully, Ph.D.
Does the color of my tie matter? Are there too many attorneys at our table in the courtroom? Does it matter that I am not a local attorney? These are the kinds of questions that come up constantly in our discussion with clients, referring to the innumerable peripheral factors attorneys have blamed for confusing or surprising verdicts. While it is perfectly sensible for attorneys to consider all the factors that might influence a verdict, it is risky to go down the rabbit hole of concerns about all the odd, peripheral factors that might influence the jury’s verdict. Instead, it is better to understand why these “irrelevant” factors become relevant. Attorneys will never be able to predict all the distractions that can turn a case sideways, but they have extraordinary control over whether or not jurors are susceptible to such distractions.
Setting aside extraordinary situations, if the attorney is doing his or her job, these issues rarely matter to jurors. To understand why, we turn to one of the oldest and most fundamental theories of persuasion, called the Elaboration Likelihood Model (ELM). ELM, developed by Richard Petty and John Cacioppo, suggests that individuals process messages through one of two cognitive routes: central or peripheral. The central route refers to a process by which the juror actually engages the substance of the message and evaluates its substantive merit and qualities. The peripheral route refers to a process in which the juror relies on peripheral cues to evaluate the message instead of engaging the substance of the message. For example, if I choose to smoke cigarettes as a result of evaluating the advantages and disadvantages of smoking, I have used the central processing route to render that decision. If I choose to smoke cigarettes because my favorite rock star smokes cigarettes and I believe I can be “just as cool” as that rock star if I smoke, I have used the peripheral processing route.
Researchers believe the route through which a message is processed is largely determined by two key factors: the juror’s motivation to process the message and the juror’s ability to process the message. If jurors have both the motivation and ability to process the message, it will be processed through the central route, meaning they will think carefully through the main arguments and evidence in the case. If jurors lack either the motivation or the ability to process the message, they will process it through the peripheral route, meaning they are more likely to get caught up on supposedly “irrelevant” factors.
Why does this happen? Some suggest that we are all cognitive misers, desperately looking for the most efficient way to make sense of information that is presented to us. Nobel Prize-winning psychologist Daniel Kahneman has a great quote that we have used in past columns. Kahneman says, “when faced with a difficult question, we often answer an easier one instead, usually without noticing the difference.” In his popular book, Thinking Fast and Slow, Kahneman goes on to cite research findings that reinforce the inherent tendency of our brains to take shortcuts in the face of complex information. It is a fundamentally human tendency of decision making.
Applying this to a litigation setting, peripheral factors such as fashion choice and the geographical residency of the attorney potentially only become important when the presentation of the case fails to motivate or is too complex for jurors to understand. It is in these situations that jurors seek out shortcuts for deciding the case. In other words, the route jurors take to evaluate the case is partially in the hands of the persuading attorneys. For example, in a medical malpractice case where the medicine is complicated, it is much easier for me to look at the doctor and decide whether or not I like him or her than it is for me to try to understand the complicated medicine – unless the medicine is made easy. If I am the defense attorney and do not want jurors to decide the case based on the likability of my client, I need to find a way to make the medicine more understandable to jurors. I need to make it as easy as possible for them by teaching it through ideas and concepts they already know and understand, which substantially increases the likelihood of them embracing my case theory.
In the language of jury economics, jurors make economic decisions – weighing the costs and benefits of a more effortful analysis against those of the available shortcuts. Attorneys tasked with persuading are more than mere observers. They have the power and ability to anticipate and adapt to jurors likely route to processing information. A few more examples can help to further illustrate how the jury economics model incorporates the tenets of the Elaboration Likelihood Model.
The second and third pillars of jury economics are that jurors tend to make egocentric and symbolic decisions. Egocentrism means jurors relate their personal experiences, biases, and feelings about the issues to the case-at-hand and bring those egocentric factors to bear on the task of making decisions. Attorneys know this. Attorneys have the opportunity trigger a more effortful, central route to persuasion by using jurors’ experiences and egocentric biases as a reason to support their preferred decision (i.e. a motivation), and using familiar concepts to reduce complexity and increase jurors’ understanding (i.e. ability). In a case such as the medical malpractice defense example above, this could mean motivating jurors by aligning with a familiar principle to protect, such as the value of rewarding those who take care of other people, and teaching complex medical concepts via familiar ideas (e.g. coronary artery disease is a clogged pipe; medications are drain cleaners, etc.). Attorneys can leverage symbolic representations of these principles, such as the image of a doctor sitting at a patient’s bedside in the middle of the night, or a powerful demonstrative of a clotted artery being unclogged by a miracle medication, to support their central route to persuasion.
Attorneys may also want to encourage a shortcut route to their preferred decision in the same case by using the same pillars – jurors’ egocentric and symbolic decision making. Presenting the case by triggering a concern for jurors’ own safety or that of their loved ones (a la the Reptile Theory) can serve as a shortcut for jurors to consider “irrelevant” factors that could still motivate an egocentric decision. Again, attorneys can leverage symbolism to support a more superficial decision as well – the lasting image of a frustrated doctor losing his temper in a deposition, or a parent in despair holding the hand of an injured child. These, and far less dramatic symbols of larger and more meaningful ideas, are often available and rarely leveraged in even the most banal civil litigations.
So, do your fashion choices matter? Do jurors care how many states you flew over to get here? The short answer, supported by both the Elaboration Likelihood Model and explained through jury economics, is: they can if you let them.
First Published in King County Bar Bulletin, September 2021