By Dr. Ken Broda Bahm:
Looking at the pictures above, you can’t help but focus on what isn’t there: The triangle, the pole, the sphere, and the snake below the surface. That focus isn’t a voluntary choice, but an artifact of the way our pattern-loving brain processes. We are impatient with incompleteness or ambiguity and we look for closure, imposing it when we have to. That is similar to the way litigation audiences process as well. Many jurors will want the story to be complete, and any holes, whether material and relevant or not, are likely to be filled in as they speculate, jump to conclusions, or rely on the mental short cuts of bias. Of course, you can address that problem by simply filling in all the gaps with evidence. But what happens in those cases where a gap or some other unknown in the case is unavoidable?
Where it isn’t possible for all questions to be answered, it is inevitable that you will need some way to encourage jurors to tolerate the incompleteness and ambiguity. This post reports on one new study (Djikic, Oatley, & Moldoveanu, 2013) demonstrating a novel way of inducing that tolerance: stories. The study found people who had just read a piece of fiction had less of a need for psychological closure, but more of an acceptance of uncertainty and ambiguity. After looking into the need for addressing incomplete closure in a legal setting, I’ll look at the research and the results of this study, and end with a reminder for litigators to use trial narratives to address the inevitable incompleteness of what can be proven with evidence.
Failing to Provide Closure
In our serial fascination with big cases, the spotlight is currently on George Zimmerman. But a few cases prior, it was Casey Anthony. In that case, there seemed to be a gap in the evidence that prevented the jurors from reaching the level of closure they felt they needed in order to convict: They did not know the manner of death. While it could be, and was, argued that jurors don’t have to determine exact manner of death in order to see it as homicide and convict, the jury in that case appeared to disagree and equated that failure to provide closure with a failure to meet burden of proof.
In the George Zimmerman case, the fundamental unknown may be more central to the case: Who was the aggressor in the struggle that occurred prior to the shooting? The answer to that question depends on the specifics of what was said and done in the moments leading up to Martin’s death. That is made more complicated with one party dead, the other defending himself on second-degree murder charges, and the exchange only partially and imperfectly witnessed by a handful of others. The question in this case is whether a jury that is still uncertain about exactly what transpired before that fatal exchange could still be confident enough to convict. Will they accept the fact that the picture is always to some extent incomplete, or will they read incompleteness as a failure by the state to disprove Zimmerman’s claim of self-defense?
I mention these cases because they are familiar, but the role of gaps is by no means unique to criminal cases. In a recent products liability mock trial we conducted, for example, the specific cause of the accident leading to the claimed product failure was unknown. While the issue carried no relevance to the plaintiff’s claim, speculation on this missing cause still featured prominently in deliberations.
The Study: Teaching a Tolerance for Incomplete Closure
One suggestive study points toward a possible way to address the need for cognitive closure in situations where that closure can’t be provided in evidence. In research published in the Creativity Research Journal (Djikic, Oatley, & Moldoveanu, 2013), three University of Toronto scholars tested the effects of exposure to either a nonfiction essay or a short story. First, they took a look at the dark side of a need for closure in a decision making context. The need for completeness causes overreliance on early information (e.g., jurors deciding after opening statement), a reliance on categories rather than specific information (e.g., jurors deciding based on general anti-plaintiff bias rather than individual information on the specific case), and a preference for low effort thinking in coming to a decision (e.g., jurors relying only on broad themes instead of an analysis of evidence). Noting that “having a closed mind can affect both rationality and creativity,” the researchers took a look at what might serve to open the mind a bit.
Studying the response of 100 undergraduates, the researchers assigned participants to read either a short story or a short nonfiction essay, with all materials controlled for length, complexity, and interest level. After finishing their reading, participants responded to the Need for Closure scale, a 42-item set of questions measuring the psychological tendency for individuals to prefer completeness and structure over ambiguity and uncertainty. Seen as a broad measure of open-mindedness in some ways, the scale asks for agreement or disagreement with statements like “I don’t like situations that are uncertain” and “I dislike questions which can be answered in many different ways.”
The central result of the study was that those who read the stories rather than the essays had significantly lower scores on the Need for Closure scale, reporting less need for order and more comfort with ambiguity, and this effect was especially strong in frequent readers.
The researchers attribute the effect to the unique dimensions of fiction. “Unlike in everyday life,” they reason, “the thinking a person engages in while reading fiction does not necessarily lead him or her to a decision, and therefore has tendencies neither of urgency nor permanence that propel the need for cognitive closure.” However, one important qualification on this study is that it compared fictional stories to essays. The advantage of a lower need for closure in the former group could have come from the fact that they were reading fiction, or could have come from the fact that they were reading stories – fictional or not. Stories that are intended as nonfiction (as, hopefully, the stories told in courtrooms are) could still be likely to induce a frame of mind that is more tolerant of incompleteness and an absence of closure. In the mind’s essay-reading mode, you expect a logical style in which all questions are answered. In the narrative mode, however, we understand that the narrator isn’t always omniscient and the tale is often told from a particular perspective.
The Implication: More Reason to Tell Stories in Trial
The received wisdom in legal persuasion at this point is that all sides should be telling stories to hold interest and to convey your client’s eye-view of the dispute. Beyond these practical benefits, though, this research also suggests that stories have a way of inducing a different frame for decision making. Based on the study discussed in this post, there is some possibility that narratives can help jurors accept that there will inevitably be at least some blank spaces unfilled by evidence. In the ongoing trial of George Zimmerman, for example, both sides will be emphasizing the evidence in the context of their own narratives in the hope that the story structure can act as a kind of glue that not only holds everything together, but also fills in a few small gaps.
This broader perspective on stories also suggests that your story should not be relegated to just one moment in opening statement, but should permeate your case. The story should serve as an overarching organizing principle not only for the whole opening statement, but also for the order of witnesses and the examination outlines within each witness. By repeatedly walking through the evidence in the order of your preferred narrative, you are getting your legal fact finders to adapt that framework, hopefully focusing on what is there rather than what isn’t.
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Other Posts on Cognitive Processing:
- Time Your Arguments to the Judge’s Lunch Breaks (and Adapt to All Decision Makers’ “Cognitive Load”)
- Don’t Fool Yourself on the Advantages of Intelligence
- Determine Whether Your Jurors Are Driven by Process or by Verdict
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Maja Djikic, Keith Oatley & Mihnea C. Moldoveanu (2013). Opening the Closed Mind: The Effect of Exposure to Literature on the Need for Closure Creativity Research Journal, 25 (2)
Image Credit: Wikipedia