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Simple Jury Persuasion: Pictures, Words or Pictures + Words?
“A picture is worth a thousand words”. Most of us think pictures are more persuasive than words. Recently I ran across a sentence in an article saying “it’s commonly believed that we remember 20% of what we hear and 80% of what we see”. Or something to that effect. I don’t know about you but I don’t remember 80% of anything I hear or see and I have a pretty good memory. So I went to our trial consultant email list and asked who could tell me if the statement was supported by research for which they could identify a citation. Immediately, I began to get information from visual consultants.
The classic study in the field was from something called the Weiss-McGrath Report and it did say that we retain more in memory from pictures. In fact, the widely propagated [untrue] statement from that research was that there was a 650% increase in information retention by jurors when oral and visual evidence are combined. Wow! No wonder it is so widely cited. Too bad it isn’t even a little bit true [see pages 27-30 of the linked pdf for explanation]. Shortly thereafter, Ken Broda-Bahm wrote in to say that the study was quoted very often but was in fact misquoted and pretty bogus and based on an undocumented 1856 reference. (That isn’t a typo. We really mean 1856.) We were referred to Ken Lopez’ blog post examining visual persuasion. Finally, Laura Rochelois came to the rescue. She recommended we look into a book written in this century (2009) by Richard Mayer.
Mayer’s book is an academic text but there are myriad posts online reacting to Mayer’s work. Among the search results, we found chapter-by-chapter summaries in pdf format online at Michigan State University. Another nice resource is a 20 minute video interview with Mayer available on YouTube.
In part, Mayer says that it isn’t video or animation that results in learning. What results in learning is good instructional design and presentation. However, according to Mayer, optimal learning and retention is best when words and pictures are presented. Learning is increased between 64% and 121% according to studies Mayer completed between 1989 and 1996.
So the answer to the question about using pictures, words, or both? Not just pictures. Not just words. Both.
Richard E. Mayer (2009). Multimedia Learning, 2nd Edition. New York: Cambridge University Press. DOI: 10.1017/CBO9780511811678
Maybe you really should use PowerPoint in court!
PowerPoint is often maligned but new research shows a courtroom PowerPoint effect that is nothing to dismiss! When Plaintiff attorneys used PowerPoint slides, mock jurors thought the Defendant was more liable for the alleged behavior. When the Defense used PowerPoint slides, the Defendant was less liable in the eyes of the mock jurors. Seriously? Because of PowerPoint slides? Let’s look at what they did.
Researchers wanted to examine whether “PowerPoint slides may influence mock juror decision making in a civil case”. They predicted that “when either party used PowerPoint, liability judgments would be more favorable to that party”. They also examined what happened when only one side used PowerPoint. They conducted three separate studies, each with close to 200 participants.
We also need to mention the design of the PowerPoint slides used in this study. The researchers avoided “bells and whistles” and instead focused on displaying “graphs and charts to explain statistical evidence and modest animations to enhance visual contrasts”. They did not want the slides to entertain particularly–but to educate.
The study used actual case facts in which a railroad company was sued for racial discrimination by African-American employees. Participants watched one of four versions of trial videotapes. The videotapes contained only opening statements by Plaintiff and Defense attorneys. Each side was allowed 27 minutes, so the entire video was 54 minutes long. The researchers ultimately report that “lawyers’ use of PowerPoint can effect legal decision makers’ liability judgments”.
Study 1: 192 undergraduate students enrolled at two different universities were recruited (56.1% female, 59.9% White, 13.5% Asian-American, 10.9% African-American, 8.3% Hispanic-American, and 7.4% “other or missing”).
Study 2A: 180 participants enrolled in a US university as undergraduates were recruited (56.7% female, 28.9% White, 40% Asian-American, 5% African-American, and 26.1% Hispanic-American). The experimental design involved comparing 1) whether the Plaintiff used Powerpoint or not, and 2) whether the Plaintiff went first, or the Defendant. Before we go farther, we know as well as many of you that testing for an ‘order effect’ in court makes little sense legally since you start the trial with the Plaintiff opening, not a coin toss. But hey, order effects are real, so it’s good to test them.
Study 2B: 189 undergraduate university students were recruited (59.2% female, 28.6% White, 36% Asian-American, 6.9% African-American, 24.3% Hispanic-American and 4% “other or missing”). The experimental design was also a 2×2, with 1) Defense using PowerPoint or not, and 2) order of presentation– either Plaintiff first or Defense first.
When Plaintiffs used PowerPoint along with their spoken presentations, mock jurors held the Defendant company more responsible for racially discriminating against African-American employees. Conversely, when the Defense used PowerPoint slides, mock jurors saw the Defendant company as less responsible for the alleged racial discrimination. In other words, if you use PowerPoint, it strengthens whatever side of the case you represent.
On Study 1, although not in Study 2A or 2B (where PowerPoint use was manipulated by one party only), if only one party (either Plaintiff or Defense) uses PowerPoint, the effect was more extreme.
In Study 1, mock jurors recalled more information when the Defense attorney’s used PowerPoint. Defense use of PowerPoint resulted in mock juror’s more positive perceptions of the Defense attorney. In Study 2A and 2B, when an attorney used PowerPoint, participants recalled their evidence better and thought more highly of the attorney’s using PowerPoint.
Using PowerPoint also resulted in jurors endorsing the attorney’s case narrative and holding the Defendant more responsible (when the Plaintiff used PowerPoint) or less responsible (when the Defense used PowerPoint).
The researchers say that using PowerPoint helps jurors understand trial information better. At the very least, it affirms that it’s reasonable to call PowerPoint (and Keynote, and others) “Presentation Software”. It helps you construct a more effective presentation. The research on learning styles and recall of presented material makes this a pretty easy call. If you learn via multi-sensory approaches (seeing as well as hearing), your learning is going to be greater. There are ways of screwing it up (mostly by overwhelming jurors with graphic complexity and sensory overload) that can actually diminish recall and persuasion. So, use presentation software. Correctly.
This is a powerful initial foray into the role of PowerPoint in visual persuasion for the courtroom. While, as the authors say, we need more of this sort of controlled research, this information would say you likely need to use some visuals along with your verbal presentation. If you don’t, both you and your client (at least according to this study) will do less well than the opposition.
Park, J., & Feigenson, N. (2013). Effects of a Visual Technology on Mock Juror Decision Making. Applied Cognitive Psychology, 27 (2), 235-246 DOI: 10.1002/acp.2900
For more information about research on multi-sensory learning and how to ‘get it right’, We recommend the following books:
Mayer, Richard E. Multimedia Learning. 2001 Cambridge University Press, New York, NY
Atkinson, Cliff. Beyond Bullet Points. 2005 Microsoft Press, Redmond, WA
Chosen, Stephen M. Clear and to the Point. 2007 Oxford Univ. Press, New York, NY
A new issue of The Jury Expert is up!
As Editor of The Jury Expert, I get to see everything we publish early and so I’m always really excited (and relieved) when we upload to the web. We have a new issue for your reading pleasure. And if you haven’t seen it, the time is now. Here’s what you can expect to see at the Jury Expert site:
The Eyeglasses Effect Revisited
by Michael Forster, Gernot Gerger and Helmut Leder
Another addition to the literature on how wearing eyeglasses changes how others perceive us. We’ve heard about the “nerd defense” and that glasses often make you less attractive. Well, guess what?! If you wear a certain style of glasses, you not only look more intelligent and trustworthy, but you are no less attractive. Whoa! Schedule time for a quick visit to an optical shop once you see this.
Beyond Expert Credentials: Every Aspect of Credibility Counts
by Charli Morris
Ever had an expert witness object to a question posed by opposing counsel? Or have your expert’s testimony include an expletive like ‘Holy Mackerel!’? If you have not, be grateful and read this article so you are prepared when it does happen. If you have, you will be grateful for this article from Charli Morris on how to prepare your expert to testify in a way that is credible and likable to jurors.
Does This Recession Make Me Look Black?
by Chris Rodeheffer, Sarah Hill and Charles Lord
When we are in plentiful economic times, Whites label Biracial faces as White. When we are in times of scarcity, Whites label Biracial faces as Black. Three evolutionary psychologists present some basic research on our tendency to define in-group and out-group members differently depending on whether we see our world through a lens of plenty or poverty. Four ASTC member trial consultants respond and some of them don’t like what they see here.
The Power to Judge: Social Power Influences Moral Judgment
by Jim McGee
How does our sense of social power influence how we respond to evidence and argument in the courtroom? Jim McGee gives us a summary of his original research and specific ways we can apply his findings to various sorts of cases and tasks throughout the case preparation process.
3 Critical Components in Litigation Graphic Design That You’re Not Doing
by David Mykel
How can you use your litigation graphics most effectively to tell a visually compelling story suited to today’s demanding courtroom audience? David Mykel offers three tips and provides examples of graphics that tell the story you want your jurors to hear.
When Should Lawyers Use Big Words?
by Adam Alter
Adam Alter’s new book is titled ‘Drunk Tank Pink’. If you know what this refers to, your life has been more exciting than mine. This book contains a plethora of fun-to-know facts that are based in research and not anecdote. There are ample “oh, that’s why that happens!” moments along the way. And you can listen to a 5 minute excerpt about just what “drunk tank pink” means on the web to see if this is something you would enjoy.
There are also new Road Warrior Tips and a new Favorite Thing. Go take a look! (Did I mention access is free?)
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Simple Jury Persuasion: “That was the witness who spoke so sadly”
Our mock jurors often assess the emotionality of witnesses during deposition or testimony. They comment when emotion seems excessive and they comment when emotion seems to be lacking. Those evaluative comments result in judgments–either negative or positive–for how jurors will remember witness credibility and reliability.
Some interesting new research adds more information to our knowledge of what jurors will remember after emotional (or neutral) testimony. Researchers examined the differences in how observers retain information after hearing emotional speech versus neutral speech. It likely makes sense to all of us that emotional speech captures our attention immediately. What this research looks at, however, is whether emotion has a lasting effect on how we remember what was said during the emotional speech. That is, do we remember words differently if they were spoken sadly versus when they are spoken neutrally?
Researchers had almost 100 participants (48 men and 48 women) listen to words spoken in either sad voices or neutral voices. Then they were shown individual words on the computer screen for very brief periods of time. Some were the same words they had heard verbally and others were words that had not been spoken aloud. The participants were asked for recognition (“is this an old word you heard spoken earlier or a new word?”) and attitudes toward the words. While the participants looked at the visual images, the researchers measured brain activity using EEGs to see if there was “evidence of vocal emotional coding”.
There was more word recognition if participants had heard the words spoken in the neutral tone rather than the sad tone.
When asked about attitudes toward the visually presented words, those that had been spoken in the sad voice were remembered more negatively.
Women were better at recalling the tone (neutral or sad) of the speaker’s voice than were men.
The researchers concluded that emotional voices not only capture the listener’s attention but also produce changes in long-term memory. Emotional voices assign emotion to otherwise neutral words.
In terms of litigation advocacy, this research has useful information for us. Jurors are going to remember emotional testimony. The emotional testimony may result in a negative recollection (as in “oh, that was so horrible”). And women jurors are going to be more able to identify (and then resonantly recall) the emotional testimony.
You don’t need to erase emotionality from witness testimony. It does need to be contained so that jurors don’t see the emotion as “over the top” and presume manipulation. If your witness deals with genuine emotion by becoming stoic and distant, explain that via earlier witnesses so that jurors can view the witness’ lack of emotion as a coping mechanism or a sign of shyness or pride rather than a lack of feeling.
Schirmer A, Chen CB, Ching A, Tan L, & Hong RY (2012). Vocal emotions influence verbal memory: Neural correlates and interindividual differences. Cognitive, Affective & Behavioral Neuroscience PMID: 23224782
Two Silly Ways to Make Serious Points
We like to be entertained. But we tend to overlook frivolity when potential lawsuit damages are staggering. Yet perhaps we shouldn’t. We like visual evidence a lot. But we know there is often resistance to using light-hearted persuasion efforts in high-stakes litigation. These two examples, though, could be very persuasive. And because of that, they are important to watch.
The first is apparently a viral video hit called “Dumb Ways to Die”. It’s silly. It’s in pastel colors. It’s a cartoon. It has a catchy and repetitive tune with almost an earworm sort of quality. And ultimately, it’s a PSA about train safety.
It has a very serious message presented in a glib and entertaining way. It is memorable. As is this next video.
We do a lot of patent litigation as well as work on intellectual property issues. We’ve found an educational (although sadly dated) video by the Federal Judicial Center on the patent system is very useful for mock jurors. It helps them understand how the system works and introduces them to terms they will hear repeatedly. It would be terrific if there was a catchier, updated version of that video.
But we don’t have one for you! What we do have is a catchy and modern video (clearly not produced in an effort to educate in an unbiased way) on why software patents are unnecessary! In this easy to watch and understand video, Marginal Revolution writer and George Mason economics professor Alex Tabarrok argues for an end to software patents. It isn’t goofy like “Dumb Ways to Die” but it is cartoon-based and has a powerful argument (for freeware and open source advocates). We are not getting into the fray, but it’s worth watching.
The point of showing you these two, arguably frivolous videos is to illustrate how a good video can be both entertaining and informative. You want jurors to remember your points. You want your arguments to make sense. You also want them to stay awake during the often dry and technical arguments of a patent or IP case. This style of video will both educate and entertain. Yes, it’s a risk. But so are dry and boring patent tutorials.
So, when confronted with the question of “which risk is worth taking for my case?”, it’s time to do some testing with mock jurors. They’ll tell you how to get the story across.
***We appreciate being included in the ABA Blawg 100 for the third year in a row! If you like our blawg, take a minute to vote for us here (under the Trial Practice category). Thanks! Doug and Rita***
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