A fruit fly passes through an open window into your kitchen and immediately swerves up, left, down, back up again, then veers toward another open window, disappearing into the Washington air. Another drunken fly with no depth perception and poor navigation, right? You see the seemingly aimless behavior and assume, based on the rules for how we judge our own human behavior, the fly must be rudderless, lost, sick, dying. Why else would anyone make such a maze of ups and downs, left turns and rights, just to fly in one window and out another? It could have flown a straight line. When we evaluate the behavior of the fruit fly with our own behavior as the measuring stick, could we be missing the real, predictable understanding for the fly’s behavior?
Last week a team of litigators and their clients watched focus groups in disbelief as mock jurors cast doubts on their collective faith in human beings. Dealing with complex evidence about an alleged theft of online technology inventions and a lot of information to process, many mock jurors defaulted to a simplistic shortcut to understanding what really happened. But what about the thorough set of reasons to believe a sophisticated technology company invented its own technology? Nope. Not really. Instead, it turns out this large tech company probably behaved just like most technology companies behave, choosing profits over people and stealing a subcontractor’s innovative idea, rebranding it as its own. Was it surprising to us? No. Not at all. Why is this so surprising to some? Much like the fruit fly, we too often judge the jury unfairly because we use ourselves as the measuring stick. When we do that, could we be missing a real, predictable explanation for the jury’s behavior?
To connect these dots, we turn to An Immense World, a recent book by Pulitzer Prize-winning Ed Yong, to demonstrate and appreciate the way a jury sees the world with its own set of special senses and abilities. Mr. Yong explains the fascinating science that illuminates how animals sense the world and what it reveals to us as human beings. The guiding concept is born from famous zoologist Jakob von Uexkull’s term, umwelt, defining how each animal experiences reality through its own perceptual or “sensory bubble” in a unique and customized way that differs from all others.
How different is each animal’s umwelt? The differences are overwhelming and surprising. Humans are vision-
centric. We rely heavily on our complex tools of vision and that complexity brings amazing benefits and a significant cost. We look at other creatures’ behaviors and see with our eyes how they compare to ours, even when doing so creates massive blind spots in our perceptions of another animal’s experiences. We know that dogs “see” with their noses, giving them an entirely different window to the world than we experience as humans. Did you know robins “see” electromagnetic fields that orient them in flight? Did you know that compared to humans, some animals perceive thousands if not millions more variations of color? Rattlesnakes born without eyes can strike their prey as accurately as snakes with perfect vision because pit vipers use extraordinarily refined heat sensors to “see” their prey by processing heat sensations.
And how about our fruit fly? The fly uses tiny sensors on its antennae to accurately measure temperature differences as small as one-tenth of a degree from one antennae to the next, swerving quickly in the direction of its ideal temperature. So, when we see an aimless fruit fly, or any animal, doing something we perceive as odd, we might be wise to consider how our own way of looking at things limits our understanding of theirs. We often hear attorneys evaluate a witness or an argument based on “what I would think,” thrusting their own judgments, using their own experiences to the forefront of the analysis. But what if juries have their own sensory bubble with an entirely unique set of perceiving devices? For the last seven years we have developed jury economics as our model of the jury’s umwelt, the unique and specific way that a jury perceives the world and makes decisions within it.
Economical. Years into developing our model, we continue to see the jury’s goal of economic and efficient processing as a key driver of how juries function. Animals evolve various unique and adaptive systems (a bee’s complex eye, an ant’s insanely communicative pheromones) because those systems serve clear goals and are sustainable with the animal’s resources. For the jury, as for the individuals who comprise it, economy is king. Our brains demand so much fuel to operate we are built to conserve wherever possible. We look for shortcuts, patterns, stories, and simplicity as an evolutionary strategy. We see it every time we conduct focus groups or mock trials, and every time we interview jurors after trials. Juries value shortcuts and you should never be surprised when they do. Expect them to simplify and you can help them by giving them the pieces that best put together tell the simple story you want to tell.
Egocentric. One of the quickest ways to make sense of anything new is to relate it to something we already know or do. We look to our experiences and our preferences as the simplest guide to classifying or assimilating something outside our experience. As Mr. Yong writes, “After being briefly taught to detect TNT, which is supposedly odorless to humans, three African elephants could identify the substance more skillfully than highly trained detection dogs.” Elephants use what they know, and what they’re good at. So do juries. Juries use their human experiences and stories and they change just as often as the threads that dominate American culture. Today, we see notions of social justice, equality, anti-corporate bias, and a conservative “stay off my lawn” narratives continuing to run as common threads for juries and how they make their decisions.
Symbolic. Juries rely heavily on symbols and assigned meaning and motivation to evaluate evidence and make decisions. These decisions are often instinctive reactions to witnesses or attorneys, judging credibility and gauging the value of testimony in little more than a moment. They piece together events to create a story that makes sense in their minds. These are human instincts but are required for a jury to process and render decisions as a group. Mr. Yong explains how bees rely on taste receptors on their legs to subconsciously fly away from offensive odors and toward pleasing ones, and how, “A dolphin can almost certainly tell different [fish] species apart based on the shape of [their] air bladders.” These instinctive, symbolic shortcuts are inherent to a jury and its job in the courtroom.
Social. No jury’s job is finished until they deliberate and reach a decision together, as a group. This means the key arguments for why one side wins need to pass the socialization test — can jurors comfortably and persuasively argue and convince other jurors of their view? An Immense World tells us ants are among the most socially organized creatures on earth, relying on subtle signals passed through undetectable pheromones to perform complex functions with astounding organization. They get this work done because it is inherent to their function. In the last month, we have watched multiple mock jury groups struggle to persuade other jurors using evidence or arguments that threatened the socialization test. The arguments were perceived as sexist, unfair, or at odds with the group’s larger goal of returning a verdict with a certain outcome. Expect that juries who love your case will still need a prosocial way to argue it or risk being at odds with the group.
“To understand an animal’s umwelt, you have to watch their behavior.”
Juries do not function like you and me. They do not use our same measuring sticks for behavior because they, as a collective comprised of unique individuals, see things with certain superpowers and make decisions with a certain ethos. Juries have a consciousness and a sense of the world that is built from the individual experiences that function within them. They have a pattern of predictable behaviors that when studied and observed, results in a greater (not lesser) appreciation of the way they function and the way we can better understand them. The next time you think you know what a jury will think of your main witness, your key theme, or your presentation style, pause and consider how jury economics’ key tenets may aid your assessment.
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.
