TLV Guest Blog

January 2, 2023

Pausing, Processing And Persuasion

I was reading an academic article about persuasion science. I paused when I got to the end of a sentence. I wasn’t sure I understood it. After thinking about it for a few seconds, I was sure I hadn’t understood it. (Academic articles are frequently laced with jargon that the authors assume the readers understand. The sentences tend to be long and are packed with information.) I went back and read it again – this time more slowly. Then, I paused again. I understood it better than the first time I had read it, but still needed a little time to think about the subject. This is how most people process what they read. Students who don’t stop to think about what they have just read will likely do poorly on examinations because the ability to remember is closely linked to whether they understood and processed the information. Jurors listening to lawyers and witnesses don’t have the ability to press a pause button so they can think about what they just heard. This blog discusses how lawyers can present information so that jurors will be more likely to remember and be persuaded.

September 28, 2022

Standard Contract

Heuristics are common understandings, which are mental shortcuts that spare the brain from expending energy on the hard mental work of analyzing facts and information. Many heuristics are truisms that people have decided are correct, regardless of whether they actually are correct. For example, the description of “a standard contract.” For the lay person, it likely brings to mind a written agreement that contains benign and accepted terms. In other words, nothing to be concerned about.

August 2, 2022

Reality Isn’t Universal

In Persuasion Science for Trial Lawyers, I wrote about the research that explains how the brain decides whether to engage in critical thinking or jump to a conclusion based on prior experience, bias or stereotyping. I explored how we might be able to present facts to juries so that their brains would not refuse to consider them. In Chapter 14, I quoted Colin Firth, the actor who funded a serious academic study that he humorously described as designed “to find out what was biologically wrong with people who don’t agree with me.” The study results did not find that there was anything biologically “wrong” but did confirm that there are biological differences in brain structure that account for one’s inclination to be liberal or conservative.

May 16, 2022

What We Don’t Know Can Hurt Us

There are “the known unknowns and the unknown unknowns” which is how former defense secretary Donald Rumsfeld described some things we know that we don’t know, and other things that we don’t know that we don’t know.  In the general public, there are people who enjoy the challenge of learning new things, and others whose brains resist having to do the mental work of learning. It might be compared to those who engage in physical exercise, and those who are couch potatoes. Jurors who do not relish the work of learning will resort to so-called “common sense” which Einstein characterized as “nothing more than a deposit of prejudices.” Prejudice, in this sense, is to resort to that which is believed to be true, rather than arriving at the truth after thoughtful analysis. In other words, to pre-judge. These jurors do not know what they don’t know, and are typically not inclined to change their pre-judgments, even when skilled trial lawyers are trying mightily to educate them.

April 28, 2022

Translating The Science

Academic psychologists have been unlocking the mysteries of how people accept or reject persuasion and arrive at decisions. But, like lawyers and their legalese, social scientists often use a dizzying array of overly-complicated descriptions. The concepts and discoveries are important, but often explained in what might be described as speaking in tongues. Here is an example (and please read to the end):

November 4, 2021

Navigating the Shifting Landscape of MSP Compliance

The wait for proposed rulemaking related to Medicare Secondary Payer (MSP) compliance obligations regarding future medical services in liability settlements continues. Although the Department of Health and Human Services issued their initial notification of proposed rulemaking in the fall of 2018, the target date has been moved several times and is currently set for October of 2021. However, focusing solely on the notice of proposed rules will cause a practitioner to overlook the impact of important MSP compliance changes taking place with Section 111 Mandatory Insurer Reporting obligations on settlements.

September 21, 2021

TCH Partner Brett Turnbull Notches $9 Million Victory

On October 11, 2019, an Alabama jury returned a $9 million verdict for the family of Hope Johnson in a wrongful death medical malpractice case. This verdict breaks records for Lee County, Alabama.

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