Chapter 8

• Jurisdiction: United States

Chapter 8 Keep It Simple—The Brain Has Limitations

Making the simple complicated is commonplace; making the complicated simple, awesomely simple, that's creativity.

—Charles Mingus, jazz musician (1922-1979)

In chapter 7, we explored the challenges of maintaining attention. Attention spans seem to be shorter now than they were when great orators made long speeches to appreciative crowds who marveled at the length, complexity, and nuance of the presentation. In 1858: the Lincoln-Douglas debates. Now: tweets and hashtags. Today's advocates must adapt to this modern reality by rethinking how trials should be conducted. Efficiency and brevity can be persuasive without loss of substance. "Short but sweet" and "keep it simple, stupid" may be the keys to convincing jurors.

The Science of Memory

In 1956, Harvard psychology professor George A. Miller wrote a now-famous article: "The Magical Number Seven, Plus or Minus Two. Some Limits on Our Capacity for Processing Information."¹ As the title suggests, Miller theorized that there was a limitation on how many serial items people could keep in their short-term memory. Over the ensuing decades, psychologists studied and tested Miller's theory, and in 2001, psychology professor Nelson Cowan, director of the University of Missouri Memory Lab, published a comprehensive update, "The Magical Number 4 in Short-term Memory: A Reconsideration of Mental Storage Capacity."²

Cowan believed that Miller did not seriously posit that seven was anything more than a place to start a scientific conversation about short-term memory and the effect of "chunking." (Chunking refers to the process of taking individual pieces of information and grouping them into larger units to increase the amount of information that can be remembered. For example, a telephone number of ten digits is more easily remembered in three "chunks"—822-555-1212. Cowan's research concluded that the average person can retain only about four "chunks" of information.

OMG! WTF? LOL!

More people read USA Today than the New York Times. (Three times more, in fact.) There are even more people who don't read newspapers at all; they get blogs and internet newsfeeds with condensed stories. These people are on your juries. Most are not illiterate or lacking intelligence, and they all have one thing in common with nearly all modern jurors: they would like their jury service to be as short as possible. How can you shorten your trials? Deliver a focused presentation that conforms with the jurors' ability to absorb and understand new information.

Have you listened to a lecture or sermon and muttered to yourself, "Get to the point, already!" The presentation of a case at trial should not be like a mystery novel where disassociated events merge at the conclusion to create a denouement, or moment of truth. Instead, every aspect of the trial from opening statement, through witness examination, and ultimately summation, must hold the jurors' interest, be understood, and accepted. The longer the trial, the more likely that the persuasive effect of your evidence will be diminished. To design a short, but persuasive, trial, three concepts must be understood: cognitive overload, mental fatigue, and Occam's Razor.

Cognitive Overload

There is a Far Side cartoon showing a student raising his hand and saying, "May I be excused? My brain is full."³ Pretty funny, but with more than a kernel of truth. Imagine a pitcher full of water and a drinking glass that holds only eight ounces. You can keep pouring, but the water spills out because the glass can't retain it all. Similarly, if you have a massive amount of factual information that you believe must be presented, your jurors won't be able to absorb it all. Why? Because short-term and working memory can retain only a finite amount of information.

In a memory experiment, the participants were given seven numbers to remember and then sent down a long hallway with instructions to write down what they remembered when they reached the end. Some had to walk past a sign with a message on it. When they reached the end of the hallway, those who saw the sign were less able to write down as many of the numbers as those who didn't see the sign. The reason? The information on the sign overloaded the brain's short-term and working memory.

Cognitive load refers to the amount of information that working memory can hold at one time. Cognitive load theory was first developed by John Sweller, an educational psychologist at the University of New South Wales, Australia.⁴ Sweller believed that if teachers make a subject unnecessarily complex, cognitive load is increased, making it more difficult to pay attention and remember. This theory was further developed by Richard E. Mayer, discussed in chapter 5 ("The Science of Jury Education"). You can help jurors understand complexity—reducing cognitive load by working with your experts to break their opinions into simple steps. This will be discussed in more detail in chapter 9 ("Expert Examination That Persuades").

Mental Fatigue

The brain is like a muscle that can get fatigued. Mental fatigue affects the ability to focus and pay attention. In other words, a tired brain is not as capable of absorbing information. One theory explains that because glucose (sugar) helps nourish the brain, an overworked brain causes glucose depletion.⁵

This might explain why there is candy at the supermarket checkout stand. The process of shopping, comparing brands, and trying to stay within a limited budget causes mental fatigue. The tired brain craves high-calorie nourishment and is less able to resist temptation. And, surprise! There it is at the checkout stand. Although the "glucose depletion self-control" theory is not universally accepted,⁶ mental fatigue is a known phenomenon, whether it is related to glucose or other factors, such as fatigue or hunger.

Federal judge Alex Kozinski wrote a law review article titled "What I Ate For breakfast and Other Mysteries of Judicial Decision Making."⁷ Afterward, a humorous trope emerged: "Justice is what the judge ate for breakfast." However, a serious academic study was undertaken in 2011 to test the theory...