By Dr. Ken Broda Bahm:
For anyone analyzing audiences and preparing persuasive messages, it helps to know about what is called “System 1” and “System 2” thinking. When we make decisions that are pretty quick and automatic, with little reflection, cognitive work, or even necessarily voluntary awareness, then we are using System 1. When we take the other path of making decisions based on careful mental efforts, including a consideration of evidence, reasons, and implications, then we are using System 2. Of course, there is a spectrum between the two, but these are useful polarities in thinking about how we make the countless decisions that get us through a day. Popularized by the cognitive psychologist Daniel Kahneman, the difference is right there in the title of his biggest book: Thinking Fast and Slow. If “Fast” is the impulse buy we make in the check-out line, then “Slow” is the new car purchase we make only after devouring every relevant article in Consumer Reports.
I think legal persuaders intuitively know the difference between these first impressions and the more considered products of deliberations, but you should also devote some thought to which you want. Sometimes a case is helped by that quick automatic surface reaction upon first hearing a story. But more often, I at least find myself more frequently working on cases where clients benefits from or even require the slower track of thinking in order to get to the right result. So how do you encourage your jurors to use that slower, System 2, effortful approach when your case depends on it? That’s partly a matter for research, but on the practical side, I believe that a courtroom has an advantage as a setting, and jurors are already being primed to believe that their decision is a big deal. But attorneys can help in the way you frame your case. I think that explicitly encouraging jurors to be suspicious of the first impression, and to work past the immediate and easy answer can work in creating a framework for a System 2 mindset. In this post, I’d like to share a few ways to send that message, with suggested language based on four different yet complementary reasons why the tougher path might be the better path.
Sell Your Jurors on the Tougher Path because….
It’s More Virtuous
As you learn about this case, I think you’re going to have some immediate reactions to what you hear. You’ll have some first impressions. And when those reactions pop into your head, I think the easiest thing to do is probably going to be follow those reactions, to go with your gut. But the right thing to do — especially because we are sitting in this grand courtroom, and the parties have spent years preparing for this moment — the right thing to do is going to be to slow down, to carefully look at your own process in reaching a decision, and to be thoughtful and systematic in looking at everything in order to move from the evidence to the conclusions. The path of first impressions might be easy, but it is the tougher path of careful consideration that is right and what this courtroom was designed for.
It’s More Accurate
Have you ever met someone, had an initial impression that went one way, and then you changed your impression — maybe 180 degrees — once you really got to know that person? I know I have. First impressions can be pretty powerful. They can also be wrong. When you hear the bare basics of the story in this case, I think you might have a quick reaction to that story. But that quick reaction is not going to be the source of an accurate answer in this case. A complete and correct answer is only going to come from spending a little time with it. Just as you got to know that person over time, you will get to know this case over time. So, here at the start, I want to ask you to challenge yourself to have some patience in arriving at the right answer, not the quick answer.
It’s Legally Correct
In a courtroom, our job is not to focus on the first take. If it was, we could just push through a trial in an hour or two: Each side tells their simple story, and then you decide. I am certain that this would be more convenient for all of our schedules, but the law doesn’t work that way. And the law doesn’t work that way for a good reason. If we are following the instructions and the law, then everything that you hear is something that matters. You are asked and challenged to base your decision on the full portrait that is painted over time, and not on the instant Polaroid picture. Carefully considering everything and keeping an open mind as the information comes in, that is what the law asks you to do.
It’s More Interesting and Fun
For better or for worse, we are all going to be here in this room for awhile. And I know from talking with jurors in the past that they can experience this jury duty as drudge work, or they can experience this as something that is interesting and exciting. In my experience, those in the second category — the ones who found it interesting and exciting — are the ones who didn’t rush their decision, but instead considered all of the facts and all of the evidence as it came in, who saw themselves as investigators processing an evolving case from both sides, who didn’t make a snap judgment but instead carefully assembled the puzzle from all of the pieces of evidence. They took the tougher path in waiting and considering the full picture, but it was also the more interesting and rewarding path. So as we are starting out, I encourage you to take that tougher path: Don’t be content with a first impression, but consider everything.
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Other Posts on Juror Process:
- Persuade Through Process
- Understand Jurors’ Process on Pain and Suffering
- See the Process and Not Just the Product in Deliberation
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