The philosophers of the Enlightenment believed that rational thought is one of the highest values in human life. They could be right. Rational thought, defined as thinking “based on facts or reason and not on emotions or feelings,” has created the modern world we live in today.
We’re comforted by the idea that our world is orderly, knowable, and predictable.
Unfortunately, the conception of human beings as rational decision-makers has been under assault for some time now. Modern medicine, space travel, and robot-driven vehicles notwithstanding — it’s easy to spot irrational behavior across wide swaths of human activity.
The philosopher Bertrand Russell saw little reason to believe that reason explained human behavior: “Man is a rational animal — so at least I have been told. Throughout a long life I have looked diligently for evidence in favour of this statement, but so far I have not had the good fortune to come across it.”
Litigators know that human beings — particularly jurors — are not ruled by reason. In a recent episode of the long-running podcast The Jury Is Out, trial lawyers John Simon, of the Simon Law Firm in St. Louis, and Erich Vieth, a solo attorney in St. Louis, summarized the state of cognitive science as applied to the task of persuading juror to reach a desired conclusion.
Their conclusion? When it comes to deciding cases, jurors are anything but rational. Jurors, just like the rest of us, are persuaded by metaphor, emotion, and simplicity.
Metaphor, Emotion, Simplicity
In their 1980 book Metaphors We Live By, psychologists George Layoff and Mark Johnson assert that metaphors are the tools that people use to understand complex ideas. People reject complexity, preferring instead to make decisions by use of simple and familiar metaphors.
According to Simon and Vieth, this insight can be applied to trial practice with great success. Jurors may not have a sophisticated appreciation of the nuances of medical care, but they do understand and accept phrases such as “assembly line medicine” or “she fell through the cracks” as explanations for why a particular surgical procedure went wrong.
All trial lawyers have heard judges instruct juries to set emotion aside and decide the case by rationally applying legal principles to the facts of the case. This mental feat, Simon and Vieth say, is impossible.
Jurors decide cases based on emotion. Vieth recalled the metaphor of the elephant rider found in New York University psychologist Jonathan Haidt’s research on human behavior. According to Haidt, the rider represents rational thinking and the elephant represents emotion. The rider believes he or she is in charge, but when disagreements arise between rider and elephant, the elephant usually wins.
“Emotions rule the day,” Simon said. “You need to be aware of what emotions are present in your jurors that can hurt you. You also need to know what kinds of facts create favorable emotions for you.”
For example, Simon said, the value of an automobile accident case will absolutely be influenced by the identity of the driver behind the wheel. Jurors will look differently at an automobile mishap involving an old lady driving to church than one involving a pharmaceutical executive driving to work, he said.
Similarly, some jurors will be emphatically unable to set aside legally irrelevant factors. Simon cited as an example a product liability case involving an allegedly defective automobile and an intoxicated driver. In this case, product liability law requires the jury to evaluate how the automobile behaved during an accident. Regardless of the law, Simon said, some jurors will not be able to get past the fact that the driver was intoxicated at the time of the accident.
“Jurors help people that they like,” Simon said. “They punish people that they don’t like.”
The final significant insight from cognitive science involves the ways that people learn and retain information. In Make It Stick: The Science of Successful Learning, Peter Brown asserts that, for most people, new information is placed in short-term memory and quickly forgotten. Information overload is a problem for everyone, jurors included. In fact, if the jury trial is conducted virtually, poor network connections and distracted at-home jurors may have even more difficulty absorbing and retaining information.
The lesson for litigators, Simon and Vieth advised, is to be aware that jurors will remember very little of what was said during the trial. The key to successfully persuading jurors is to keep arguments short and simple to grasp. Simon said that part of his pretrial preparation is to continually boil his case down until, when the trial date arrives, he has the entire case summarized on a single index card: witness names, exhibit list, 5-6 key facts, his reply to defenses.
It’s important to emphasize the strongest parts of your case, Simon said. “If you’re not going to win with your best two claims, you’re not going to win with the others.”
Simon said he believes that “confusion is the negligent defendant’s best friend.” Boil your case down to your best arguments, simply expressed.
“Nobody is going to remember 90 percent of what was presented the next day,” Simon added. “Make it simple. Keep it short. But make it impactful and make it stick.”
Emotions in the Courtroom, The Simon Law Firm, Aug. 16, 2021.
Boully, K. Provide the Science Jurors Expect, and the Emotion They Require, Persuasive Litigator, Nov. 17, 2009.
Brown, P., Roediger III, H., McDaniel, M. Ditch the 10,000 hour rule! Why Malcolm Gladwell’s famous advice falls short, excerpted from Make It Stick: The Science of Successful Learning (1st ed., 2014).
Haidt, J. (2006). The divided self. The Happiness Hypothesis (1st ed., pp. 1-22). Basic Books.Lakoff, G. (1992). The contemporary theory of metaphor. Metaphor and Thought (2nd ed., pp. 202-251). Cambridge University Press.