Attorneys and trial consultants who work in criminal cases have noticed this for a long time, and it has been documented that prosecutors are offering scientific evidence that they wouldn’t have awhile back — either because it is on a point that isn’t really that important or because managing the resources and priorities of a crime lab would have led to not producing it. They must do it now, lest a jury wonder where the CSI stuff was, and assume that an absence of proof is a proof of absence. And really, in my opinion, that is the linchpin of the danger of the CSI effect; a lack of evidence which is expected by an amateur leads to the assumption that “if that evidence existed anywhere in the universe, the prosecutor would have offered it, which he or she did not, so therefore it doesn’t exist and the claimed event never happened.”

But the “CSI Effect” occurs in civil cases, too, and thus more trial lawyers should be aware of it when working on a case that involves anything technical or technological in the story at all. Here is an example:
In a federal suit in the western U.S., plaintiff alleges sexual discrimination and violations of the Equal Pay Act. Part of the dispute is over who saw which emails and when, and the ability of either side to offer any hard evidence about this is pretty meager. In short, this is a standard, run of the mill civil lawsuit. While the fight is over how much the plaintiff had been paid during certain years, whether others had been paid more for improper reasons, whether her pay had been affected by her complaints about certain things, it had escaped the notice of counsel on both sides that they were handling a technical lawsuit.

Why is a standard issue pay dispute a technical lawsuit? We conducted a focus group of this case to discern how civilians would react to the major issues of the case, how they respond to graphics that one party had created, how they would go about deciding what happened, liability leaning, damages inklings, and so forth. Out of nowhere, one participant said: “What do they mean they can’t tell who got which emails and who didn’t? The FBI can find hard drives from computers that have been blown up or burned, and they can put them under microscopes to see if the individual bit is a one or a zero, and can visually reconstruct the contents of the hard drive. That’s how they’ve caught a bunch of terrorists. So why aren’t we seeing that evidence? Because they don’t want us to see it. Or they aren’t sure of their case.” Or maybe, just maybe, forensic computer coroners don’t see civil lawsuits alleging unequal pay on quite the same level of priority as stopping terrorists. Hence this overestimation of both the availability of crime lab resources and the overestimation of attorney prioritization of scientific evidence on points that aren’t terribly important.

So we learned something very important that day: Anticipate that even in cases that don’t seem to be technical in nature, if there is any transaction that happened by technical means, jurors will have some grandiose ideas about the availability of evidence on that topic… and then mistake an absence of proof as a proof of absence.

I later learned about another case which alleges sexual harrassment in the workplace, some of which allegedly occurred via company email. The plaintiff claims that she deleted it all, and naturally, mock jurors assumed that the internet service provider could simply be subpoenaed and, presto, all the emails could be recovered. Right. And if that fails, the FBI’s al-Qaeda team can get right on her hard drive.

My point isn’t to pick on jurors. That’s never my point and I don’t permit it in my presence! Nope. It’s the attorneys responsibility to tell their story in a way that laypeople will access and process correctly. Now we know that even in civil cases, attorneys must fashion their stories by taking into account the “CSI Effect.”

Antidote: in your story, tell the jurors that they won’t be seeing the evidence that you think ‘CSI’ would lead them to expect. Let them know in voir dire, in opening, during the presentation of your evidence through witnesses, and again in closing.

Sorry, but they don’t. I have counseled Fortune 100 companies in their sales negotiations, and salespeople often think that if they just told the prospective customer more features and functions (i.e., facts), then the prospect would have an epiphany and see things Our Way, and be persuaded to buy.

It doesn’t work. It doesn’t work in trying cases to juries, either. (For that matter, facts don’t persuade your opponent to settle closer to your figure, but we’ll come to that.) Why?

In negotiation, people make decisions on whether to agree to a deal with the other side for one reason exactly: perceived value. Yes, I perceive this as a valuable outcome, so I will agree; or, No, I don’t see this as valuable, so I will not agree. “Value” is an amalgam of subjective factors, mainly a feeling of satisfaction of needs that the deal will provide, which needs would go unsatisfied in the absence of said deal. (Sometime when we are having drinks, I’ll give you my spiel that There Is No Such Thing As Objective Value, that All Value Is Subjective. But please take that as read for the moment.)

As is widely discussed in political circles, George Lakoff, the Berkeley linguist, published Don’t Think of An Elephant: Know Your Values and Frame the Debate in 2004, calling it, “The Essential Guide for Progressives.” Lakoff makes some important points about the hard-wired psychological structures we all have and with which we adopt/reject ideas. And what he says has great import for both sides in a jury trial.

First, the definitions. Frames are part of our “cognitive unconscious,” as Lakoff explains; they are “mental structures that shape how we see the world.” He points out that “All words are defined relative to conceptual frames. When you hear a word, its frame (or collection of frames) is activated in your brain.” Examples:

* The phrase “tax relief,” used routinely by Republicans, implies that taxes are an affliction. “Tax reduction” is objectively the same thing, but it does not tap into the frame of affliction, and specifically the frame that afflictions should be relieved. A different frame might position taxes as “investments in future economic strength” or “the fees for living in a high standard of living with great infrastructure.” But to tap into the frame of afflictions (which, of course, cry out for relief) accomplishes what proponents of “tax relief” want: lower taxes, for a host of reasons having little to do with “relief.” So the casual use of the phrase “tax relief” accomplishes in two words what endless recitation of supposed facts could not: getting people to start feeling favorably about what you want. You are tapping into their worldview that afflictions should be relieved.

* In the 2004 State of the Union address, as Lakoff points out, President Bush said, “We do not need a permission slip to defend America.” (Italics added.) The phrase “permission slip” immediately taps into an adult-child mindset, and of course we don’t fancy ourselves the child in that frame, so that must mean we are the adult. Of course, nobody was suggesting that the United States of America needs anyone’s permission before acting in what it perceives to be its self-interest. But invoking this adult-child frame gets people unconsciously chafing at functioning with the United Nations to investigate threats and contain them if found.

“Framing is about getting language that fits your worldview [or "caseview," for our purposes]. … People think in frames. … To be accepted, the truth must fit people’s frames. If the facts do not fit a frame, the frame stays and the facts bounce off. Why?

“Neuroscience tells us that each of the concepts we have – the long-term concepts that structure how we think – is instantiated in the synapses of our brains. Concepts are not things that can be changed by someone telling us a fact.” (Pp. 3, 17, emphasis added.)

Then Lakoff says something that is also relevant to our purposes: “We may be presented with facts, but for us to make sense of them, they have to fit what is already in the synapses of the brain. Otherwise, facts go in and they go right back out. They are not heard, or they are not accepted as facts, or they mystify us…” (P. 17.)

We have all had this experience in court. For that matter, we more frequently have had this experience at the negotiation table with opposing counsel and even occasionally with our own clients. We tell the jury/opposing lawyer/client all the relevant case facts, and arrange these facts so logically that Aristotle would say “boy howdy.” (Bad example; he probably said that often.) Doesn’t persuade. It’s what I call the I’m Obviously Right So Why Aren’t I Getting What I Want paradox. Damn that paradox.

So we have to be more conscious of framing our cases in ways that tap into pre-existing mental structures. The adult-child frame is one such frame; it speaks of who gets to make decisions, freedom, responsibility, power, beholdenness, protection. Think of a case you have (or have had) in which you might want to use any of these constructs. A franchisee-franchisor dispute? A contract dispute? Commerical case?

“Friends” is a frame. It speaks of expectations of loyalty, maybe genuine concern, duty, expectations of understanding.

Likewise the frame of “The Handshake,” which invokes the personal obligation, the sacred commitment to the contract, the putting of ones honor at stake. You know, all that “my word is my bond” stuff.

But as Lakoff points out, ideas come first. THEN language. And if the language isn’t coming to you, that’s a signal that the idea hasn’t really formed yet. So it’s not about coming up with the one magic theme; it’s about conceiving of our cases in ways that tap into folks’ unconscious mental structures, then finding the language to convey that.

I’m for anything that gets us away from the old model of providing volumes of facts to jurors, as if pouring our facts into juror heads would – presto! – make them see the world just as we do. The first wave of getting away from that was the school of themes, which said that you must compose a short phrase that summarizes your facts (e.g., “This is the story of a dream that became a nightmare.”) This was an improvement, as far as it went. But developing and using themes hasn’t been taught very well, and the result is themes that are mediocre (e.g., “This is the story of a dream that became a nightmare”), often focus on the wrong thing (namely, the conduct of one’s own client rather than the other side, such as the dream-turned-nightmare thing), and that only one theme is enough. (A future post will deal with themes. They ARE important.)

But it could be that the next wave for lawyers is figuring out framing and metaphor and really touching these built-in mental structures jurors all have. And not just appealing to those underlying schema to be manipulative, but recognizing that we MUST present our cases in recognition of these structures, or else not be as successful as we could be if our concept of the case were different. As I point out a lot, one of the few biggest jury verdicts in history was Exxon v. Texaco, which took a year and several hundred witnesses to put on. The entire case came down to this sentence put forth by the plaintiff: “What does a handshake mean anymore?” That’s more than a theme; that’s a frame because it touches a whole pre-existing set of beliefs about right conduct. We have to get there in our own practices.

For more articles and applications of framing on public issues, see Lakoff’s website, http://www.rockridgeinstitute.org. I recommend it to all lawyers who practice in front of juries to develop these crucial framing skills. I recommend Don’t Think of An Elephant only to people who are interested in politics, as that is the book’s only focus. However, I have recently purchased Lakoff’s Metaphors We Live By, as metaphors are directly relevant to powerful and effective case presentation; I’ll discuss it in future posts. ]]> http://juryology.com/2006/05/13/framing-use-built-in-value-systems-dont-fight-the-forsaken-factual-fight/feed/ 0