The “Curse of Knowledge”

by Jonathan, Carey, Oct. 23, 2014

Abraham Lincoln once famously remarked: “He who represents himself has a fool for a client.”

Why did President Lincoln, an attorney, feel compelled to make that statement? And could the same logic be true for a modern-day attorney who chooses to create his or her own trial presentation without outside help?

To understand the answer to the question of whether a person should retain counsel – or whether an attorney should hire a designer to help create trial exhibits – one need only look to the basic problem of trying to go at it alone: lack of perspective.

In a recent Wall Street Journal op-ed, “The Source of Bad Writing,” Harvard Professor Steven Pinker suggests that the “curse of knowledge” may lead a writer to assume that a reader will know as much about a subject as the writer does. Pinker cites examples of how experts with deep knowledge on a subject may be unable to share their insights not only with laypeople, but also with well-informed peers. Pinker claims that this kind of “curse” has nothing to do with ignorance or low intelligence; in fact, it’s often the brightest and best informed who suffer the most from it.

This may be where the fresh perspective of an outsider may be invaluable.

Designers who are brought into a case shortly before trial, after an attorney and staff have invested months or years in discovery, motions and settlement efforts, may be better positioned to place themselves in the shoes and mindsets of potential jurors. An attorney may know his or her case inside and out, but an outsider may see the case in a new light. Together with an outsider who is experienced in the rules of persuasion, an attorney may find it easier to determine which case themes and arguments best resonate with jurors.

The give-and-take process of creation and revision is critical to crafting a compelling message. Several rounds of drafts may be required to create succinct and persuasive trial graphics. As writer John Keats once penned, “I have written a long letter … because I did not have time enough to write a short one.” The process is no different for trial graphics.

Secondly, an attorney who attempts to design his or her own exhibits is likely to be less efficient at design than an artist who practices the craft all day long. It may take an experienced designer only a few minutes to sketch out a chart, but it takes years or even decades to learn how to sketch one in a few minutes.

Finally, trial exhibit designers may work on hundreds of cases each year. Because they hone their skills with some of the top trial lawyers, they build up a knowledge base of exhibit ideas and strategies that tend to work with jurors. Frequently, designers are able to suggest graphics that never would have occurred to the trial team.

In the famous Rock Island Bridge trial of 1857, lawyer Abraham Lincoln was able to avoid the “curse of knowledge” and prevail against steamboat operators who wanted to prevent the construction of railroad bridges. While Lincoln’s pre-trial work included research on the mechanics of railroad bridge construction, the velocity of Mississippi river currents, and the navigation of steamboats, he presented simple closing arguments that were easily understood: “A man has just as much right to cross a river as another has to go up and down that river.”

Today, most jurors have been raised with high visual fluency cultivated through years of television and Internet exposure. Even Lincoln would probably admit that most 21st century jurors are more likely to be swayed through visuals than through oral argument alone. To be successful with modern-day jurors, many attorneys consider an outside designer to be a critical player on their trial team.

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