Gamification as a Jury Trial Strategy
What was once considered child’s play is that no longer. Gaming has become ubiquitous, with estimated worldwide revenues in 2023 around $350B. A 2022 study found the average age of a video game player was 35 years. Another study found only 21% of American gamers are under the age of 18. It used to be considered a predominantly male activity but recent studies suggest 48% of gamers in the United States are female. This all hit home when we recently concluded a mock trial with a question to the lead attorney, a seasoned and successful trial attorney in his late fifties, what he had planned for the night. We expected to hear him say he might enjoy a glass of fine whiskey or wine, read James Joyce, or have sophisticated conversations with his social circle, but instead his answer surprised us. He said he was going to play some Call of Duty. Of course, there is nothing wrong with that, but it was the last thing we expected to hear. We all have ideas of what a “gamer” is, usually consisting of someone living in their mom’s basement, but it turns out that stereotype (like many) is far from the truth.
The smartphone brought about some of this acceleration. One study found that 70% of US adult gamers played games on their smartphone in 2022. Gaming is a significant part of our culture. In fact, this cultural phenomenon has caused many businesses to take interest in the psychology of gaming, leading to a proliferation of literature on “gamification,” or the application of gaming design principles in non-gaming contexts. Businesses have long used gaming principles to motivate employees and customers. In recent years, “gamification” has expanded to healthcare, education, and even transportation. What next?
Notably, in his new book Misbelief: What Makes Rational People Believe Irrational Things, Professor of Psychology and Behavioral Economics Dan Ariely highlights the significant role “gamification” can play in the development of beliefs and decision-making, highlighting what game designer Reed Berkowitz has called “the gamification of propaganda.” Ariely notes, “This is one of its more seductive and overlooked qualities: misbelief is enormously engaging and even fun for those who become deeply involved in its cleverly constructed alternate worlds.” He continues, “People don’t just absorb the information, they add to it and generate their own content. They feel important, because they can play a role, through their own dedication and intelligence, in outsmarting the evil elites who are controlling the world.”
In this column, we discuss the application of “gamification” to jury trials. Borrowing from prior studies, we define gamification as the application of lessons from gaming domain to change behaviors in non-gaming situations. Researchers say gamification works because it taps into the two motivational drivers of human behavior: reinforcement and emotion. Positive and negative reinforcement and the emotions that come with each can encourage the repetition of behavior.
How could gamification principles apply to trial strategy? Here are five gaming principles and some creative ways attorneys might deploy them.
1. Scoreboards. Scoreboards are an essential component of any gaming experience as the foundation for the competition. The scoreboard determines who wins and who loses, and players closely watch the score as the game unfolds. At trial, there is no scoreboard, which indicates a larger problem jurors have in understanding how to “score” the competition playing out before them. Almost every mock trial we have ever conducted has included that moment of frustration for attorneys as they watch mock jurors reach a verdict without discussing what the attorneys believed was an important issue in the case. Applying gamification principles, attorneys could suggest to jurors in opening statement that they create a scoreboard of the evidence. If it’s a negligence case, the attorney can tell them to imagine a scoreboard by creating two columns, one for all the arguments they hear for negligence throughout trial and the other for all the arguments they hear against negligence over the course of trial. Plus, if the scoreboard is kept in a clear place (like in the back of their notebooks in King County courts), it will be more noticeable to everyone when a juror flips to the back of their notebook, giving attorneys insights into what jurors think is (not) important. We’ve also seen effective but less direct instructions for “scorekeeping” such as asking jurors to think of the evidence in two buckets, truths and untruths, and place the arguments in each bucket as trial progresses. This approach allows you to decide what matters (e.g., truth or untruth, facts or emotion, hopes or reality, etc.) and empowers jurors to keep score in a way that benefits your specific case.
2. Badges. Badges are a key component of any gaming experience. They visually reinforce progress and achievements among other things, which research shows is critical to the psychology of gaming. Attorneys can create badges at trial. Recognizing that badges are visual reinforcement, they could create “badges” in their PowerPoint presentations for each legal element (i.e., negligence, proximate cause, etc.) and visually fill those badges over the course of trial as witnesses testify and the evidence comes in. It is not uncommon for attorneys to use visual aids such as PowerPoint slides during testimony, so it is just a matter of taking it a step further. Of course, to avoid objection, this would have to be carefully choreographed by the attorney ahead of time. Perhaps the slides could be used as a visual roadmap for the testimony incorporating the badges. The first slide has a “negligence” title and summarizes the key evidence on negligence as it comes in from that witness. Next to the summary is the badge that fills up over the course of trial as it is filled in with the evidence. For example, maybe the proximate cause badge is an outline of a blue triangle that slowly fills in with blue (much like a gas gauge in a car) as the testimony comes in. In other words, present the badge initially with tick marked “levels” from bottom to top that correspond with witnesses (attorneys could even use witness names if predictable enough), and then as that witness completes testimony there would be a logical reason to fill the badge another level. By the end of trial, the badge would be full.
3. The board. Every good game has a board, whether it is a physical board like in Monopoly or Life, or the on-screen board, which is often a map of the playing field. The board is an important gaming principle because it sets the scene for the action and tracks performance and accomplishments. Attorneys could run with this concept and create a visual boardgame for trial. This would include creating a visual map of trial (in a boardgame-like fashion) built around the logical structure of the key arguments and elements. This board would be introduced in the opening statement and used throughout trial as key testimony or evidence comes in. Notably, while these boards could be created for PowerPoint, alternative presentation software such as Prezi might provide some more visually interesting and engaging opportunities to create these boards.
4. Game jargon. Another key component of the modern-day gaming experience is the community it creates. Games provide players with language and code they share with each other, creating a sense of being an “insider.” Attorneys could create their own game jargon for trial by developing “code words” or phrases to reference key issues in the case. Maybe it is just a catchy/memorable word or phrase for an argument element and the attorney has a few of these code words they introduce in the opening statement and then use as signposting when asking questions to witnesses. Those code words or phrases could correspond to key aspects of the game/story and represent progress or development in the overall story (e.g., “The Meeting,” “Trouble!” “The Fix,” and “The Home Stretch,” etc.). Aside from giving jurors an “insider” feel, these code words or phrases could also make certain issues more memorable and salient, which is critical. Studies suggest jurors may remember as little as 10% of what they have heard over the course of trial by the time they reach the deliberation room, so anything that increases that percentage or makes it more likely that jurors will remember the 10% that favors one side over the other is incredibly valuable.
5. The opponent. What is a game without an opponent (even if that component is the computer itself) and what is a story without a villain? These two go hand-in-hand and can be incorporated into the trial strategy. Most trial strategies already have a villain (whether intentional or not), which could include people or various forces working against the main character, so this is just a matter of making it more pronounced in the presentation itself. Plaintiffs often focus on the corporate villain, while defendants focus on unreasonable, exaggerating, or even lying plaintiffs. Villains are important from a psychological perspective because they help people regain a sense of control over situations. This is one reason the reptile theory can be successful: it helps jurors deal with a traumatic story of a horrible injury or death by creating a villain that is a threat to the community. Notably, other research (often focused on what is called the “just world theory”) suggests that one of the common ways people make sense of tragic situations is blaming the victim because doing so allows them to conclude that the same tragedy would never happen to them since they would never make the kinds of decisions the victim made that led to the tragedy.
Thomas M. O’Toole, Ph.D. is President of Sound Jury Consulting in Seattle, WA. Kevin R. Boully, Ph.D. is Senior Consultant at Perkins Coie in Denver, CO.
