Attorneys Must Learn How Jurors Process Information
By R. Craig Smith
The basic process of communicating fact and evidence to a jury is, in many ways, similar to the process that occurs in a classroom. In the classroom, the objective is to convey information so as to permit a diverse group of students to understand and retain that information for future use or reference. In the courtroom, there is a similar objective and process—one of educating a diverse group of individuals about a series of events and the circumstances that are alleged to have resulted from those events.
Of course, the events and their consequences are presented from two different and opposing viewpoints, and, unlike in the classroom, the jurors are given the substantial burden of evaluating and assigning credibility to each of the elements of information put before them. But the objective of the courtroom presentation, like that in the classroom, is to cause the recipients of the information to understand, to retain and to subsequently act upon or utilize that information to some definable advantage. In the case of the jury, the desired advantage would be a favorable verdict.
The design and proffer of evidentiary information in the litigative presentation is an exercise of persuasive reasoning and imposed discrimination, often closely akin to selling laundry soap or cars on television. As such, if each of the jurors could in some way be programmed to process information, and to reason in the same manner as the presenting attorney, deliberations would be short and favorable virtually all of the time.
Unfortunately, as in the classroom, the individuals who make up jury panels bring to the courtroom a wide mix of personality types, interests, diverse backgrounds, experience bases, intelligence levels, and information-processing preferences that makes the litigator’s job highly challenging—if not a mystery.
Thus, it has become a well-accepted view that the trier of fact who better understands how information is processed and utilized, and who is able to ascertain to some degree the personality types and processing preferences of the jurors, is at a distinct advantage. The litigator then can draft and adjust the design of the case presentation to meet specific, identifiable juror needs, and thus increase the potential for understanding, retention and subsequent favorable use of the information presented.
One of the unexpected sources of our understanding of how people process information, and how we can tailor educational and presentational materials to increase comprehension and effective utilization of that information, comes from a study of Navajo Indians.
Nearly 30 years ago, professors Willis Banks and William Fox became involved with the problems of multi-cultural education at Brigham Young University in Provo, Utah. They saw bright Navajo Indians come to the university from the reservations, only to fail in traditional classroom instruction.
Banks and fox tried many different instructional theories and methods with the goal of finding out why these otherwise intelligent, and sometimes gifted, students were failing and what alternative methods might work more effectively in their cases.
After becoming aware of an extensive body of research into right- and left- brain dominance conducted by Dr. Roger Sperry and his associates at the California Institute of Technology, and of further studies and research by a member of General Electric’s training staff, Ned Herrmann, who developed a simple but accurate test to identify an individual’s preferred brain mode, Professors Banks and Fox began to explore the educational implications of these findings.
From these studies and their own research, Drs. Banks and Fox understood that right-brain dominant people tended to visual and holistic and were inclined to be more sensitive, intuitive, and emotional, while left-brain dominant individuals were more logical and verbal, tending toward order, analysis, and sequence.
From their own tests in the classroom, they realized that traditional teaching methods were firmly entrenched in left-brain oriented methodology, tending to ignore the special needs and perceptions of right-brain students.
After examining the early experiences of many Indian students, they had concluded that life on the reservation often had been rich in visual imagery, nature, touching and feeling, emotion (both painful and joyful), and the senses. The Indians’ environment had conditioned them to process information almost to the exclusion of left-brain methods, and greatly enhanced their perceptive and creative right-brain capabilities. The researchers then developed and successfully tested instructional methods that involved the whole brain, not just the left hemisphere, producing remarkably positive results among the Indian students.
Without attempting to explore all of the many and various findings contained in the volumes of information that subsequently have been published concerning the effects and implications of right- and left-brain dominance, some of the information that subsequently have been published concerning the effects and implications of right- and left-brain dominance, some of the information gleaned from these studies may prove to have a profound effect on our understanding of how juries process and subsequently utilize information in their deliberations.
From the efforts of Sperry, Banks, Fox, Hermann, and others, we learned that:
- Seventy percent of the brain dominance is environmentally imposed—the result of cultural conditioning (i.e. the American-Indian students); only 30 percent is the result of heredity.
- The general population of the United States is about evenly divided between right-brain dominance and left-brain dominance.
- Seventy-six percent of females are right-brain dominant; 88 percent of males are left-brain dominant.
Craig Smith is the senior trial consultant at Prolumina in Seattle. He is a frequent CLE presenter, author of numerous articles on courtroom communication and trial strategies, and is the author of "Championship Law—Seven Keys to Winning Performance in the Courtroom.”
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