The picture illustrating this post increases the likelihood you will see the post content as true. Enough said. But, you know we’ll say more. This is a fascinating addition to the visual evidence posts already on our blog.

We agree that a well-designed visual can raise comprehension for jurors in a complex trial. What this research says is that certain types of uninformative graphics can also increase the likelihood that the  written information accompanying the graphic is true. Or perhaps, truthier. After all, as Stephen Colbert is fond of saying, “You don’t look up truthiness in a book, you look it up in your gut.”

Researchers performed four different experiments with participants living in either New Zealand or Canada:

Experiment 1A and 1B: Showed participants pictures of celebrities (famous and otherwise) or no photo at all, along with statements that the celebrity was either alive or dead and participants were asked to judge the truth(iness) of this statement. When photos of the celebrity were included, the participants were more likely to assume the truth of the statement as to whether the person was alive or dead. The picture persuaded agreement.

Experiment 2: Showed participants the name of a celebrity (famous or otherwise) along with a photo (or not) and either no written description or a written description that was “nonprobative”–and always contained information on ethnicity, gender, hair, general occupation and a career-related concrete noun (e.g., “John Key is a white male, short brown straight hair, political leader, podium”). When the participants looked at these stimuli, they were equally likely to see truthiness when the stimuli had non-probative information as when there was a photo. In other words, there was not only a photo effect for truthiness of the alive or dead statement–when additional nonprobative information was added, the truthiness effect also occurred.

Experiment 3: Showed participants “nonprobative photos” (or no photo at all) along with accompanying text (which stated easy or difficult to know information). For example, a photo of a turtle accompanied a statement “Turtles are deaf” or a photo of macadamia nuts was shown next to a statement saying “Macadamia nuts are in the same evolutionary family as peaches”. Again, photos produced a truthiness effect. When participants saw an illustrative albeit nonprobative photo, they were more likely to endorse the truth of the statement.

The researchers suggest that when we are given nonprobative information (in the form of photos or written information) we are more likely to presume the truth of that “pseudoevidence” we can see with our eyes. They describe their findings as “lovely” with the following charmingly non-academic conclusion:

“We describe the photo effect as “lovely” for two reasons. First, as compared to the other “truthiness-inducing manipulations” with which we have experience, the effect of nonprobative photos seems to be quite robust. [snip] Second, we believe that it is just plain cool that the same manipulation that can lead people to think that an obscure celebrity is alive can also lead them to think that the celebrity is dead.”

We concur (it is just plain cool). Although we think it would be a hard sell to tell that high-tech attorney (or the judge or opposing counsel for that matter) that we can just stick any old (nonprobative) photo on the visual evidence prepared for the jury or skip the photo altogether and just say “The plaintiff is correct” or “The defendant is correct” and then add some nonprobative text and it would be just as persuasive as a carefully designed piece of visual evidence.

An additional component of this phenomenon, though, seems to be one of ‘context’. People feel more comfortable making decisions if they understand the circumstances surrounding the topic, even if the circumstances are nonprobative.

We see this in focus groups all the time, when jurors listen carefully to information gathered in discovery, and start asking questions. Clients are often struck by the range of things that jurors feel would be helpful for them to know. When the juror is asked in response to their query “How would it be helpful to you to know that?” they sometimes have an answer, but often they explain “I don’t know. I’m just curious.” They seek truthiness. The attorney wishes they had held the group before discovery was closed and reports were final. And the next time around, that attorney conducts the focus group earlier in the litigation.

This is intriguing research that suggests that we are perhaps not as complex in our judgments as we would like to believe. And, it gives us a way to understand jury conclusions as to truth(iness) that otherwise make absolutely no sense to us at all.
Newman EJ, Garry M, Bernstein DM, Kantner J, & Lindsay DS (2012). Nonprobative photographs (or words) inflate truthiness. Psychonomic bulletin & review PMID: 22869334

Image

A recent infographic created by the folks at MedicalBillingandCoding.org is a terrific example of the persuasiveness of visual evidence. We are fans of visual evidence and have written about the appeal several times. Your graphic doesn’t have to be starchy and technical and, in fact, it’s better if it isn’t.

The complete graphic “Sitting is Killing You” is cartoonish and memorable. It draws you in and informs and entertains you so that you remember the gist of the message. The tone is light and amusing. The message is about life and death. Your personal death.  And then comes the coup de grace.

You reach the end of the infographic and are offered the sources— Government offices. Major newspapers and journals. Medical journals. Respectable and staid entities that “must be” credible.

It’s a bit like that old trick of attorneys who walk in with a thick notebook or several paper boxes that are obviously heavy. They plunk them down on the table and then refer to them as “all the studies that support this position”. They do not name all of them. Just a few. But the weight of the boxes (and the presumed evidence) often hits the mark with at least some jurors.

So whether it’s the weight of the evidence or the weight you accrue as you sit on your butt and shorten your life—this cute and memorable infographic has lessons for us:

1. Make your visual evidence non-threatening.
   1. What is less threatening than a cartoonish approach? And you can obviously use this for life and death issues. But you can also use it [albeit a bit more carefully] for dry and confusing high-tech issues.
2. Carefully give credible references for your visual evidence.
   1. Your visual evidence will certainly be vetted by opposing counsel and the judge. The reason for the inclusion of references has to do with the jurors. You want the friendly graphic appearance to help jurors believe they can grasp even complex information. You want the source information so jurors know they can trust the information as credible.

It’s like being a good host. You serve up interesting and engaging information and show it to be credible for the layperson by invoking all the ‘experts’ in your reference list.

Not too many. (You want them to read it. You want it to have impact but not overload their attention.)

Not too few. (You want it to seem like there is much to support your position.)

Jurors (and likely your client) will appreciate it.

Joffe, H. (2008). The Power of Visual Material: Persuasion, Emotion and Identification Diogenes, 55 (1), 84-93 DOI: 10.1177/0392192107087919

It’s tempting to push a hard sell to jurors. You have lived with the case for so long that ‘if only’ they knew the facts they would surely agree with you. You may even find yourself selling your case in voir dire. We’ve written about the hard sell idea before and we would say it’s what happens when you confuse argument with persuasion. We are not fans of the hard sell although we understand the temptation.

Is the alternative a ‘soft sell’, where jurors are offered what to conclude from the evidence? They may be told via expert witness testimony (“so what this means is…”) or through other direct examination queries (“so you could not possibly have done what the plaintiff claims you did”). The problem with the soft sell approach is that jurors may resent your drawing conclusions for them, or it can seem too simplistic. We are all familiar with the theories on different learning styles and certainly all aware of the lure of the internet as a juror ‘aid’ to understanding case facts.

It’s probably not surprising to regular readers of this blog that we are proponents of the ‘no sell’ approach to litigation persuasion.  It’s sort of like the overheard whisper of Joe Biden to President Obama at the announcement of health care reform legislation. That stage whisper went viral. It’s like the power of an overheard whisper.

We think the best way to the hearts and minds of jurors is to tell a story that contains all the dots and allow jurors to connect them on their own.  The gentle stretch to that is to have witnesses testify about how they connected the dots, so the jurors can be comforted that if they go there, too, they won’t be alone. To trial lawyers it can feel like working without a net. The reality is that a simple story, told honestly and clearly, with structure clarified through the use of timelines and terrific graphics, lets jurors use hindsight productively to see your case theory/story clearly.  Do it with thematic repetition, and the perspective sinks in.  It is scary the first few times—this idea of trusting jurors. The advantage is that jurors sense your trust in them and it inspires them to be the best versions of themselves as they deliberate.