By Dr. Ken Broda Bahm:
This is one of those times I expect my title to be met with a, “Well, no kidding.” Attorneys and expert witnesses know the demands of conveying often complex methods and conclusions and know the drill: simplify, simplify, simplify. So lawyers and witnesses know to keep it basic. But do they? Not as much as we would like. Research (like Greene & Bornstein, 2003) shows that jurors have trouble comprehending evidence, and practical experience continues to remind us that out of all of the descriptions, reasons, methods, and conclusions an expert presents on the stand, jurors in a post-trial interview will understand and remember a handful at best.
So what is going on? Lawyers and experts get the need for simplicity, but are still committed to a set of beliefs and practices that end up maintaining a level of complexity that can put testimony out of reach. For example, one belief that I’ve seen embraced by experts and lawyers alike is the belief that once an explanation or a definition is provided, the witness can go ahead and use the unfamiliar terms and concepts, trusting in the jury’s ability to remember and apply that definition. But new research is pointing to the probability that it isn’t simply a lack of comprehension that impedes understanding, it is cognitive load. The idea is that our ability to process, remember, and understand is finite and breaks down quickly once it is overtaxed. This post takes a look at one of the most important implications this has for lawyers and experts: The task isn’t just to make it technically understandable, it is to make it easy.
Cognitive Load and Language
The analogy isn’t perfect (analogies never are), but think of it like this: You’ve got your laptop running and have several windows open at the same time. On one, you’re downloading a new program, on another you’re sending and receiving email, on a third you’re playing a YouTube video, and on yet another you’re performing a search on your hard drive to find that missing file. Your CPU is about maxed. Add one more task, and you’re sure to see the little hour glass telling you to wait. The juror in trial is in the same situation. You might think, “Well, there is only one thing going on at a time,” and that may be true in the courtroom, but not in the cranium. The juror is listening to evidence, watching the parties and witnesses, remembering prior evidence to make connections, and thinking about any number of the normal nonlegal things that occupy the mind: Cognitive load in that new situation is normally high. Add any difficulty, like complicated terms or explanation, and the next thing jurors hear is likely to be missed.
It’s not just simple comprehension (Could they get it if they really try?), it’s cognitive effort (Is it easy, normal, and natural for them to get it?). A recent study done in the context of expert witness testimony on civil damages shows that adding complex language in the circumstance of high cognitive load leads to less effectiveness. A team of Australian and Canadian psychologists (McKimmie et al., 2012) conducted two studies on the effects of complex versus simple language for both male and female expert witnesses. Their theory was that complicated language would be seen as more “male” (sadly, they found that was true), and that witnesses who were more “gender congruent” (stereotypically, that means simpler females and more complex males) would be more credible and effective. Interestingly, they found that the results bore out only for females: Those who conveyed the same testimony in simpler terms were more effective in increasing damages for a plaintiff. Though the more complicated version was viewed as more “masculine,” males using that style were not significantly better as witnesses.
These effects were seen when the study participants were operating at a high cognitive load — in this case, when they were distracted by a second task. This finding is consistent with several other studies, some that I’ve written about before: When jurors are able to process a message thoroughly, they tend to evaluate it on rational grounds. But when they’re distracted, then they tend to focus on simpler rules of thumb: who is paid more, who has credentials, and so on. The moral is that if you teach in a way that jurors easily understand, you are maximizing the chances they will approach their decisions rationally.
Top Excuses for Pitching Over Jurors’ Heads
So don’t make it any harder than it needs to be. But here are some of the reasons that I’ll sometimes hear from witnesses or attorneys for doing exactly that.
1. “They’ll Figure It Out.” The fact that it can be figured out by the average juror does not mean that the average juror will figure it out. Test it out in a mock trial and you will find that testimony with a clear explanation will be met with varying levels of comprehension. Testimony given with a comprehensible, but not clear explanation, will be all over the place. If you are increasing the cognitive load, you are decreasing the chances that they will get it.
2. “I Defined the Terms.” There is a practice in contracts or briefing of referring to complex terms like (“The Securities and Reciprocation Agreement between Company A and Company B”) in abbreviated terms like (“The Agreement” or “SRA”) once that original definition has been given just once. That works in a written document because the reader can always loop back and remind themselves of the definition. The listener can’t. Even a small effort in trying to remember the definition increases the cognitive load. In addition, the mere presence of the technical terms will send the message to some jurors that “I can’t understand this.”
3. “I Don’t Want to Talk Down to Them.” That is genuinely a good motivation: The jurors don’t want to be talked down to either. It is still good practice to substitute common terms for technical ones wherever possible. A good rule of thumb is to act like you’re talking to a smart junior high school kid (the “smart” part is so you’re not insulting, while the “junior high” part is so you’re keeping your lowest common denominators in mind).
4. “The Law or Facts Require Complexity.” The law and the facts set the standard for where you need to end up, but not for how you get there. The lawyer, and especially the expert, can sometimes feel that the complex way of explaining something is the “correct” way, simply because that is how it is explained when experts talk to other experts. But that is just more economical (for experts), not more correct. The simplest way that still allows the jury to end up in the right place is the best way.
So what does simplicity look like? That will naturally vary based on the field and subject matter of the testimony, but it will have a few common threads:
- Shorter is better: Use shorter words and sentences, and also shorter paths to your point.
- Visual is better: If the listener gets a mental picture or a literal picture of what you’re saying, that is better than abstract knowledge.
- Translation is better. Don’t use specialized terms unless your jury can’t get your point without them.
- Repeated explanations are better: Don’t just give one opportunity for understanding, give as many as you can.
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Other Posts on Effective Expert Testimony:
- First Expert Rule: Keep It Concrete
- Subvert Stereotypes: Free the Attorney, the Expert, and the Juror
- Become a Two Minute Expert: Robert Reich Explains What’s Wrong With the Economy
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Greene, E., & Bornstein, B. H. (2003). Determining damages: The psychology of jury awards. American Psychological Association.
McKimmie, B. M., Newton, S. A., Schuller, R. A., & Terry, D. J. (2012). It’s Not What She Says, It’s How She Says It: The Influence of Language Complexity and Cognitive Load on the Persuasiveness of Expert Testimony. Psychiatry, Psychology and Law, (ahead-of-print), 1-12.
Photo Credit: Jimee, Jackie, Tom & Asha, Flickr Creative Commons
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