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Although the accurate formation and recollection of memories is the keystone to jury decision-making, the underlying cognitive processes involved typically are not well understood by attorneys. Failure to appreciate these underlying cognitive processes may inadvertently lead counsel to present their cases to jurors in a fashion that makes accurate recollection difficult and, as such, leads jurors to make decisions based purely on value characteristics such as “fairness.” Clearly, this is a risk that few attorneys want to take. As litigation continues to grow more complex in terms of the facts presented and the law that must be applied, it will become more important that attorneys understand some basic issues in cognitive psychology, so that they can better predict how a jury will perceive and decide their cases. Simply put, jurors often lack the cognitive capacity to fully understand the subtle details and complexities observed in complex litigation. Andrew R.A. Conway et al., “Working Memory Capacity and its Relation to General Intelligence,” Trends in Cognitive Sciences (7), 547-552 (2003). Coupled with the unique experience of being a juror, which places additional cognitive demands on most people, it should not be surprising that jurors often fail to remember or appreciate critical details of a case. Consistent with the findings of years of research in cognitive psychology, jurors tend to recall the “big picture” and a few critical details of a case rather than a grocery list of every key fact or argument that was presented by counsel. Michael P. Toglia, “Recall Accuracy and Illusory Memories: When More Is Less,” Memory, 233-256 (1999). For example, jurors typically are good at remembering big-picture aspects of a trial, such as general allegations of corporate malfeasance, that an insured had a claim rejected for suspicious reasons or that there was some kind of injustice that needs to be corrected. They are less likely to remember detail-specific information from witness testimony and documents. While the jurors may attempt to remember each detail, fact and argument made by the attorneys, their cognitive processing abilities simply are not built to work that way. In fact, the human cognitive processing “default mode” is set to take in information to form a big picture, not to record every single detail for later recollection. Of particular interest are the facts and/or arguments that jurors do remember. Frankly, “remember” may be too strong of a word for what jurors subsequently recall during deliberations, as it implies that such “memories” reflect a veridical representation of what was presented at trial. Often during deliberations, jurors seemingly conjure new facts and arguments, or twist presented facts and arguments into notions consistent with their final verdict. When jurors are given an overwhelming amount of information to digest and process, it is not surprising that they often default to their own preconceptions of fairness and use that to guide their deliberations. Despite the existence of certain conscious biases, most jurors who make it through voir dire are able to put those aside and attempt to be fair to all parties. Thus, it is important to understand the unconscious processes involved in the formation and retrieval of memories that become the basis for the deliberative process. The false-memory effect For more than 70 years, cognitive psychologists have described memory retrieval as a “reconstructive process,” in that it is more similar to the process of putting together a puzzle than to viewing a direct playback of the information presented. Frederick C. Bartlet, Remembering: A Study in Experimental and Social Psychology (1932). While reconstructive processes are efficient (because there is no need to store every single memory), they have a major drawback. More often than not, memories are not reconstructed completely. Recollection typically is based on incomplete information, although people can discern the gist of what the puzzle represents despite missing information. This is acceptable for normal day-to-day activities, as people rarely rely on detail-specific recall. In fact, they typically recognize their own limitations and take notes or use some other peripheral means to aid memory when details are critical � a grocery shopping list, for example. In a trial, where details are critical, this poses a significant problem. More often than not, jurors fill in missing pieces of the trial puzzle with something that is consistent with the overall picture or conclusion that they draw. This explains how jurors seemingly conjure facts or arguments during deliberations that, although not presented, are consistent with their ultimate verdict. A phenomenon known as the “false memory effect” may shed light on the processes involved in juror memory retrieval. The effect is rather simple, and easy to demonstrate in a research setting. Henry L. Roediger and Kathleen B. McDermott, “Creating False Memories: Remembering Words Not Presented in Lists,” J. of Experimental Psychology: Learning, Memory and Cognition (21), 803-814 (1995). The basic finding is that when people are asked to remember associated material, they often make consistent recollection errors in which they include information that, although not presented, was associated with the rest of the material. For example, when told that they have to remember a short list of words such as “bed,” “rest,” “wake,” “dream,” “night,” “stars” and “alarm,” people often recall with high confidence that the word “sleep” was on the list, even though it was never presented. This suggests that the process of memory recall is one in which people are reconstructing a memory, and using what appears most likely to fill in their gaps in recollection. False memories are memory errors that fall under the category of memory intrusions. These errors occur when people seemingly conjure up memories of events that did not actually occur. This type of memory error is particularly dangerous for attorneys because it suggests that jurors can make mistakes even when trial presentations are carefully thought out and presented in a seemingly coherent fashion. The false-memory effect is an important one for attorneys to be aware of, because it is clear that in most of today’s litigation, jurors not only will be unable to remember all of the information that they are presented with, but that they also may conjure up what is likely in their own minds. These likely memories may be based on pre-existing thoughts and beliefs about corporations, lawyers or insurance companies, and are strongly related to jurors’ life experiences. While the voir dire process may help to identify jurors’ pre-existing beliefs and biases, it is impossible to identify every possible hole that may arise in jurors’ memories and how those holes will be filled. A more effective strategy is to identify where jurors’ comprehension is lacking and subsequently adjust discovery, strategy decisions and arguments, so that jurors don’t form erroneous and potentially disastrous conclusions. Errors of transformation Perhaps more interesting to attorneys are errors of transformation, in which a juror seemingly morphs a partial memory into something that was not presented, and that ultimately may affect the way the juror decides the case. People tend to be less aware of these errors because there is not a feeling of absence in their experience of recollection that is as easily perceivable, as with “I can’t remember where I put my keys.” Daniel L. Schacter, The Seven Sins of Memory: How the Mind Forgets and Remembers (2001). Rather, there is a “memory” in place, but the memory itself is inaccurate. In trial, these errors may manifest as confusing who said what in an e-mail, how the law should be interpreted or any other host of potentially disastrous transformations that could lead to an adverse verdict. It is important for attorneys to understand the underlying cause of memory transformations and intrusions, as it allows them to avoid pitfalls in their presentations that ultimately could have costly effects. Again, it is important to keep in mind the puzzle analogy to memory retrieval: Jurors fit together the pieces that they think they remember to create an overall picture of the case. An example of how an average juror’s cognitive processing system works during trial presentation and deliberation may illustrate these points further. Consider a two-week intellectual property trial, with several patent claims at issue. From the juror’s perspective, there may be an overwhelming amount of information to remember, and a lot of that information sounds similar and is easily confused. From the perspective of accurately remembering the information that was presented to them and basing their decisions on those accurate memories, jurors in a case like this are in a particularly difficult situation. First, it is unlikely that the average juror has the same level of cognitive capacity as trial counsel. He or she may find it difficult to recognize subtleties in the claims at issue and the laws that govern those claims. Second, unlike trial counsel, the jurors lack the luxury of spending months or years with the information to become adequately acquainted with the facts. They are under pressure to learn the information at the court’s pace. Yet when jurors retire to the deliberation room, they must somehow reach into long-term memory to put together the pieces of the case and arrive at a fair and just decision. The problem becomes an issue of there being a large box of puzzle pieces, many of which look similar in nature. Because the jurors may not be able to distinguish subtle differences between the pieces, they simply morph some of the pieces together and fill in gaps the best way they can. As a result, the picture put together by the juror is not the same as the ones presented by either attorney. Specifically, jurors forming intrusions is akin to a person adding pieces to a puzzle that did not exist. Transformations, on the other hand, are akin to a person warping a puzzle piece to fit into a place where it does not belong. The phenomenon is observed in virtually every mock trial, as well as in post-trial interviews with actual jurors. Despite the diligence of attorneys on both sides, jurors often reach decisions based on their own hybrid fabrications of the trial presentations. Pretrial research can help To effectively combat jurors’ cognitive shortcomings, trial counsel should adopt a two-pronged approach. First, they should actively seek out, through the use of pretrial research programs such as focus groups or mock trials, exactly which pieces of their case are the most difficult for jurors to remember and comprehend. Although trial counsel often have insights into the particular sticking points of their case, it is important to keep in mind that jurors do not think and solve problems the way attorneys do. It is more important to be correct than clever with regard to trial presentations. One of the most critical aspects of effective litigation assessments is assessing how and why jurors process information � what they are capable and incapable of, cognitively. Jury-level assessments of what will likely happen at trial are the basis of winning strategies. Effective pretrial research eliminates the guesswork about where the potential holes are for jurors, but it is not always enough. The second step is to develop effective analytical graphics that address the shortcomings in juror comprehension. “Effective” is the operative word here, and it does not simply mean “PowerPoint.” Rather, it is important to develop empirically tested and aesthetically pleasing graphics that will both help educate the jurors and provide them with a recall cue for the most accurate and strategically beneficial recall possible. Failure to appreciate and plan for jurors’ cognitive shortcomings leaves counsel in the precarious position of hoping that jurors understand and appreciate the evidence and arguments presented at trial. Steve Tuholski is a litigation consultant with Courtroom Sciences Inc., a litigation consulting firm headquartered in Irving, Texas. He holds a Ph.D. in cognitive psychology from the University of South Carolina and his specialties include trial strategy, identification of case themes, voir dire strategy and juror profiling. He can be reached at [email protected].

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