Did gyre and gimble in the wabe:

All mimsy were the borogoves,

And the mome raths outgrade.

–Lewis Carroll, Jabberwocky (1872)

 

This is, probably, what a jury hears when you present a complicated case to them, full of precise legal jargon and elegant legal theories.

I am not a literature student, so Carroll’s poem makes no sense to me. On the other hand, it does make me extremely curious about what he means. My mind begins to try to figure it all out.

Two recent studies demonstrate this phenomenon. College students were asked to study 45 strings of letters from 6 to 9 characters in length each. Then they were divided into two groups:  One who read an absurd short story by Franz Kafka and one who read a rather straightforward short story. The groups were then asked to look at 60 strings of letters, among which were many of the ones they had studied before their reading. The “Kafka group” did better in finding strings—twice as accurate as the control group.

Why? It appears that when the brain is faced with something unintelligible it (anterior cingulate cortex) works harder to find order. It works harder to find patterns. It desperately wants to return to the familiar.

What am I suggesting? Do I think you should tell jurors gibberish so that they pay closer attention to the real details of the case?

NO!

Just the opposite, in fact:

  • Your case story has to be so clear that jurors don’t need to seek order—they can simply adopt the order you present to them.

OR ELSE–

  • In the absence of order, they will create an order that does not exist (like a conspiracy theory) just so that they will be more comfortable. This is very dangerous for trial attorneys. The order they create is seldom, if ever, YOUR order.
  • In a state of unrest, they will revert to their deeply held biases (the familiar). This means that the juror in voir dire who presents a bothersome bias, but later states a contradictory idea that sounds good to you, making you think they might be an appropriate juror after all, will almost surely revert to their original bias during the course of any confusing or complicated set of facts.

Be clear. Be simple. Be organized. Be the anterior cingulate cortex for them.

[PS:  Spell-check gets really frustrated with Lewis Carroll]

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