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Lessons for Trial Lawyers from Nudge, a book on Persuasion

Nudge is a New York Times bestselling book written by Nobel Prize winner Richard H. Thaler and Harvard Law School professor Cass R. Sunstein. The book draws and a wealth of research from behavioral science that shows why people make bad choices and how they can make better ones. The authors believe that choices are never presented in a neutral way and that bias, whether intended or not, can lead people to make bad decisions. By recognizing that such a bias is present, we can make better decision. For trial lawyers, the revelations in this book can have a profound impact at trials and depositions. When we present information to judges and juries, we are choice architects and can nudge jurors toward a particular decision if we present the choice in the right way.
Below is a summary of the insights from Nudge that can be used by criminal and civil trial lawyers.
In one of the first studies analyzed in the book, the authors relate that schools were able to increase the consumption of healthy items or decrease the consumption of unhealthy food items by as much as 25 percent simply by arranging them at eye level or the changing the position in the order in the line or putting them in a separate line. “There is no such thing as a neutral design.” We are all choice architects. “A choice architect has the responsibility for organizing the context in which people make decisions” (p.3.) “A good rule of thumb is to assume that everything matters.”
“A nudge as we will use the term, is any aspect of the choice architecture that alters people’s behavior in a predictable way without forbidding any options or significantly changing their economic incentives. To count as a mere nudge, the intervention must be easy and cheap to avoid. Nudges are not mandates. Putting the fruit at eye level counts as a nudge. Banning junk food does not” (p.6.)
The authors ask us to assume there are two imaginary species. Econs are what economic textbooks assume man is: someone who unfailingly chooses well. The second is the real human with all his flaws: Humans.
Unlike Econs, Humans predictably err. “Take for example the ‘planning fallacy’–the systematic tendency toward unrealistic optimism about the time it takes to complete projects. It will come as no surprise to anyone who has ever hired a contractor to learn that everything takes longer than you think, even if you know about the planning fallacy” (p.7.)
Top Ten Trial Lawyer Takeaways
1. One rule of thumb is that everything matters in how you present information to a decision-maker. Nothing is neutral! Just like the study mentioned above about how the placement of healthy food in a line cafeteria line affects its popularity, give a lot of thought to your order of witnesses, the number and priority of exhibits, and what you will emphasize in your opening statement.
2. Be aware of the planning fallacy: the systematic tendency toward unrealistic optimism about the time it takes to complete projects. Allow extra time for everything in your deposition and trial preparations.
3. The importance of visual aids at trial is shown by the Shepard’s table illusion. Watch the short video to see how important visual aids can be. The charts, diagrams and timelines you use have dramatic consequences on outcomes. Give a lot of thought to how your visual aids look and their persuasive value.
4. Anchoring is a rule of thumb that civil lawyers need to be aware of in settlement negotiations and prosecutors and criminal defense attorneys need to be aware of at sentencing hearings. The authors relate this study to show anchoring bias. Take the last three digits of your phone number and add 200. Now, guess when Attila the Hun invaded Europe. One hint: it was after Jesus was born. The authors found that people with high numbers unconsciously guessed 300 years later than those with low numbers. This is called anchoring and adjustment. People were doing this even though rationally, we know that our phone numbers have nothing to do with European history.
5. In settlement negotiations, an unrealistic high demand can serve as an anchor that helps the plaintiff’s attorney by infecting reasonable negotiations. But if you are a defense attorney, instead of responding to an unrealistic demand, tell the plaintiff’s attorney that you are not responding until he withdraws the unrealistic demand and starts with a reasonable one. That way, your anchor for negotiations will be normal.
The same anchoring bias plays out at sentencings for criminal defendants. If you are in federal court, the U.S. Sentencing Guidelines play a huge anchoring role that there is very little you can do about. The punishment the Guidelines recommend is something that you cannot prevent as a starting point for discussions. The important point is to realize how this anchors a judge to a certain outcome. Once you recognize this anchor and depending on your goal, find your best argument to highlight for the judge why this anchor is right or wrong.
In state courts where the judge happens to be the decision-maker, use the same strategies discussed above for civil attorneys. Start with a very high or low number to anchor the discussions.
BEWARE: One thing that Nudge does not take into account is that you need to maintain credibility with the judge. So, when making a high or low suggestion to start the discussion, keep in mind that your recommendation cannot look so outlandish that the judge deems you untrustworthy and then tunes you out for the rest of the hearing
6. We are all too overconfident. If you disagree, you confirm this proposition that studies have proven. The optimism and overconfidence problem is a significant one for trial lawyers to overcome. Here is an easy way to do it. For every hour spent putting your case together, you need to spend 20 minutes tearing it apart.
7.  Avoid the status quo bias. Humans are passive. Our brains prefer inertia to change. The authors point out the examples where students tend to sit in the same seat even without a seating chart. Another example is that the default options set by employers and products are always more popular because they take no effort to choose. Don’t be trapped by this situation. Do something different from the way you have always done it.
8. Framing is similar to anchoring. Be aware that jurors are passive decision makers. How you frame your questions and themes is important. The authors point to many studies that show how framing a question can influence outcomes. “Research shows that subtle influences can increase the ease with which certain information comes to mind” (p. 70.) For example, if people are asked the day before an election if they intend to vote, there is a 25% increase in voting.” Consequently, make the information easy for the jurors to understand by the themes you use. Put positive information first so that jurors will put emphasis on it and discount the negative information that you present later.
9. Recognize what your temptations are when you are in a hot state. A hot state is an emotional state which we often find ourselves in without realizing it. When you travel for depositions or trial, do you eat bigger meals and forget to exercise? When you are in a cold state before your trip, look for a hotel that has a good gym and plan a daily workout into your schedule. It is just as important as setting time aside for witness preparation etc.
As for mindless choosing, think about decisions you make without any thought. Are you using the same court reporter for depositions because it is easy to do so despite a slow turnaround for transcripts or inaccurate transcriptions? Does your website need updating to increase the likelihood of getting clients but you haven’t taken the time to do it because you are too busy? Become a Planner and think creatively how to do things differently.
10. Do jurors follow the herd? Yes. The authors point to several studies that show we are influenced by those around us. Three of those studies found: 1) teenage girls who are around other teenagers who are pregnant are more likely to get pregnant; 2) Obesity is contagious. If your close friends gain weight, you are more likely to gain weight; and 3) The academic success of college students are affected by those close to them at college–particularly roommates.
The social nudges of information and peer pressure influence verdicts. Try to determine who the leaders are on your jury. They are usually the ones that are paying the most attention and sometimes the ones who are taking the most notes. If their occupation is one of leadership, that is certainly a clue. The point is that you need to keep in mind the importance of convincing the leaders on your jury in order to help persuade all the jurors.
If you want to learn more about how Nudge can help trial lawyers, join my discussion of this book at my book club for trial lawyers which can be found at goodreads.com.