Jury science: the forgetting curve
November 17th 2011
We are excited to share our e-newsletter with you. Because we are one of the few firms in the country that specialize in trial communication, MGM is uniquely positioned to understand how to engage juries. We receive tips from listed super lawyers, sought-after expert witnesses, and trial technology firms. In The Demonstrative, we will share those tips with you along with interesting profiles of outstanding advocates. Please enjoy and call MGM Trial Services to present your testimony in HD.
The Thanksgiving Tale of America's First Black Jurist
Robert Morris, Sr. was the first African American to argue in front of a jury. Despite the fact that he was a hero of the abolitionist movement, and pioneered the argument for school integration a century before Brown v. Board of Education, most people have never heard of him.
His grandfather was born in Africa and brought to America in bondage. His father was a waiter in Salem, Mass. Still, Robert Morris, Sr. became one of the most successful attorneys in America at a time when most blacks were still the victims of slavery.
He was the second African American admitted to any bar in the nation's history, but no biography of his life has ever been published. He was the first African American jurist, but he has no memorial in his hometown of Boston. He was the first African American to argue to a jury, but when his most famous case is described, historians often misstate his name.
|Ellis Gray Lorin
On Thanksgiving Day 1826, 13-year-old Robert Morris was already known as an outstanding waiter. During dinner, his wit and charm brought him to the attention of Ralph Waldo Emerson's lawyer, Ellis Gray Loring. Mr. Loring hired Morris to work in his home. When Loring's law scribe was unable to complete his work, Morris stepped in. During the day, Morris worked around the house, and then stayed up long into the night copying legal briefs, memoranda, and correspondence. In 1847, he became the second African American in history to earn a license to practice law.
The day before Morris was to become the first African American to argue before a jury, defense counsel asked him if he was "going to try this case?"
When Morris answered that he was, the white man shouted back, "Then I will give you the devil!"
The next day, the courthouse balcony was overflowing with black faces, and the defendant had new representation. Robert Morris won that trial, but he was not so successful in the case for which he was best remembered.
|The African Meeting House
In 1851, Morris and Charles Sumner argued in front of the high court of Massachusetts on behalf of Sarah Roberts. The young girl walked byfive white schools every day to go to school on the first floor of the crowded African Meeting House on Beacon Hill. The Massachusetts Constitution provided for equality under the law, and the argument advanced by Morris and Sumner was that separate was not equal.
A century later, Thurgood Marshall often referred to Roberts v. Boston while preparing for his successful argument in Brown v. Board of Education.
Though it was a long way off, Morris created a mold for many lawyers of the civil rights era. Shortly after the Roberts case, Morris represented Shadrach Minkins, a runaway slave who was prosecuted under the
newly enacted Fugitive Slave Law. Under the law, federal marshals were given permission to arrest and "return" runaway slaves to their slaveholders.
Morris once again proved an able and powerful orator and attorney, but lost the case. Before the marshal had a chance to remove the defendant from the court-house, Morris signaled the loss to the crowd outside. A mob of angry blacks rushed the courthouse, secured Morris's client, and successfully transported the runaway slave to Canada. Morris was convicted for his participation, but won a reversal on a technicality.
|Robert Morris, Sr.
He was already well-known, but after overturning his conviction Morris's practice boomed. Morris became one of the most successful criminal lawyers in Boston. Though he was the most famous black attorney of his day, around half of his clients were Irish immigrants. Morris reported that he had an income of more than $3,000 annually, which equals around $540,000 in 2010 wages.
In the 1850's, the governor of Massachusetts made Morris the first African American in the judiciary with an appointment to the magis-tracy of Essex County. Later, a newspaper in New Orleans announced with consternation that Morris was running for the Mayor of Chelsea, Mass.
Though he lost his bid for mayor, Robert Morris had done more than his share to advocate for his clients and for equality under the law. His legacy is one that reflects a nation of both terrible hatred and terrific opportunity. Just as he was discovered around a Thanksgiving table, it is appropriate that he should be remembered this Thanksgiving for his uniquely American story.
The Science of Forgetting
The moment the jury hears the evidence, they begin to forget it. Understanding the science of forgetting will help the jury retain your arguments long after your best witness has been excused.
Quickly memorize a three letter combination.
Count backwards from 36 at intervals of 3.
Now try to remember the three-letter combination.
How many letters did you recall? Recollecting just one letter correctly would put you ahead of the curve. In an experiment performed by a husband and wife team in 1959, people were asked to read a series of three letters and then count backwards at intervals of three for 12 seconds. The participants forgot 85% of the letter combination by the time they'd finished counting. This simple experiment changed the way scientists thought about forgetting. Being familiar with this science gives trial lawyers the advantage in front of the jury.
The science of transience, or forgetting, was pioneered by a philosophy professor in Berlin over a century ago. Hermann Ebbinghaus published "Memory" in 1885. In the book, he details the thousands of agonizingly repetitive experiments he performed on himself over the course of decades. Among his findings was the fact that 60% of his memory was lost after nine hours, but only 70% of his memory was lost after a month. Ebbinghaus called the phenomenon the "forgetting curve" because memory loss slowed down over time in a predictable arc. In the century since his book was first published, most of his forgetting curve theory has been repeatedly validated.
Using the experiment described at the beginning of this article, scientists in the 1950's figured out that the forgetting curve starts in seconds, not hours. Every second that passed after a memory was created contributed exponentially to the likelihood that the memory would be lost. The study also proved that concentrating on something else in those first crucial moments sped up the curve substantially.
In the 1990's, college students kept daily journals recording exactly one event for each day of the semester. At the end of the semester, the student's memories were better than Ebbinghaus', but the forgetting curve had the same shape. The findings were clear. People forgot things remarkably quickly, but if memory transferred to long-term memory successfully, it would be far more robust. Outlasting the forgetting curve was the difference between creating an accessible memory and losing the moment forever.
Dr. Daniel L. Schachter explained how to create longer lasting memories in his book, "The Seven Sins of Memory." When given a short passage of text, people who are asked to memorize a passage by picturing the words in their head or by thinking of words that rhyme, forgot far faster than people who were asked to think about what the words meant. For trial lawyers, these experiments prove that providing evidence multiple times may not be enough. Each piece of evidence must have meaning and context during the initial presentation.
In litigation, the best way to provide context is to present clear and compelling graphics along with witness testimony. While doubt has been cast on traditional learning style theories, studies uniformly show that information is most effective when it appeals to the eyes, ears, heart, and mind. In addition to providing the kind of context that makes memories stick, introducing graphics through testimony gives juries more chances to form long-term memories without being cumulative or boring. From the moment an expert states his conclusion, a trial attorney has only moments before the jury will start to forget. Introducing graphics and video in those moments could mean a favorable verdict. The team that understands the fragility of the first few seconds will be ahead of the forgetting curve.