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Simple Jury Persuasion: Using your expert  witnesses’ hands to help persuade jurors

Monday, January 16, 2017
posted by Rita Handrich

You may have seen our blog post where we talk about research that informs us in patent work to either allow jurors to examine a disputed invention up close or to simply have them view it from a distance. Which strategy we recommend you use all depends on the evidence and your specific case. Today, we have another one of those sorts of research articles that we think gives insight into a way to persuade unobtrusively by using the hands of your expert witness.

In brief, these researchers examined ways “interacting with our world” changes how we think. They asked research participants to figure out how to group 17 zebras into 4 pens and still have an odd number of zebras in each pen. They had some participants use iPads (the modern-day equivalent of pen and paper) while others were given objects with which to represent pens in which they corralled 17 small plastic zebras.

While the iPad users were unable to solve the puzzle, those who were given a chance to manipulate the small objects with their hands were able to successfully solve the problem. (The solution involves overlapping pens—like those Venn diagrams you were exposed to in high school algebra.)

The researchers explain the results by saying that the idea that problem-solving occurs in our heads, is simply incorrect. For some types of problems, we need the benefit of manipulating objects with our hands to successfully identify solutions.

There was another thing mentioned in this article we found of particular interest. We have always found creative people can sometimes make good jurors in patent or high technology cases because they are able to think outside the box and they understand the importance of intellectual property. In this study, the researchers found that creative participants were able to solve the problem faster than others when given manipulatives with which to attempt solutions.

The researchers think this approach (i.e., engaging with the material world) is “an enabling condition for conceptual change”. What that means is, when you are given objects (whether those are small zebras, or your fingers, or something else you can use to visualize) you are more able to make the creative leaps of inference necessary to solve problems that seem impossible to resolve.

So, here is a creative leap of our own.

Consider using a document camera (like an Elmo), or a magnetic board with movable pieces in the courtroom to have your witness or inventor demonstrate how s/he solved an heretofore impossible problem.

When you are encouraging jurors to be creative, you don’t know where that creativity will take them. The uncertainty makes the strategy feel very risky, and most trial lawyers will opt to go with an approach that involves asserting a position and providing evidence that supports it.

But research strongly informs us that if a person ‘discovers’ a truth through their own internal process, they ‘own’ it much more strongly. If you test an ‘aha!’ approach to presenting the science in a focus group or mock trial you can gauge what jurors do with it, and decide whether it is fruitful for your case and your client.

Jurors in patent and high technology cases are always hungry for the “creative spark of inspiration” that resulted in an invention and if they can “see it” through the inventors’ hands—it would be interesting to see whether they would more strongly identify with the inventor’s position.

Vallée-Tourangeau F, Steffensen SV, Vallée-Tourangeau G, & Sirota M (2016). Insight with hands and things. Acta Psychologica, 170, 195-205 PMID: 27569687

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