By Thomas M. O’Toole, Ph.D. & Kevin R. Boully, Ph.D.
The empirical data on the adjudication of allegations of negligent conduct by defendant entities by laypersons in a courtroom setting demonstrates the plenary role of heuristics leading jurors to utilize the peripheral route when cognitively processing the voluminous data conferred upon them. In fact, it was Richard E. Petty and John Cacioppo who developed the dual process theory of the ontogenesis and augmentation of disposition by the layperson, which we now call Elaboration Likelihood Model or ELM for short. ELM considers the variables of attitude change approach. Central and peripheral routes impact conceptualization, retention, re-verbalization and the modification of longitudinal comportment. We would recite key findings and lessons directly from the journal publications, but we worry you would find them too pedantic.
If you are still reading this column, consider yourself the outlier. This introduction was neither compelling nor engaging, and we likely lost more than half our readership by the end of the first paragraph. Complex language, often believed to impress audiences, typically has the opposite result. This was a lesson we had to impress on our students back when we were both public speaking teachers at the University of Kansas. Students would often use big words in their speeches to impress us, but instead, these big words usually sounded more awkward and out of place than anything else.
The problem is not limited to students. At least one of these authors regularly used big, academic words to impress in his first few years in this field of work. And most relevant to this month’s column, we continue to see attorneys regularly use complex and confusing jargon in the courtroom. There are many possible reasons for this. The most likely is that such legalistic terminology is often essential for most of the process leading up to trial, in motions, hearings, and so on. Sometimes, the nature of the case makes it easier to fall into the trap of drowning in complex terminology. Medical malpractice and patent infringement cases come to mind. Other times, attorneys fall into the same trap as our former students and at least one of these authors: they believe the use of big words will impress jurors, make them sound very intelligent, and enhance their overall credibility. Finally, and probably most common, many attorneys often use complex and unfamiliar language without realizing it. It is second nature to them because they have studied and worked in their highly specialized profession for so long.
Sometimes complex language can seem at first to have a positive effect. Years ago, during a shadow jury project on a medical malpractice case, one of the shadow jurors noted how intelligent they believed the defense attorney was, only to qualify the praise with the note that they did not understand most of what he was talking about. Impressing jurors may seem like a pathway to success, but in this instance, the result was a juror who had no ability to rearticulate key defense arguments in deliberations. In other words, this impressed juror would have no impact on deliberations because he could not effectively advance the complex defense arguments during deliberations.
At this point, many attorneys reading this column may be quick to conclude the point is obvious and one they need not read about at this stage of their career, but we would ask these attorneys to think critically about the phrases they use at trial. We suspect they engage in lawyer speak more often than they realize. Consider the trial attorney who tells jurors, “We have retained Dr. Smith in this matter, who is an expert in neurology, and he has opined…” We hear this kind of phraseology all the time when the much more accessible statement is something like, “we went and talked to Dr. Smith, who has studied brains his whole life, and here is what he has to say.” Other words and phrases we commonly hear are “I submit to you,” or “stricken.”
We could go on with endless examples, but the point is that most attorneys use inaccessible terminology more than they realize.
Use of complex and unfamiliar language use has three key implications. First and foremost, research has consistently shown audiences are more likely to reject messages draped in language that is unfamiliar to them. For example, cognitive load theory highlights the limited capacity of our memory and brain’s process powers. When we ask too much of our target audience, we run the risk of overloading them, making them more likely to dismiss or reject our message, or simply stop listening. Consider the comments of a recent mock juror who wrote on their questionnaire, “A lot of legal jargon could work against Acme [name intentionally changed] depending on the jury…Sometimes I got lost in the details of the talk because there were so many corporate words and jargon.”
Notably, research has found that judges also prefer “plain English” over legalese. A 2010 study by attorney Sean Flammer found that 66% of the judges in his study found “plain English” argument summaries more persuasive than their legalese counterparts. This is particularly interesting given that judges are well-versed in the complex legal terminology that pervades legal arguments, yet most preferred plain English instead.
Perhaps more interesting, there are studies that have examined complex names such as those used by drug manufacturers and have found people are more likely to distrust drugs with complex and unfamiliar names.
The second implication relates to what happens when people have to make a decision about a message they do not necessarily understand. In our unnecessarily complicated introduction, we mentioned Elaboration Likelihood Model (ELM). This is a famous theory, supported by a wealth of research, about how the brain processes information. Essentially, there are two routes of message processing. Individuals either process a message centrally, meaning they engage the substance of a message and evaluate its merit, or they process it peripherally, meaning they rely on peripheral cues to guide their decision-making. For example, if we are trying to decide which cereal to buy for our children, a central route might include assessing the nutritional value of the cereal, whereas the peripheral route might involve being persuaded by the mere fact that Lebron James appear on the front of the cereal box seeming to endorse it as his go to cereal.
Peripheral processing is one of the most common complaints we hear from attorneys about jury decision-making. We have heard endless war stories where the attorneys claimed the jurors were influenced by the attorney’s choice of clothing or some other seemingly trivial factor. However, the research on ELM shows that people use peripheral process when there are barriers to central processing, and complex language is one of the most common barriers to central processing. If jurors do not understand what you are saying, they are more likely to rely on peripheral factors when making a decision about the case. As Nobel Prize-winning researcher Daniel Kahneman put it in his book, Thinking, Fast and Slow, “When faced with a difficult question, we often answer an easier one instead, usually without noticing the substitution.”
The final implication is what happens when jurors seek out peripheral cues amidst their confusion. One of the most common peripheral cues is the likability of the speaker. We know jurors tend to gravitate towards likable attorneys, but the research on the use of complex language shows that they are more likely to distrust and dislike speakers who unnecessarily use complex and unfamiliar language. In short, complex and confusing language makes attorneys unrelatable. Jurors want to hear from people who talk like them. Going back to some of the phrases and words we mentioned earlier, the average person does not say things like, “I submit to you” or “Mr. Smith has opined.” Even worse, despite the example from the shadow juror we cited earlier, a study cleverly titled “Consequences of erudite vernacular utilized irrespective of necessity” found that audiences are more likely to criticize the intelligence of a speaker who uses complex language than one who speaks in accessible language. Consequently, attorneys who use complex and unfamiliar language not only encourage jurors to engage in peripheral processing, but they also decrease the chances that the peripheral processing will favor them.
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.
