NO, THEY DON’T HAVE TO UNDERSTAND
It’s only natural to believe that a concept must first be understood before it can be persuasive. A common mistake in the field of litigation is thinking that the trier of fact has to understand “our technology” to find for “our side” of a case. This fallacy is essentially, “If they understand the technology, then they will believe us.” Litigators sometimes commit this fallacy unknowingly, and sometimes knowingly. I won’t speak to the need to get facts in the record—your appellate strategy is what it is. But from a persuasion standpoint there are two primary problems with the concept.
1. It is difficult to persuade jurors unless they are first interested in what you’re talking about (as a general rule, humans do not typically retain much information on subjects that don’t interest them).
2. Understanding your technology doesn’t mean the fact finder will be persuaded to find for your side of the case.
I wrote about this concept as a guest blogger on the Science in the Courtroom website. http://scienceinthecourtroom.com/index.php/guest-commentary/51-christopher-dominic-a-trial-consultants-thoughts. In that article, I focused specifically about the challenge of having to explain statistical significance to people who haven’t bought into the concept of normal distribution. The more I reflect on this, the more I think the two aforementioned problems relate to anything that risks putting your average, non-technical person to sleep. Examples include patent claims, financial statements, and spreadsheets. This is not to say that explanation isn’t required. Every technology case needs a “technology 101,” but it shouldn’t take long and should be delivered in the form of a story that most people can understand (think schoolhouse rock without the music or singing).
To address the problems with number 1 above, it can be helpful to think, “What story framework could the technology be a part of so that it develops a human interest hook?” Whether your technology saves lives, or perhaps just makes people’s lives easier, an anecdote showing why it’s important will help keep jurors interested. Once people have a way to think about the technology, it increases the likelihood that they will want to know more.
To address the problems with the second point, it can be helpful to consider, “Where is the line between helpful information, and too much information?” For example, does it truly help people to know about the latest design improvement six months ago. or will they be more interested in learning why it happened? Some venues are better than others in this regard, but the point is that just like asking one question too many of a witness, you can diminish your case’s overall persuasive force by spending time on details that don’t matter to the result you seek.