Lawyers often lament about jurors' failure to attend to, remember, and use key evidence and testimony in their deliberations. Jury interviews have revealed that some jurors claim no memory of certain witnesses. Attorneys and their clients frequently attribute this failure to a lack of motivation or intelligence. How else could an otherwise competent person miss something so central to the case? Over the years, efforts have been made to experiment with procedural interventions designed to increase juror comprehension. Research on perception suggests an explanation other than motivational or intellectual; instead the culprit may be a kind of "cognitive blindness".

My own experience may be illustrative: I once was invited to lecture at a bar association meeting in the mid-west. The program coordinator had planned to have someone meet me at my gate (this was when one could still do that) and take me to my hotel, but at the last minute called to say that no one was available; I would have to get myself to the hotel. I arrived on time and navigated through the crowd at the gate, found a taxi and went to the hotel. Three hours later I received a call by an exasperated person who, with very little introduction asked, "where were you?"

It turns out that while I was en route, someone was dispatched to collect me at the airport after all. He even went to the trouble of making a large sign with my name on it which he showed to each person who disembarked. He became frantic thinking he had missed me and would get in trouble. The poor guy; I never saw him or his sign even though it displayed something as personally salient as my name. I was blind to his best efforts to capture my attention simply because I did not expect anyone to be there.

The Gorilla Study

Why do people fail to notice things that are right in front of them? An interesting study conducted by university researchers at Harvard and the University of Illinois attempted to answer that question. In the research, participants were asked to keep a silent count of the number of times five persons passed a basketball to each other. The persons passed the ball in a fixed order but kept moving around the room randomly. At a predetermined point, a person dressed in a full gorilla costume walked through the scene and in one condition even stopped in front and beat its chest in stereotypical fashion. The study participants were then asked among other things whether they noticed anything unusual or unexpected during the exercise.

The average result across all conditions was that nearly 50% of the participants did not notice the unexpected event. In one condition, as many as 58% failed to notice the gorilla. The investigators attributed this failure to a type of "blindness" which occurs when people are focused on a task and something outside their expectations occurs. This phenomenon explains why for example motorists hit bicyclists they report they never saw even though they were alertly monitoring for other cars, or theater goers fail to notice old friends as they search for a seat.

Unnoticed Gorillas in the Courtroom

While this study dealt strictly with perception, the parallels to information processing in the courtroom are worth considering. Jurors tend to focus on the trial narrative that is personally relevant. Facts and testimony outside that narrow range of expectations can be classified as "unexpected" and is subject to being missed due to jurors' temporary "blindness". Indeed, the typical case is replete with metaphorical "gorillas". For example, many corporations go to great length to let the jury know what a good corporate citizen it is. However, since many jurors believe that corporations are motivated by greed, the selected examples of corporate beneficence go unnoticed as they fall outside jurors' expectations.

In science cases (e.g., pharmaceutical product liability cases) we often see that jurors fail to attend to the causation evidence and deliberate as if they never heard any testimony on the subject. Indeed, some of these jurors act surprised that causation is even a contended issue. This is different than pointing out that some jurors are biased against corporations and hear but refuse to accept pro-corporate messages. Instead, the point here is that some jurors never hear the message in the first place. Indeed, underestimating the power of juror expectations is one of the fundamental errors committed by experienced trial counsel.

In the gorilla study participants were permitted to see a video of the scene they had just watched but this time with the goal of looking for something unexpected; many could not believe that they missed the gorilla. In hindsight, the presence of a gorilla seems so obvious. Similarly, lawyers, working on a case for months or years can't remember what it was like not to see the gorillas in their case. They present their cases as if key facts and evidence are obvious to all and as a result become the unwitting victims of juror blindness.

Helping Blind Jurors See

We know of two principle approaches to reducing juror blindness. The first and simplest to implement is repetition of key information. To use the perception researchers' paradigm, if you leave the gorilla in the room long enough, eventually someone will notice it. Yet, most trial evidence is not as prominent as a living, breathing, chest beating gorilla. In fact, two decades of practical experience tells us that repetition alone is often insufficient to achieve increased attention and often falls woefully short of affecting juror attitudes. The more challenging yet often more successful approach is to integrate important evidence so that it is consistent with juror expectations.

If the goal is to convince jurors that the company is a good corporate citizen in the context of a toxic tort case, listing charitable donations and community involvement often go unnoticed because they are not part of jurors' expectations and focus. And even if jurors should notice this information, it is often discarded as irrelevant. In such a case, jurors are focused on whether or not the company acted irresponsibly in managing potentially hazardous materials. This issue is personally relevant because jurors want to live in a safe world. Evidence of safe corporate policies and practices in the context of what was known at the time is more likely to be noticed as this is what jurors are focused on and expect to see and hear.

In the causation example, most jurors expect that the cause of death will be listed on an autopsy report. When jurors learn an autopsy was not performed (as is often the case in a product liability case) they then decide that causation matters but not because the defense has been hammering on the scientific evidence. In deciding causation it is unlikely that they will use the scientific evidence at all. An autopsy fits jurors' expectations about how cause of death is established. The lack of an autopsy is personally relevant in a way that the science evidence can never be.

Motivating jurors to notice key evidence requires the trial attorney to first determine the nature of jurors' case-specific expectations. This is difficult and challenging but will help jurors see the case, gorillas and all, perhaps for the first time.

References

O'Keefe, D., Persuasion: Theory and Research Thousand Oaks, CA: Sage, 2002.

Simons, D. and Chabris, F. Gorillas in Our Midst: Sustained Inattentional Blindness for Dynamic Events. Perception, 1999, 28, 1059-1074.