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The Litigation Consulting Report

7 Ways to Overcome Cognitive Bias and Persuade

Posted by Alex Brown on Wed, Nov 23, 2016 @ 04:50 PM

cognitive-bias-persuasion-a2l-litigation-consultants.jpgby Alex Brown
Director of Operations
A2L Consulting

I read an article today that can be applied to our industry so well that I thought I should apply its lessons. The article was written by Eddie Shleyner and is titled: How to Defeat Your Most Dangerous Writing Habit: 7 Ways to Lift 'The Curse of Knowledge'

The article highlights the concept of being cursed due to knowing too much. The issue refers to someone who has studied a subject so thoroughly that it becomes difficult to explain it to people who don’t know as much about the subject.

As an example, he discusses the book, Made to Stick, where the Heath brothers provide an example: “Think of a lawyer who can’t give you a straight, comprehensible answer to a legal question. His vast knowledge and experience renders him unable to fathom how little you know. So when he talks to you, he talks in abstractions that you can’t follow. And we’re all like the lawyer in our own domain of expertise.”

Cognitive bias is what we are talking about. Shleyner notes that this is particularly dangerous to writers, since in conversation, a listener can ask questions to clarify the issue. But litigators, when giving an opening or closing statement, are in the same boat as writers since they are unable to ask or receive questions from their audience.

So, how can you defeat this curse? Ironically, more knowledge is the answer. The more you know about the curse, the less likely you will succumb to it and the more persuasive you will be. Let’s take a look at his seven best practices to combating this curse and apply them to our industry.

1. Know your audience’s base subject knowledge.

Jury Research. Focus Groups, Mock Exercises. Basically, you need to know your audience. Not only to know how they think, but why, what, who, where and the often forgotten wow. Learn how they think, learn the history to know why they think this way, but most importantly, figure out how to say it in a way that will wow them and be remembered.

Like It or Not: Likability Counts for Credibility in the Courtroom

5 Reasons Why Jury Consulting Is Very Important

Group Psychology, Voir Dire, Jury Selection and Jury Deliberations


2. Tone down your vocabulary.

cognitive-bias-synapse.jpgSpeak to the audience, not at the audience. A sure way to do this is to talk to them in a way that they will not only be able to understand, but also remember. Last night I was working on AP Psychology with my oldest (a junior in high school) and we were discussing the structure of the brain and the nervous system, specifically the identification of synapse gaps and the different interfaces.  I used the concept of roundabouts and how they connect roads. It fits but I did not consider the audience, since my daughter does not drive yet. My wife talked about soldering and it clicked since my daughter is doing that currently in her mechanical engineering class. Remember to speak “to” your audience, not “at” or “down” to them.

21 Steps I Took For Great Public Speaking Results

8 Habits of Successful and Persuasive Public Speakers

 

3. Tell a story.

At least 65% of your audience will be or consider himself or herself a visual learner. This means that they relate better and retain information at a higher rate through visuals or graphics. No matter how well you can paint a picture with words, the majority of your audience actually wants pictures. So that’s what you give them.

Litigators, Portray Your Client As a Hero In 17 Easy Storytelling Steps

6 Ways to Become a Better Storyteller

10 Videos to Help Litigators Becme Better at Storytelling

Storytelling Proven to be Scientifically More Persuasive

  

4. Ditch the abstractions.

Abstraction involves induction of ideas or the synthesis of facts into one general theory. It is the opposite of specification, which is the analysis or breaking-down of a general idea or abstraction into concrete facts. Basically, give examples that are concrete. Example:

ABSTRACT: Americans must be willing to protect our freedoms. 

CONCRETE: Voters must protect their Fourth Amendment right against illegal searches and seizures by calling or writing their representatives to protest the administration's warrantless wiretapping program. 

 

5. Provide examples.

Unlike abstractions, examples put concepts into perspective. In one of our cases involving alleged improper laddering transactions, the client was envisioning an abstract concept of showing a runner in a marathon jumping ahead and how in essence the opposition was intimating that this affected all the other racers in a way that was unfair or even illegal. We struggled with the concept because we could not guarantee that everyone who saw this would go down the same path and reach the same conclusion. Instead, we came up with the “dots” slide, which ended up appealing to the jurors’ sense of logic and was memorable.

ipo-class-action-dots-resized-600.jpg

As you can tell, this was done a few years ago, but it does not diminish the impact. Examples based on concrete concepts are usually more persuasive then abstract concepts.

 

6. Use visuals.

Bullet points are not visuals. Visuals reinforce the message and they are not meant to be redundant reiterations of what you are saying. Here are some good examples in these photos.

bullet-points-gates-jobs-bad-kill-bullets.jpg

12 Reasons Bullet Points Are Bad

The Redundancy Effect

Should You Read Documents Out Loud at Trial?

Could Surprise Be One of Your Best Visual Persuasion Tools?

7. Get an outside point of view.

When we are creating images/graphics for the matters we are supporting, we always discuss it amongst ourselves, the clients, strangers passing by… pretty much everyone. Not because we are worried or just want to show off, but because the input is invaluable to get the most persuasive graphic for our audience to connect with and understand. Why would it be different when considering your opening, closing or witness interviews or cross. Get people together to hear and see what you are planning on saying. Use peers and A2L in a MicroMock so we can review the message, and how you are delivering it.

Introducing a New Litigation Consulting Service: the Micro-Mock

With So Few Trials, Where Do You Find Trial Experience Now?

3 Ways to Force Yourself to Practice Your Trial Presentation

Other A2L Consulting articles and free resources about cognitive bias and persuasion:

how to persuade visually arguments persuasive graphics

Tags: Jury Consulting, Mock Trial, Litigation Consulting, Trial Consulting, Storytelling, Persuasive Graphics, Visual Persuasion, Opening, Closing Argument, Persuasion, Cognitive Bias

[Free Download] Trial Lawyer’s Guide to Jury Consulting & Mock Trials

Posted by Ken Lopez on Wed, Sep 14, 2016 @ 03:19 PM

A2L-MOCK-TRIAL-JURY-CONSULTANTS-TALL.jpgby Ken Lopez
Founder/CEO
A2L Consulting

Today, we are publishing our latest free book -- A Trial Lawyer's Guide to Jury Consulting and Mock Trials.

This free 328-page book is based on the idea that even after some decades in which jury consulting has grown and established itself as a business, many lawyers still don’t necessarily understand what jury consultants do and how valuable they can be. Many lawyers probably still harbor the old idea that a jury consultant is just someone who sits next to a lawyer and uses a “gut feeling” based on a potential juror’s occupation, body language or appearance to ask the lawyer to exclude the juror or keep the juror. If that stereotype were ever true, it’s certainly not true today. We’re about as far now from the O.J. Simpson days 20 years ago as we are from the Perry Mason days.

This book is dedicated to bridging whatever conceptual gap may remain between trial lawyers and jury consultants. It pulls together many of the lessons that jury consultants have learned, so that any lawyer who reads the book can get up to speed quickly and save herself a good deal of money and time. We have been dismayed at times at the disconnection between long-held myths held even by seasoned litigators and what the data show.  Excellent trial strategies are the product of balancing art and science, data and wisdom, confidence and humility. 

Among the topics in this book are: 14 Places Your Colleagues Are Using Persuasive Graphics That Maybe You’re Not, Is Hiring a Jury Consultant Really Worth It?, Why Do I Need a Mock Trial If There Is No Real Voir Dire, 21 Ingenious Ways to Research Your Judge, 7 Videos About Body Language Our Litigation Consultants Recommend, 15 Things Everyone Should Know About Jury Selection and 6 Good Reasons to Conduct a Mock Trial.

A good lawyer knows the law. A great lawyer knows the jury and how it works. Read this book and reflect on its contents to know more than most trial lawyers do. This book is based on hundreds of trials and years of data, not mere theory or presumption. We hope you enjoy it and share it. Please send us your feedback and let us know if you have any questions or comments, any time. If you have any questions about a case, a witness, a jury pool, a venue, strategic options or dilemmas, or think your case is unwinnable, we’re only a phone call/email away and would love to hear from you. 

Jury Consulting Mock Trial

Tags: Jury Questionnaire, Trial Graphics, Trial Consultants, Jury Consulting, Courtroom Presentations, Mock Trial, Trial Consulting, Litigation Support, Juries, Jury Consultants, Trial Preparation, Jury Selection, Psychology, Body Language, Damages, Persuasion, Cognitive Bias

SPICE Is the Key to Persuasion

Posted by Alex Brown on Wed, Jun 22, 2016 @ 02:12 PM

SPICE persuasion of jurors judgeby Alex Brown
Director of Operations
A2L Consulting

My 11-year-old is addicted to cooking shows – so much so that my DVR is full of episodes of Triple D, Chopped, Good Eats, Cutthroat Kitchen, and Chopped Junior. Last night she was talking about how she loves the idea of spices, but is not a fan because she equates it to spicy food, which she does not enjoy. Then she throws her hands up and says, you know what they say, “Variety is the spice of life.”

This morning, that statement has been bouncing around in my head and made me think about a book I read in 2011. It was written by Kevin Dutton, Ph.D., and was called Split-Second Persuasion: The Ancient Art & New Science of Changing Minds. Dutton's message boiled down to just five elements, encompassed in the acronym SPICE. These five elements are the key to persuading people, including jurors.

SIMPLICITY: According to a report published by Microsoft in 2015, the average human attention span has dropped from 12 seconds in 2000, to eight seconds in 2013. By comparison, goldfish have an attention span of nine seconds. So keep demonstratives simple by breaking down the complex in bite-sized packets of information.

self-interest-persuasion.jpgPERCEIVED SELF-INTEREST: I saw this patch (pictured right) and thought it defines self-interest better than anything I could say.

INCONGRUITY: We are most comfortable when we surround ourselves with patterns or routines. When you break that pattern, it unexpectedly draws attention. Use this to make a point or to have someone see something in a different light.

CONFIDENCE: When faced with the word, “confidence,” we automatically think about self-assurance. But, when thinking about how to graphically show confidence, consider the definition of creating trust.

EMPATHY: When developing empathy with a jury, your goal is to put yourself in the shoes of another. Creating an attachment with them allows them to root for your client.

litigation leadership 4th edition

Tags: Science, Psychology, PowerPoint, Persuasion, Cognitive Bias

When Smart Ain’t So Smart - Cognitive Bias, Experts and Jurors

Posted by Laurie Kuslansky on Fri, Feb 12, 2016 @ 02:46 PM

Cognitive Bias Jurors Expert Witnessesby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

Ever been told you were too smart for your own good? I never thought it was possible. I might be too smart for someone else’s good, but not my own.

When it comes to jurors and experts, it could be true. Two reasons are cognitive, decision-making biases that are of special interest because they can seriously impair your case. Both follow the lines of “Really? You don’t think like me?!”

Specifically, these biases are:

  • The “Curse of Knowledge Bias" in which well-informed people find it hard to think about problems from the perspective of others who are less informed, and

  • The “False-Consensus Bias", whereby people tend to overestimate how much other people will share their beliefs or opinions. Assuming that their own values and beliefs are normal and typical, they hold the false belief that there will be a consensus between others’ opinions and their own. In fact, when they discover that others do not share the same expected opinion, this bias leads them to believe that there must be something wrong with those people who think differently.


What Makes Very Smart Jurors a Risk?

Individual jurors, who have abided by the court’s instruction not to discuss the case prior to deliberating, often enter deliberations believing that others see the case as they do. Learning that others see it differently initially comes as a surprise based on their false expectation.

If a juror is better informed and suffers from the “Curse of Knowledge” bias, and a reason some jurors disagree is due to a poorer understanding of the case, a lack of background experience or knowledge, or an intellectual deficit, very smart jurors may have a hard time bridging the gap to reach a consensus with these fellow jurors. The “Curse of Knowledge Bias” may cause them to have a tough time seeing the case from the perspective of less-informed people. If so, they will fail to take the perspective of others and fail to find common ground with which to forge a true consensus to reach a verdict.

Depending on your position, that is either good or bad news.

 

What Makes Very Smart Experts a Risk?

Not only are jurors subject to these biases, but so are experts. Someone who is at the top of his or her field of expertise may be very knowledgeable -- but may also be challenged in other types of intelligence, whether emotionally, socially, or as a teacher, persuader or communicator.

Experts who are less experienced in testifying in court may be used to sharing knowledge with peers or students who are highly motivated to learn, but may be vulnerable to these two biases, to the peril of the litigator and client who hired them.

In order to successfully teach and persuade, at a minimum, one must be able to retrace the steps from ignorance to knowledge and pave the way to get there. Otherwise, the expert may really be too smart for their own – and your – good, because they cannot imagine other ways to see an issue and what is needed to understand their position. Assuming too much knowledge or understanding on the part of the recipient (student or juror) is a good way to alienate them.

 

Implications for Jury Selection: Is Your Goal to Reach or Prevent Consensus?

If your goal is reach consensus on a jury, e.g., the plaintiff(s) or prosecutor

In selecting jurors, many factors must be considered in whom to strike or keep, but open-mindedness and social skill, diplomacy and the ability to be somewhat flexible and less egocentric may be traits to consider, rather than just how smart or well-informed a juror may be. Selecting a juror who is smart but rigid can backfire.

If your goal, on the other hand, is to prevent a consensus on the jury, e.g., the defense

It isn’t as simple as getting a contrasting mix of well-informed and poorly-informed jurors to do the trick of avoiding consensus, but it’s a start.

However, if one camp is meek, inarticulate, lacking in passion and unable to stand its ground, they will reach consensus by merely following the lead – whether of the better-informed or more passionate. Hence, one must consider:

Getting jurors who are:

  1. well-informed mixed with ones who are not well-informed;

  2. passionate for you to win or the opponent to lose;

  3. smart, but somewhat cognitively rigid (i.e., have difficulty changing their way of thinking), fail to reflect upon hearing information in voir dire, show an inability to shift if asked to consider something different in voir dire. Are they open-minded and flexible, showing some transition (bad) or do they freeze/repeat their initial response or fail to respond (better)?


Implications for Expert Selection: Is Your Goal to Dazzle or Teach?

If your goal is to dazzle

Your expert may never be able to teach the subject at issue because it is simply ridiculously complicated and all you hope for is for jurors to a) see them as an expert, b) trust their credentials, and c) trust them and their opinion. If so, someone who displays both forms of bias is the man or woman for you.

If your goal is to teach

Don’t just consider whether your expert is smart. Also ask whether the expert is effective at teaching and persuading others because he or she does not suffer from these cognitive biases. How do you do this?

Assess the expert’s ability to assess and understand the mindset of the uninformed lay person. Can they speak their language? Do they voluntarily offer to translate lingo into lay terms? Do they provide useful analogies for the common person? Can they appreciate the complexity of their subject area for the uninformed or why it might not be interesting to outsiders? Can they make it interesting and relevant?

Whatever you do, be too smart for your own good.


Other A2L Consulting articles related to cognitive bias, jury persuasion, and expert witnesses include:

A2L Consulting's Storytelling for Litigators 3rd Ed E-book

Tags: Jury Questionnaire, Jury Consulting, Trial Consulting, Juries, Jury Consultants, Jury Selection, Psychology, Expert Witness, Persuasion, Cognitive Bias

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Authors

KenLopez resized 152

Ken Lopez founded A2L Consulting in 1995. The firm has since worked with litigators from all major law firms on more than 10,000 cases with over $2 trillion cumulatively at stake.  The A2L team is comprised of psychologists, jury consultants, trial consultants, litigation consultants, attorneys and information designers who provide jury consulting, litigation graphics and trial technology.  Ken Lopez can be reached at lopez@A2LC.com.


tony-klapper-headshot-500x500.jpg 

Tony Klapper joined A2L Consulting after accumulating 20 years of litigation experience while a partner at both Reed Smith and Kirkland & Ellis. Today, he is the Managing Director of Litigation Consulting and General Counsel for A2L Consulting. Tony has significant litigation experience in products liability, toxic tort, employment, financial services, government contract, insurance, and other commercial disputes.  In those matters, he has almost always been the point person for demonstrative evidence and narrative development on his trial teams. Tony can be reached at klapper@a2lc.com.


dr laurie kuslansky jury consultant a2l consulting







Laurie R. Kuslansky, Ph.D., Managing Director, Trial & Jury Consulting, has conducted over 400 mock trials in more than 1,000 litigation engagements over the past 20 years. Dr. Kuslansky's goal is to provide the highest level of personalized client service possible whether one's need involves a mock trial, witness preparation, jury selection or a mock exercise not involving a jury. Dr. Kuslansky can be reached at kuslansky@A2LC.com.

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