Why don’t those darned jurors hear what I am telling them? Or, asked differently, what did that lawyer mean by giving such an incoherent opening statement – didn’t they realize that details were missing? The answer is that the opening statement may been ‘internally coherent but externally incoherent.’ And how this can occur is best understood by learning about the “tappers” research
That phrase – internally coherent but externally incoherent – is one this author generated after reading an opening statement from a Pennsylvania criminal trial. There was a hint of a story, but new names and seemingly disconnected events were thrust at the jury in a way that no one who had yet to read the discovery could grasp.
How could the presenter be so unaware of the failure to communicate? The answer comes from the 1990 “tappers” study. A Stanford University graduate student, Elizabeth Newton, asked study participants to think of a well-known song and tap out the rhythm to that song on a table-top. For each tapper, a separate participant had to listen to the taps and ‘name that tune.’ [Try this – take the song “Happy Birthday” and tap out its rhythm as you sing it to yourself.]
Not surprisingly, out of 120 tapped songs, only three were correctly identified. But Newton focused on the tappers’ expectations – and they predicted a 50% success rate for their listeners. What was the take-away? The tappers had the knowledge of the song in their heads, ‘heard’ it as they tapped, and attributed that knowledge to their listeners.
That type of cognitive processing and its consequences have been labeled “the curse of knowledge.” It afflicts legal writing (and writing in other contexts – see The Source of Bad Writing; The ‘curse of knowledge’ leads writers to assume their readers know everything they know, Pinker, Steven . Wall Street Journal (Online); New York, N.Y. [New York, N.Y]25 Sep 2014)). It even impedes medical diagnosis and treatment. J. Howard, The Curse of Knowledge, Chapter 9 in COGNITIVE ERRORS AND DIAGNOSTIC MISTAKES (Springer 2019). And research continues to affirm the phenomenon. Damen et al., Can the curse of knowing be lifted? The influence of explicit perspective-focus instructions on readers’ perspective-taking. Journal of Experimental Psychology: Learning, Memory, and Cognition, Vol 46(8), Aug, 2020. pp. 1407-1423. Ultimately, it is core to modern persuasion theory across all domains, a point driven home by Chip and Dan Heath in MADE TO STICK (Random House 2007).
Little has been written about this specific to courtroom advocacy. One article identifies how this works [or causes failure] at trial:
By the time a case reaches a jury, the trial team is waist-deep in depositions, evidence, and briefs, which have been collected over a course of months or even years. The attorneys have thought through a plethora of conceivable issues that could arise at trial and have formulated responses. The case is engrained in their minds and, consequently, they can overestimate the ease with which jurors will understand their case. Attorneys have the benefit and the limitation of knowing too much about the case and the law, often resulting in too many layers of assumptions and presumptions about the messages sent to jurors.
O’Toole, Boyd and Prosise, THE ANATOMY OF A MEDICAL MALPRACTICE VERDICT, 70 Mont. L. Rev. 57, 61 (Winter 2009). The authors diagnose this as having a presenter who is sender-based rather than audience-based. Id., 60.
Can the curse of knowledge be overcome? The first (necessary but not sufficient) step is to remember that what is needed is a “concrete” story. Beyond that, however, the research by Damen offers little hope in terms of going it alone – trying to make oneself ‘hear’ as the uninitiated would is a difficult task, although one advocate has urged a weekend of forgetting about the case and then returning to it anew, which he promises offers a fresh understanding of what jurors might need to know. Perdue, SYMPOSIUM: THE “BEST OF” LITIGATION UPDATE 2017: PERSUADING THE NEXT GEN JURY (OR ANY GEN FOR THAT MATTER), 79 The Advocate 203, 209 (2017). [In a subsequent article, Perdue suggests that lawyers also reimagine their case after jury selection has occurred, as knowledge of juror backgrounds and interests can inform how best to present the information. Perdue, SYMPOSIUM: EFFECTIVE TRIAL ADVOCACY: PRESENTING EVIDENCE WITH AN EYE TOWARD YOUR JURY, 90 The Advocate 44 (Spring 2020).]
But there are remedies once the presenter is aware of the risk – and the simplest/best is to find a test audience. Give the opening to an audience with no familiarity with the case, and then test whether the story landed by asking for it to be told back to you – or pepper the audience with questions that can be answered only if ‘your’ story became theirs.
The same is true in appellate advocacy. Share the statement of facts with someone and then see if that reader can make sense of your legal arguments or needs more information.
Until lawyers become audience-based and aware of their ‘tapper’ proclivities we will have presentations that are externally incoherent. [For a quick “tapper” tutorial for your advocacy students, show them the youtube video https://www.youtube.com/watch?v=rPAryjQs-Pw