The Use of Learning Theory in Litigation
“If one of our goals in jury trials is to send into a jury room a jury well equipped to render a fair and impartial verdict, then in my view, we are shortchanging all litigants if we are not providing our jurors with all the necessary aids and tools to enable them to perform the critical tasks we ask them to undertake.”
— Hon. Michael F. McKeon, Jury Trial Project in New York
The key to being successful in litigation is clear, concise, effective and persuasive communication. In effect, a lawyer is an educator – disseminating facts and evidence about a case to fact-finders. How those facts and evidence are presented to a jury, judge or panel can mean the difference between comprehension of said information and confusion, boredom and apathy. Properly educating the fact-finder on complex information without overwhelming them while effectively rebutting adverse counsel’s points are the litigators’ main objectives. During demonstrative development and argument preparation, it is important to understand how to distill and accurately represent case facts in a persuasive manner for maximum comprehension.
Bold research in the fields of neuroscience and brain imaging at the University of Birmingham, UK, has provided interesting new data that is applicable to the field of learning. Dr. Doe Kourtzi, Chair of Brain Imaging at UAB, explains, “What we have found is that learning from past experience actually rewires our brains so that we can categorize the things we are looking at, and respond appropriately to them in any context.” People learn, process, retain and recall information differently. The majority of learning theory experts agree that whether you are teaching a class of high school students or arguing your case in front of a jury, utilizing more than one teaching method increases the fact-finders’ level of comprehension.
US educationist Edgar Dale pioneered the “Cone of Experience” theory, holding that using various types of learning strategies increases comprehension and retention. Dale’s hypothesis incorporates different types of teaching methods, including utilizing symbolism, audio, imagery, video and direct participation. For litigators, Dale’s theory has practical applications in the courtroom. Over the past two decades, the method by which evidence is presented has changed. Law firms have taken a measured approach to embracing the use of technology in every stage of the litigation life cycle. Litigation graphics are now commonplace in courtrooms and are being included as early as the motions and pleadings phases, as opposed to limited graphics like the obligatory graph or chart during trial. This technology facilitates the litigator’s ability to persuasively present their evidence verbally while reinforcing their message with supplemental visual and auditory evidence.
Until deliberation, juries have a passive role in court proceedings, impartially considering the evidence presented and rendering a verdict based upon that evidence and the rule of law. Within the past few decades, courts have experimented with various changes to procedure; this has led to controversy because some procedures encourage jurors to take a more active role during the evidentiary presentation of trial or have the potential to distract jurors from listening to the evidence being presented. Two controversial procedures, allowing jurors to take notes and juror questions, are being tested at a measured pace in various jurisdictions across the country.
For many, taking notes assists in processing and retaining the information being presented and then facilitates the recall of that information. Allowing juries to take notes during the course of a trial has only developed over the past few decades. As this experimental procedure is implemented across the country, extensive studies continue to be conducted and relevant data collected. One study found that of jurors who were not permitted to take notes, 76% of jurors on civil trials and 50% of jurors on criminal cases communicated that they would prefer the opportunity to take notes in future trials.
|Another procedure being experimented with in courts is juror questions. According to the findings of the Arizona Filming Project, over 28% of juror questions gravitated towards clarifying factual information and over 61% of juror questions were evaluating questions focused on discrepancies in testimony or disputed facts being presented.|
How people best understand, internalize, and then retain information for later recollection varies. By utilizing multiple teaching methods in the courtroom, explaining evidence, assisting in processing information and facilitating memory retention and recall, courts assure that jurors are better prepared to carry out the duties with which they are charged.
This article is based on the KT Designs’ white paper “The Applicability of Learning Theory in Litigation.” To access the whitepaper in its entirety for free, please visit the whitepaper section of our website: http://www.kt-designs.org/white-papers/
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