You hold a mock trial in a complex case. You present your evidence with all possible clarity. The jurors miss more than half of it. What happened?
What did you say, honey?
To grasp this, think about talking to little kids. Before I had one, I could never figure out what little kids were saying. I was always asking them to repeat, and then would pretend I got it rather than ask again. I figured kids just didn't speak clearly.
When my daughter started talking, I realized I had been wrong. She spoke with perfect clarity. I always understood her, and suddenly I understood other people's kids as well. But other childless adults were still baffled. They still bent forward with blank faces, just as I had done before.
The gap was revealed: it wasn't clarity, it was context. My daughter was saying, perfectly clearly, the names of Tinky Winky, Dipsy, La-La, and Po -- the characters in Teletubbies, the kids' TV show that fascinated her at that time. The problem was not that she was saying it wrong; it was that her poor adult listener had never heard of Tinky Winky, didn't know there was such a thing as Tinky Winky or the Teletubbies show or that she might be talking about television at all.
Made To Stick and "the curse of knowledge"
In trial, lawyers are the incomprehensible little kids, and jurors are the baffled adults. You explain exactly how the defendant pumped up its financial statements by using unreasonable assumptions for the useful life of its equipment in calculating depreciation. You even try to explain what depreciation is, how it corresponds to familiar concepts, why it's an expense even though no cash changes hands, and so on. But you've been working on this case for months, and you've spent the last several days talking to hardly anyone but your expert. You have forgotten how much you know, and how much the jurors don't yet know. You don't give them enough context.
In their new book Made To Stick, which has lessons for trial lawyers on almost every page, authors Chip and Dan Heath give this problem a name: The Curse Of Knowledge. They describe a 1990 study in which people were asked to "tap out" familiar songs by knocking on a table, and listeners were assigned to try to guess the song. The tappers thought their listeners would guess right about half the time; in fact, the listeners got only one song right out of every 40. (The Heaths demonstrated this experiment in an NPR interview last week; they tapped out "The Star Spangled Banner." I could have sworn it was "Happy Birthday.") The tappers "are flabbergasted," the Heaths explain, but it's natural:
The problem is that tappers have been given knowledge (the song title) that makes it impossible for them to imagine what it's like to lack that knowledge. When they're tapping, they can't imagine what it's like for the listeners to hear isolated taps rather than a song. This is the Curse of Knowledge. Once we know something, we find it hard to imagine what it was like not to know it. The knowledge has "cursed" us. And it becomes difficult for us to share our knowledge with others, because we can't easily re-create our listeners' state of mind.
It's a curse trial lawyers know well. We're luckier than some, though, because at any given time, we've recently had to learn a lot. For each new case, we have to learn a new body of knowledge. The key at trial is remembering what helped you learn that knowledge, so you can pass it on.
(Teletubbies photo by sara at http://www.flickr.com/photo_zoom.gne?id=103466903&size=m)