Litigation Skills: Dealing With Distracted Jurors

Understanding the brain

How Litigators Should Deal With The “Online Brain” In An Age of Distraction


Litigation Skills: Dealing With Distracted Jurors 1
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Powered By LawFuel Ken Broda-Bahm Many to most of my readers will be old enough to remember when there was no Internet. Or, perhaps, you’ll remember a time when “going online” meant connecting through a noisy modem and a telephone line.

Even more of you will remember a time when you didn’t have an internet-connected smart phone in your pocket and couldn’t have the sum of human information potentially at your fingertips.

Of course, nearly all of us have that now, and you’re most likely reading this online and connected, a large part of the time, to a variety of networks for work and for entertainment. It is amazing just how much has changed in such a relatively short time, and these changes are not just technological, they are changes to our own daily mental habits.

Our near-continuous state of being electronically connected influences how we inform ourselves, make decisions, persuade, and are persuaded. For the legal advocate facing a jury, it is important to keep that in mind. They may not be using their devices at the time, or using them to research during breaks or at the end of the day (or, then again, they might be), but one thing that is certain is that they are not setting aside the cognitive habits they develop and reinforce throughout the day.

So what are these new cognitive habits?

A team of Australian, British, and American researchers looked at the current state of research on that question and the results appear in the article, “The ‘Online Brain: How the Internet May Be Changing Our Cognition” (Firth et al., 2019).

While they give some emphasis to social and developmental aspects of our new online reality, my attention is drawn to the habits that relate to focus and memory — the real-time changes that would affect the way a jury pays attention and retains information.

The team argues that, as the Internet is becoming increasingly effective at capturing and holding our attention, and in being a repository for what we know and what we think, the brain is correspondingly making changes that are starting to be shown in the research.

we are growing used to the idea of constantly shifting our attention to something new

In other words, the data is coming in on our large-scale social experiment on the effects of this quick evolution in the information diet of most of the population.

Two changes stand out as being especially relevant to the way a jury is likely to hear and use information.

Expect a More Distractible Jury

Today’s electronic connectivity allows heavy multitasking, and many people have become habituated to compulsively checking for new messages, whether that is texts, emails, or social media messages.

As a result, we are growing used to the idea of constantly shifting our attention to something new. The team cites research showing that 85 percent of current teachers say that we are creating an easily-distracted generation. And the effect certainly isn’t limited to children.

It also isn’t safe to assume that adults simply get good at multitasking. The team reviews research showing that the most frequent multitaskers don’t become great multitaskers, but instead become increasingly distractible, which shifts in attention and task occur as frequently as once every 19 seconds. That erratic focus isn’t just at the extreme.

They note that when people browse on the Internet, on average, 75 percent of all on-screen content is viewed for less than a minute.

This change in the way we focus predictably changes the brain. The researchers note that high-internet usage and frequent multitasking is associated with decreased grey matter in the prefrontal regions of the brain —  the parts of the brain that are associated with maintaining focus. So, one effect of multitasking is that we are likely to be less able to focus on one thing, even when we want to.

The team found that engaging in multitasking is associated with significantly-reduced cognitive performance. “Overall, the available evidence strongly indicates that engaging in multitasking via digital media does not improve our multitasking performance in other settings — and in fact seems to decrease this cognitive capacity through reducing our ability to ignore incoming distraction.”

There are several ways legal persuaders should adapt to this increased distractibility:

  • Don’t use more time than you have to. Get right to the point and focus on what matters most.
  • Add variety. Use natural breaks or explicit “chapters” in order to keep regaining attention and adapting to the need for variety.
  • Use visuals. Listeners will be more engaged if you are also continuously giving them something to look at.

Expect Jurors to Remember Less (While Believing That They Know More)

One strength of our connected world is the sheer scope of information that is now easily available. “Indeed, for the first time in human history,” the researchers note, “the majority of people living in the developed world have access to almost all factual information in existence literally at their fingertips.” But one consequence of this is that we tend to rely on it.

The fact that we feel we can access information at any time makes it less necessary to actually retain it. The findings considered in the article show that people are becoming more likely to remember how to get information, but less likely to remember what that information is.

For example, now that we have Google Maps, we have less need of our own mental maps. So, to some extent, that skill atrophies.

The same goes for information retention generally. The researchers note findings that may point to a reduction in functional connectivity and synchronization of the brain regions that sustain long- and short-term memory.

And the catch is that we don’t perceive that change. In fact, in something they call the “Illusion of self-knowledge,” our ability to easily access information increases our sense of what we know, making us more certain about our opinions, and as a result, making society itself more polarized, as people become less likely to change their minds in response to new information.

So, faced with jurors who may be less used to using their memories, while being more sure that they know all they need to know, there are a couple of ways legal persuaders should adapt:

  • Emphasize information access. Don’t just presume they’ll remember the information, tell them how they can find it again by guiding them and emphasizing exhibit numbers, especially in closing arguments.
  • Connect to their present knowledge. Instead of acting as though you are making an argument out of whole cloth, begin by referencing what they already know or believe they know.

First published in Persuasive Strategies


Litigation Skills: Dealing With Distracted Jurors 2
Dr Ken Broda-Brahm isa 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. He can be contacted here.

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