By Dr. Ken Broda Bahm:
Trial lawyers and consultants know how important it is to boil it down, and tend to agree with the three points famously made by Henry David Thoreau: “Simplify, simplify, simplify!” Our main reason for doing so, however, might be a little bit too simple. It is not just that simpler messages are more likely to be understood by a harried judge or a lay jury. The simpler claim is also more likely to be considered true. “Occam’s Razor,” or the principle that the simplest explanations are often the best, is now buttressed by a line of research on “cognitive fluency,” — or more colloquially, “truthiness” — demonstrating that simplicity determines veracity. As Katy Waldman wrote recently in Slate, “The less effort it takes to process a factual claim, the more accurate it seems.” That advice runs counter to what litigators might assume in thinking, “The more arguments and evidence I can pile up in favor of a claim, the more accurate it seems.” We would like to think so, but as the research results pile up, it seems clear: Truthiness wins.
That line of research is summarized in a recent Washington Post story written by Eryn Newman, a postdoctoral fellow in cognitive psychology at the University of California at Irvine. Summarizing her own research, as well as studies conducted by others, she shares several scenarios where people can be convinced simply by reducing cognitive effort. The simple idea is more comprehensible, but it also sticks in the mind better because it seems more familiar and more like something we already know and trust. For litigators, this perspective carries some very profound implications. You are not just dumbing it down so jurors can follow your line of argument. Instead, you ought to be simplifying in order to select and frame your case and arguments in a way that conserves your decision makers’ cognitive effort.
The Old Idea: Occam’s Razor
Litigators wanting to put a finer point on Henry David Thoreau’s maxim might find a friend in Occam’s Razor, also known as the law of parsimony. This philosophical ode to simplicity is, ironically, often oversimplified to the maxim that “the simplest explanation is probably true.” That sentiment might resonate with criminal prosecutors, but in the world of complex civil litigation it is often the case that the complex explanation is not only true, but also in need of being understood by the jury. In reality, the principle attributed to William of Ockham who wrote in the 14th century, is more logical than the familiar maxim. It suggests that when faced with competing hypotheses, the theory that shaves away the most assumptions is the theory that should be picked. That provides a more practical guide for litigators — the fewer hurdles your fact finders need to get over, the better.
The New Research: Truthiness
The advice to choose the simpler over the more complex path is clear enough, but it is only in the last few years that research has supported the idea that simplicity isn’t just logically preferred, it is cognitively more persuasive as well. Appropriately enough, much of the media attention to the idea (most recently the Slate and Washington Post articles) has been driven by the fact that there is a simple envelope for it: truthiness. We have written before about the word coined by comedian and faux-news personality Stephen Colbert in 2005: “truthiness is what you want the facts to be, as opposed to what the facts are. What feels like the right answer, as opposed to what reality will support.”
Of course, there is an older name for this feeling of something being true: credibility. The trial system embraces that notion and jurors are encouraged to evaluate credibility based on both substance and demeanor. The ways jurors reach these subjective feelings of credibility have been a focus for many years. The most recent trends in research — the truthiness trend — has focused on the role that cognitive fluency plays in these determinations, or as Eryn Newman says, “the ways we can be tricked into thinking that something feels familiar, trustworthy and true.” In her article, she points out a number of such tricks:
- When subtly primed to come up with a certain answer, we are more likely to consider that answer true.
- When nonprobabative pictures accompany a claim, the claim is more likely to be considered accurate.
- When claims are attributed to individuals with more pronounceable names, those claims are seen as more credible.
- When a claim is made using a more easily readable font and background, it is more likely to be believed.
What unites these examples is lower cognitive effort. The priming, pictures, pronounceable and clear reading all mean that research participants have an easier time coming up with an answer. Why would they have more trust in the easier answer? Because it provides a kind of illusion of familiarity: an “I already knew that” feeling. Because it feels like it is closer to our own thinking, it is intuitively trusted. As Katy Waldman writes in Slate, “We readily believe things that don’t ask too much of us mentally.”
Getting Simple in Your Trial Message
So embracing the simple is all well and good (it really is), but how can litigators go about doing that? That has to be discovered in the specific context of each case, but let me share a few general ideas.
Selection
Legal thinking encourages lawyers to believe that “Jurors need to understand the full picture…” and “Everything matters!” Add to that the modern condition of near-infinite discovery, and the effect is to multiply your options and add complexity to your case. But a disciplined litigator realizes that selection is the soul of persuasion. Having more arguments is not always better, and three strong claims will generally work better than those same three strong claims, plus two okay claims and one really dubious claim. Lawyers are bred to look at their case and ask, “What else have I got?” Instead, you should remember truthiness and Occam’s Razor and ask, “What can I pare away?”
Reduction
When I taught academic debaters, I had one exercise focused on reduction. The two sides would alternate speeches, with each side required to make shorter and shorter arguments each time: a paragraph, then two sentences, then one sentence, then just a phrase, and finally just a single word. It was a great trick for discovering the core of your case. With a little less exaggeration, a mock trial can serve the same function. In most cases, the format forces drastic cuts — e.g., distilling three weeks of evidence into a 75-minute presentation. But rather than reducing the utility of the project, this particular constraint increases it. Just by preparing the presentations alone, the attorney is forced to discover for themselves what is most essential and what can be left on the cutting room floor.
Illustration
When it comes to understanding something, seeing it is a much more straightforward route then logical argument. Of course, the trial process still needs logical arguments, but when those arguments are paired with simple and compelling graphics, they are more likely to be believed. This is why much of the cognitive fluency research has focused on this dimension of visual truthiness. That said, not all graphics are created equal. They should be clear — not just capable of being read and understood, but easy and obvious. That means that when your graphic designer pushes back against your overdesign (too many words, too much detail, or just too much stuff on the screen or the board), you should listen.
One unexpected connection that I made when reviewing this research goes back to the popular plaintiff’s approach known as the Reptile. David Ball and Don Keenan’s perspective focuses on jury’s tendency to react to threats and to seek safety. The additional thought is that this perceived need for security applies not just to the content of the message (holding the defendant responsible makes you safer), but also to the manner in which it is presented (my arguments are simpler and easier to understand… and therefore safer”). The researcher Eryn Newman also echoes this point: “To the Fred Flintstone parts of our brains, that feeling of familiarity signals something that we can trust, while information that’s difficult to process signals danger.”
Beyond the Reptile, that points to a broader truth drawing from truthiness and Occam’s Razor: Simplicity is not just about comprehension, it is about trust.
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Other Posts on Complexity and Simplicity:
- Complex Case? Beware of “Low Effort Thinkers”
- Experts: Use Small Words
- In Employment Cases (and All Cases), Keeping it Simple is Smart
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Image Credit: Razor image from Wikipedia Commons).