A 2001 study conducted by Irwin Horowitz and Lyn FosterLee published in the journal of Law and Human Behavior explored the effects of note-taking and the availability of trial transcripts during civil jury deliberations. The study explored the effect of these variables on persuasion, reasoning theories, and jury verdicts. From the review of the literature and the finding from this research study it appears that juror note-taking and the availability of trial transcripts have a mixed bag of results for the trial attorney. The report did produce some statistically significant results describing the type of jury where the highest recoveries were received. It must be noted that there are aspects to this study that are germane to criminal trials and criminal jury deliberations.
A review of the literature exploring the influence of note-taking as a definitive tool for increasing juror comprehension and how that affects jury decisions is mixed. It appears that mock trial research indicated that note-taking increased comprehension while ‘real’ trial research indicated that note-taking decreased comprehension. This may be caused, according to the findings from the literature review, by a juror’s ability to transfer information from short to long term memory; a job relegated to the hippocampus. Jurors with higher levels of reading and listening comprehension have a greater chance that note-taking will increase their knowledge and retention of important trial information. Individuals with less hippocampal power have decreased comprehension. Their ability to retain important trial facts decreases especially as the complexity of the trial increases.
A cure for this issue lies in the complexity of language. Keeping language simple and focused on the core themes and facts are central. Observance of this language rule, especially in the complex trial, reduces the cognitive energy of the brain trying to simultaneously record, understand, process and transfer information. The hippocampus can only hold about 7 to 10 different bits of information for about 30 seconds before it is dumped to make room for new incoming information. Microsoft Word has a grade level reviewer/reading scale that helps to evaluate the simplicity of our language. For instance, this article has a Flesch reading scale of 34 which means the text is easily understood by college graduates, my target audience (a breakdown of the scale is provided at the end of this article). The evaluator can be accessed, in Word 2010 for example, by clicking on file, then options. This will open a new window; click on the word “proofing”. Look for the phrase (about half way down the window) “When correcting language and grammar in word”. At the bottom of that section is a box labeled reading level. Click here to view a visual representation of these instructions. Every jury is different and trials are not won or lost on grade level. We are only suggesting that we remember that language plays a direct role in comprehension
How Note-taking and the Availability of Trial Transcripts Affected Juries.
According to the current literature on this topic, the use of note-taking and the availability to trial transcripts during deliberations has a direct effect on the type of processing juries use to evaluate evidence, determine responsibility, and subsequent awards. Horowitz and FosterLee (2001) described two major forms of processing, the heuristic model of reasoning and the systemic model of reasoning. The following is a description of these two forms:
· Heuristic reasoning, also described as short cut thinking, is considered a more efficient form of reasoning because it happens on a more automatic level. When jurors make decisions from heuristic reasoning they rely upon pre-existing mental models used to understand and navigate life. This type of thinking, though, indicates a lack investment or emotional involvement towards the information being considered. Heuristic thinkers are hard to persuade. The lack of involvement and caring about the issue halts a need for any deeper exploration. When a person relies upon the idea that “a majority is always correct” they are employing heuristic reasoning.
· Systemic reasoning, by its nature, denotes investment and caring for the issue. These attitudes motivate jurors to evaluate the facts and use concrete information to support their view. Systemic processing is a deeper and more thorough evaluation of the information and this system requires utilizing all of the available information to make a decision. Systemic reasoning reduces snap judgments and unfounded counterfactual thinking. Systemic thinkers are more susceptible to persuasion.
When trial transcripts and note-taking are included in jury deliberations heuristic reasoning is decreased. In other words, adding trial transcripts, according to the research, appears to empower juror advocates. The review of the literature indicated that jurors used the notes and transcripts to provide excerpts and examples to combat dispassionate or counterfactual thinking jurors. Trial transcripts and notes helped to redirect jury deliberation and offered multiple chances for the dispassionate juror to connect to a client. It is safe to assume, then, that this would lead to increased jury awards. The research, though, indicated the opposite.