By Dr. Ken Broda Bahm:
How likely is it that a corporation’s competitor could come up with a parallel product without infringing a patent? How common is it for someone to get injured on an amusement park ride? How normal would it be for someone who gets regular physical exams to have an undiagnosed stage three cancer? If these issues are tried before a jury, the answer might depend on how easily those sorts of scenarios come up in the jurors’ minds. That is what is known as the “availability bias,” defined as a tendency to judge the likelihood and significance of something based on how easily it comes to mind. The more “available” a piece of information is, the more important, normal, and trustworthy it will seem to be.
A recent piece in Farnham Street’s “FS Blog” focuses on this cognitive shortcut. The article draws from the field of behavioral economics, a social science practice that examines the ways people make decisions under conditions of uncertainty and the common human shortcuts that end up being partly rational and partly irrational. For cognitive scientists, the availability bias is one of those shortcuts. But for litigators, the availability bias is an important lever for persuasion. As the FS Blog piece notes, “Anything that makes something easier to remember increases its impact on us.” As part of their message, litigators would do well to focus on the factors that make a point easier to remember.
It is common for persuaders to wonder how they can make their best points “sticky.” And “sticky” is another word for “available.” So the question is, what makes something more available or cognitively top-of-mind? In this post, I’ll share a quick list of seven factors that litigators should pay attention to and try to leverage.
1. The Personal
We are a little narcissistic when it comes to constructing our own models of the world, and we prioritize the personal. As the piece notes, “personal experiences can also make information more salient. If you’ve recently been in a car accident, you may well view car accidents as more common in general than you did before.” This is why the experiences of potential jurors matter so much in voir dire: What is so immediately available in their experience is going to be difficult or impossible to “set aside.”
2. The Social
People tend to make estimates based on a social process, and not just based on their own investigations. In current times, of course, people pay attention to the coronavirus news and the local infection rates. But if someone in your network is suddenly diagnosed with the virus, it will immediately loom as a much greater threat in your mind. Data is one thing, but your own social ties are another. That is why it makes sense to understand as much as you legally can about that network when assessing your actual and potential jurors.
3. The Foundational
We all carry a “world view,” made up of our experience-driven and often ideological beliefs about how the world operates. Those beliefs are a foundation or a lens. That is why fact-finders who tend toward optimism, or authoritarianism, or a “just world” mindset can carry a great influence on how your case is perceived. Specific beliefs can be important, but only in a few situations (like a case with extensive media coverage) will jurors feel they know enough to form specific beliefs. General attitudes can be harder to assess, but can ultimately be more important in determining how a juror will react to your story.
4. The Narrative
Stories are more memorable than disjointed facts, and packaging information in a narrative format makes it far easier for jurors to recall and apply those facts. It is now commonplace for lawyers to get the advice to “Tell a story,” but I still think it is difficult to overstate how important that is. The narrative isn’t just a device or a technique. It is a perspective on communication that taps directly into the ways jurors store and retrieve information. Story elements will be more available because they fit the familiar elements of character and plot.
5. The Unusual
What is shocking or unusual is more available, hence the stereotypical “man bites dog” story, or the reason people will commonly over-estimate the likelihood of shark attacks. Of course, it is not the actual normalcy that matters as much as what is perceived. If you are downplaying an event (on the defense, for example) you want it to be as normal and routine as possible. And if you are playing it up, then make it an unusual departure from what is normal or expected.
6. The Elaborated
The FS Blog piece notes the research finding that, if people are asked to brainstorm the various ways a politician could lose support, that that mental exercise will cause them to increase their estimate that the politician will lose. That act of elaborating is a kind of cognitive gymnastics, and the sheer activity on the brain’s part makes the thought more available and thus, more common, trusted, and expected.
7. The Saturated
Perhaps the simplest way to increase availability is through repetition. This is why a good theme that wends its way through jury selection, opening statement, witness examination, and closing can be so powerful. If your jurors have continuously heard a simple idea expressed in a variety of ways, it will come more easily to mind, and be more trustworthy to them for that reason.
These factors are all elements that can be played up or down by advocates, depending on your need. Apart from evidence and law, there is the simple need to make a good reason stickier or a bad fact less sticky. So think not just about your proof, but also about cognitive availability.
Thanks for reading. I am a litigation consultant (bio here) specializing in mock trial research, witness preparation, jury selection, and case strategy, generally (but not always) in high-value civil cases. If you have a comment, a request for a future topic, or a concern about a current area of litigation, or a question about your own case, contact me now.
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