By Dr. Ken Broda Bahm:
No, I don’t mean that you should strike up a conversation with your current jurors in the elevator — that kind of interaction is likely to lead to a quick mistrial and a contempt of court citation. But you should aim for methods of education that are as interactive as they can be. Educational researchers have long known that interactive education is more effective and more durable than passive learning, but the extent to which that is true is turning out to be even more striking than we thought. A recent study coming out of Carnegie Mellon University and reported in ScienceDaily shows that learning by passively watching is dramatically less effective than interactive methods. The 2015 study involved nearly 30,000 students and compared so-called “Massive Open Online Courses” or MOOC’s with the schools “Online Learning Initiative” or OLI classes. Both are online, and both involve large numbers of students, but the former (the MOOC’s) are based on the traditional model of watching and absorbing lectures, while the latter (the OLI’s) are based on learning by doing, using an intelligent tutor rather than a lecturer.
The result? Students learn about six times more effectively in the interactive OLI’s. Ken Koedinger, a coordinator for the project, notes that the advantage to interactivity is that it provides “deliberative practice opportunities.” Students “get immediate feedback. If they do not master a concept, they have to go back to rewatch or reread and then demonstrate they have learned before they are able to move on.” Then bottom line, as captured in ScienceDaily’s headline, is that learning cannot be a spectator sport. The problem is that in a trial, jurors are expected to be exactly that: spectators. As the National Jury Trial Innovations Project’s now-classic video points out, the analogy between a classroom and a courtroom reminds us just how little control and interaction jurors typically have. Yet they are still expected to learn what they need to know in order to make a fair decision. The trial model is wedded to passive learning, partially for some good reasons. That structure is not going to change because we can’t reposition counsel as a friendly tutor conversationally walking the jury through the case. At the same time, there are a few things that trial lawyers can do during trial, and especially before trial, in order to leverage the advantages of interactive learning.
There Are Some Ways You Can Make Trials More Interactive
So let’s get the main problem out of the way: Your jury cannot be interactive in the same way the students in the study were interactive. They might be able to pose questions to witnesses, and some of those questions might even make it past objection and get asked. But jurors won’t get a chance to come even close to the dialogue that makes for a true tutor-student relationship. Instead, they are expected to learn in the way the MOOC students learn, or the way large lecture-hall students learn: by passively sitting, watching, listening, and hopefully absorbing the information.
Still, wherever you have a chance to inject some interactivity into your trial presentation, you should take it. For example, I recall one of our experts in an agricultural contamination case who came up with the wonderful idea of setting up a box with a peephole so that jurors could look at a petri dish containing fluorescent bacteria under a black light. The fact that the bacteria glowed under the light had only the barest relationship to relevant facts in the case, but the process of the jurors getting out of the jury box in order to walk up to the front and peer into the box one by one was effective. It may not have been terribly relevant, but it was participative and memorable.
There is an even more common technique that lawyers can use just about anytime: the rhetorical question. Asking a question, even when your target audience cannot answer, it is a great way to invite some interaction. If you ever watched the old children’s program Mr. Rogers’ Neighborhood, you saw a lot of rhetorical questions. Fred Rogers was well aware of the problems of television as a one-way form of communication. To try to make it more engaging, he would carry on his half of a conversation with his young viewers. He would ask, “How are you today?” or “What do you suppose is in this bag?” and then pause as if his viewers were actually answering (and some of them undoubtedly were). That approach creates a virtual kind of interactivity as the recipients at least consider how they would answer if they could. Good trial lawyers can accomplish the same by peppering their presentations with questions: “Why would the company do that?” “How do we know it is intentional?” “What would it take to make Mr. Smith whole?” Framing your own communication as though you were in a dialogue with your decision makers not only helps to keep them engaged, but it also helps you keep your mind on what your jurors would or should be asking themselves at each given moment.
And Even Better Ways You Can Make Your Pretrial Preparation More Interactive
You can’t engage in dialogue with your jurors during trial, but you can create a dialogue with your mock jurors during your pretrial research exercise. That means that you do have a precious chance to engage in the kinds of educational conversations that end up being six times more effective than straight up, one-way presentations. While you cannot fully recreate that approach in court, you do have the chance to use that interactive setting to discovery which arguments, analogies, and themes really work, and then use those arguments, analogies, and themes in the less interactive setting of trial.
This provides one of the best reasons to sometimes prefer a focus group over a mock trial. Knowing that some use those terms interchangeably, the difference is that a focus group is based on continual interaction from the beginning of the project, while a mock trial usually reserves that interaction for the end. In a focus group exercise, for example, you might start out by discussing the case-relevant attitudes mock jurors came in with, then presenting just the statement of the case and again asking what they think. Then they’ll hear about liability, and engage in another discussion. Then they hear about causation and damages, following the same pattern. In a mock trial, in contrast, jurors will typically just receive information from counsel and provide feedback only on written questions. The only dialogue will happen in the final interview after they’ve deliberated to a verdict.
There are advantages to each method, with the mock trial being more realistic, and the focus group being often more revealing for precisely the reasons identified in the study. Because the level of interaction is higher, a focus group is likely to be more educationally effective for both you and your mock jurors. If you can, a great combination is to conduct a focus group early on, ideally while discovery is still open, and then conduct a mock trial closer to trial. The focus group allows you to dig into what jurors need to know, what works and what doesn’t, and the mock trial allows you to test your preferred approach.
There is one final stage where you can leverage the advantages of interactive learning: the post-trial interview following your jury’s trial verdict. Take the time to really investigate what each juror perceived during trial, how they reacted to you and your arguments, and how they ultimately reached a decision. That means a planned interview, one juror at a time, with a perceived neutral asking the questions. Just as education cannot be a spectator sport, your verdict shouldn’t be either. In other words, don’t just hear the verdict and then go off to either celebrate or lick your wounds. Instead, take that last moment for an educational interaction.
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Other Posts on Learning:
- Account for a Vanishing Attention Span
- Think Again: Escape Bad First Impressions By Encouraging Reappraisal
- Persuade Through Dialogue
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Carnegie Mellon University (2015). “Learning is not a spectator sport: Students learn 6 times more with CMU’s Simon Initiative approach than with MOOCs.” ScienceDaily. ScienceDaily, 14 September 2015. <www.sciencedaily.com/releases/2015/09/150914220526.htm>.
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