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Choosing the right words to convey an idea is largely, if not entirely, dependent on your audience. If what you say does not conform to your audience’s current understanding, they will experience cognitive dissonance � a feeling of discomfort due to the discrepancy between what they already know or believe, and the new information or evidence you are providing. The brain may engage in all manner of gymnastics to alleviate this discomfort. For example, I recently experienced a little cognitive dissonance of my own shortly after I learned my wife was pregnant. I was at home one evening engaged in typical male activities � sitting on the couch with a mouthful of pizza watching sports. My wife came home dressed in her volleyball gear, dropped her gym bag on the floor, and stood staring at me for a moment. “What’s up, Bunny?” I asked, giving my best interested husband impersonation while keeping one eye on our new, gigantic flat screen. “I have good news and bad news,” she replied, “what would you like first?” I went for the bad, and learned that her volleyball team had lost and was bounced out of the post-season tournament. The good news was that she was going to have our first child. I think it was largely due to the context in which I got this news that I became convinced she was carrying a boy � a future NFL hall of famer, no less. For the next few months I spent a good part of each morning thinking up baby names, and my list of boy names easily outpaced the girls. Just as I was settled on a few strong, manly names that would sound good when shouted by a sports announcer during a spectacular play, we went in for our second ultrasound. According to the pregnancy books, it was still too early to determine the sex, but we asked the technician to check anyway. She wheeled her magic wand around Bunny’s tummy, announcing as she went along the baby’s various anatomical features appearing on a nearby black and white screen while she cooed at how perfect and healthy our baby appeared. She pointed out the face, hands and feet before she finally hit upon a between the legs view and announced, “I don’t see anything. It looks like you have a little princess!” Later, as we walked to the car, Bunny asked whether we should go ahead and paint the second bedroom pink. “Why?” I asked, “What if it’s a boy?” Bunny stopped in her tracks and gawked at me, incredulous. “Didn’t you just hear what the lady said? It’s a girl.” The lawyer in me could do naught but sigh at Bunny’s total failure to perceive the obvious. “She didn’t say anything of the sort. She said she couldn’t see anything. Heck, I couldn’t see anything when she was trying to point out the face. That doesn’t mean the baby doesn’t have a head.” “Oh for god’s sake,” said Bunny “can’t you just admit it’s a girl? Here, look.” She held out a fuzzy ultrasound photo where the technician had labeled a blank area between the alleged legs “GIRL.” I held the picture up to the light and squinted at it with marked disapproval. “That’s simply an empirical prediction based on imperfect information. I’ll reserve judgment for when we have some tangible evidence.” Bunny pursed her lips and reached out her hands as if to strangle me, but instead curled her little fists and shook them in frustration. As she turned and walked on to the car, I could have sworn I heard her mumble something that sounded roughly like “freaking lawyers,” but she denied it. In the ensuing weeks, whenever someone asked whether we knew the sex yet, Bunny would say, “It’s a girl,” while I would counter, “The technician didn’t see anything so she thought it was a girl.” At which point Bunny would jab me with the sharpest thing she had available and tell me to stop saying it that way or people would think I was disappointed and wanted a boy. “That’s not true,” I would exclaim. “I don’t care what gender our child is, I’m just trying to be 100% accurate. I don’t want to mislead anyone.” “Great,” said Bunny. “Well, if you’re asked to testify on the subject, you can say it your way. Otherwise, just say girl.” Although, we had been in the same room, seen the same evidence and heard the same statements, we each perceived the situation differently. In Bunny’s view, we learned our new baby’s sex that day. In my view, we learned that ultrasound is not a perfectly accurate technology for determining gender early in one’s pregnancy. Although the technician very likely intended the former, communication is as much about perception as it is language. Even had the technician said the baby was a girl without equivocating, her evidence was assailable for anyone whose brain was previously wired to believe otherwise, even though the technician had no apparent reason to lie. For trial attorneys, these mental adjustments are especially risky. The subconscious mind may mark you as untrustworthy, causing your audience (a judge or jury) to disbelieve or dislike you. The conscious mind may create new evidence or make logical leaps to bridge the gap between what you have said and what the brain already believes. Either way, the result will be an audience that perceives something very different from what you intended to communicate. Although it’s impossible to know what is happening inside the head of a juror, a good lawyer, and particularly a good defense lawyer, will have the phenomenon of cognitive dissonance in mind when choosing whether to tell a story that doesn’t square with a pre-existing biases, such as a convincing story that the other side has already sold. In these instances, seemingly foolproof evidence may not only fail to convince the jury, it may also work against you. If you must succeed on the issue to win your case, consider insisting on particularly strong jury instructions, or admonitions from the judge just prior to your presentation, that will force jurors to give due regard to your evidence. Bunny and I haven’t yet been in for another ultrasound, but I’ve already picked out a girl’s name and planned out her life through her mid-thirties. If the baby turns out to be a boy now, it will take several months to reconcile that with the imaginary world I’ve created. Now I understand why so many people wait until delivery to find these things out. Ellisen Turner is an associate in the Los Angeles office of Irell & Manella LLP where his practice includes intellectual property litigation and patent prosecution. You may reach him at [email protected].

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