Chapter 15

• Jurisdiction: United States

Chapter 15

How to Make the Story Stick

I think, therefore I am.

—René Descartes, philosopher

Overview

From a persuasion and storytelling standpoint, if the presenter spouts too much information too quickly, the audience’s memories get overloaded. The critical few points the presenter needs the audience to remember aren’t stored in their memories. It’s as if those critical few points don’t exist because the audience hasn’t remembered them. Of course, the message won’t persuade in this vacuum.

Cognitive overloading occurs often in the presentation of a complex case largely because so much of the information is unfamiliar and unmeaningful. (I will explain shortly what unmeaningful means in this context.) Understanding how human memory works—and the challenges your audience faces in retaining unfamiliar and unmeaningful information—is critical to delivering a persuasive story.

This chapter provides guidance on how to make the story of your complex case stick in the memories of your audience. It begins with a story that may help to illustrate this cognitive-overload problem. Then, it discusses the three types of memory that function to process and store information. Finally, it offers three strategies for preventing, or at least minimizing, cognitive overload.

The Story of a Mock Jury and a Frustrated Trial Lawyer

This is a story about a mock jury exercise and a frustrated trial lawyer. If you have ever participated in one of these exercises or observed one, you will relate to this story. The primary purpose of this exercise is to test how the mock jurors respond to the liability evidence. That is, do they believe that the lawyer’s case holds water?

The story begins with the trial lawyer feeling ready for his presentation. He is convinced he has selected from the vast case record the right evidence needed to persuade the mock jurors. His presentation will proceed from a brief introduction of the client and the opposing party, to a lengthy discussion of the liability evidence, and a wrap-up explaining why the lawyer’s client is not liable. He concludes he doesn’t have time to also discuss the damages evidence. At the client’s urging, however, he agrees to discuss the damages evidence briefly to get a sense of the mock jury’s reaction. The lawyer has a lot to cover within the hour allotted for his presentation. He’ll need to move quickly through his seventy-eight PowerPoint slides and the several video clips of key witnesses’ deposition testimony.

The lawyer delivers his presentation to the mock jurors. Because he is running out of time, he skips several slides—quickly clicking through them to arrive at the slides he believes are most important. His presentation exceeds the one-hour time limit by ten minutes.

The lawyer returns to the team room. His team and the client congratulate him for a job well done.

Then the mock jury begins deliberations. The lawyer and his client watch and listen to the deliberations behind a one-way, glass window that allows only those persons in the team room to hear and watch the deliberations. While monitoring the deliberations, the lawyer and client hear one juror say, “If I only knew fact X [some important fact], I would know who is telling the truth.” (From here on, I will refer to fact X as “critical fact X.”)

Other jurors nod in agreement and join in. “Yes,” they say, “that lawyer never told us critical fact X.”

Growing frustrated while watching this unfold, the trial lawyer speaks to the jurors from behind the glass window: “I told you critical fact X. I told you it twice!”

Then another juror pipes in. With great confidence, the juror states that critical fact X was stated by the lawyer. Trouble is, this juror grossly misstates critical fact X, remembering it all wrong.

Hearing the juror completely misrepresent critical fact X, the lawyer shouts from behind the glass window: “That’s not what I said!”

What’s happened here is that some jurors never stored critical fact X in their long-term memories, and other jurors incorrectly stored critical fact X in their long-term memories.

At this point the lawyer is anxious, frustrated, and dismayed. The client sits quietly, growing increasingly uncomfortable. The lawyer laments: “How can you not remember what I just told you?”

Are these bad jurors? Are they just not smart enough to remember what the lawyer said? Are they lazy and didn’t try hard enough to pay attention? The answer is no to all of these questions. They are good jurors with average intelligences. They are committed and determined to arrive at a fair result.

The problem our lawyer has is that he caused cognitive overloading. The jurors couldn’t remember, or they incorrectly recalled, what the lawyer had told them because the information was never encoded or it was improperly encoded into their long-term memories.

The Three Memory Types

Our brains contain three types of memory: sensory, working, and long term. From a retention standpoint, the three memory types are not equal. Sensory memory has the smallest retention capacity, then working memory, then long-term memory.

Here’s an analogy to help you understand the size of the three memory types. Picture three buckets, labeled “sensory memory,” “working memory,” and “long-term memory.” The sensory-memory bucket is the smallest of the three, about the size of your thumbnail. The bucket for working memory is considerably larger, like the one you use when washing your car. The bucket for long-term memory is huge. Picture a bucket a million times the size of the working-memory bucket—a bucket about the size of the Empire State Building.

The good news about our long-term memory is its ability to store massive amounts of information. It is impressively large, perhaps even limitless. Scientists who study the human brain don’t know the full storage capability of our long-term memory.

But there is also some bad news, particularly for a trial lawyer trying to persuade a jury. For new information to make it into long-term memory, it must first pass through sensory and working memory—and the transfer is not automatic or guaranteed. Getting new information—especially new and unfamiliar information like the kind presented in a complex case—transferred from sensory and working memory to long-term memory is difficult. Sometimes it is very difficult.

Sensory Memory

The starting point for creating any memory is sensory memory. Everything we perceive, every individual impression from all five senses, goes into sensory memory. That’s literally thousands of inputs going into our sensory memory whenever we are conscious and have the ability to perceive.

At this moment as your eyes read the words on this page, your sensory memory is being flooded with new information. And it is not just what you think you are paying attention to—i.e., the words on the page. Your sensory memory is busy registering sensory input like your body position (how it feels to sit in your chair), the...