During the course of a long and complex trial, a presenting attorney may not know what the jury is thinking, but if the attorney knows how jurors think, the introduction of a well-conceived Analogy, Metaphor or Familiar-Contextual Comparative demonstrative could well make the difference between shaping and guiding the perceptions of a jury … or leaving them to their own cognitive devices.
Cognitive Psychologists tell us that there are two fundamental types of decision makers – the “affective thinker” and the “cognitive thinker”.
Affective Jurors can frustrate attorneys. They tend to rely more on familiar experience, emotion and intuition, or simple, own-life ingrained associations to inform their decision-making. Though at outset of trial they are equally motivated to “weigh the facts”, they will more readily abandon logic in favor of Heuristics – looking for personal cues, outside the evidence, in search of mental shortcuts to arrive at decisions.
Cognitive Jurors tend to think more systematically for longer periods of time. They tend to wait until both arguments are heard and weighed before making judgments. But they too can resort to Heuristics, especially where motivation wanes from a lack of stimulating story & theme, or where prolonged tedium & dry complexity wears down interest.
“All Perception of Truth Is the Detection of an Analogy”
– Henry David Thoreau
To best address both types of thinkers, the Strategic Rule of Thumb is to design a presentation with preferential focus on the thinking behavior of the affective juror, while counting on the cognitive juror’s better and more prolonged attention to detail as the case progresses. The advantage is that both will respond to, retain and make use of a well-crafted analogy, metaphor or comparative graphic. Yet the analogy helps translate your themes of the case, for the affective juror in particular, into a familiar context that that juror can readily associate to personal experience, and persuade that juror’s understanding of the case.
Analogy – Two Case Studies:
In one IP matter where I supported the plaintiffs, analogy played an important role in the Narrow-Broad Interpretation battle to define what encompasses a “Coaxial Cable”.
Common personal experience reinforced a narrow interpretation – what one buys when one asks for a “coaxial cable” at a Best Buy – a cable with a single, centered conductor. Defendants played upon this familiar experience to argue compellingly for a narrow interpretation of the alleged infringed invention.
We, the plaintiffs, came up with a commonly understood analogy to reclaim the “personal-contextual” playing field. The analogy comparatively illustrated the true, broader family of coaxial cables, as one “skilled in the art” would understand, as akin to the true, broader family of “cats” … consequently reframing the defendants’ narrow argument as equivalent to falsely trying to argue that only the common House Cat, from among all cats (Lions, Tigers, Cheetahs, etc), is a “cat”
“One Good Analogy Is Worth Three Hours Discussion”
– Dudley Field Malone, Defense Attorney
State vs. John Scopes (“the Monkey Trial”)
While supporting the defense on another patent matter, I devised a”Market Share” demonstrative useful for both
our expert’s testimony on potential damages and for Closing Statements. This graphic reduced expert market share tables and charts to an everyday, juror-familiar context – pocket money – to clearly illustrate how Plaintiff’s market share was comparatively almost non-existent. By using the $10 bill as the denominator against which to compare the Plaintiff’s market share, the scale of comparison what brought down to familiar everyday experience. And the objects of comparison – the $10 bill and 1/2 cent – would be easily retained to memory for deliberation.
Whether with simple or complex matters, jurors’ sustained attention to the logical weighing of the facts inevitably begins to hit rough cognitive waters. A well-conceived, compelling analogy can tap into a familiar context for the jurors to help shape or redirect the understanding of those potentially complex and arcane case facts for the jurors – a strategic “rose by any other name” – to help spell success for the trial attorney.