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Civil Litigation FLASHPOINTS August 2019

August 15, 2019Print This Post Print This Post

Michael Carter & David Starshak, Horwitz, Horwitz & Associates, Chicago
312-372-8822 | E-mail Michael Carter | E-mail David Starshak
Charles Faulkner, Influential Communications, Inc., Chicago
312-360-6499 | E-mail Charles Faulkner

Below is an excerpt from §1.6 of INSIDE AND OUTSIDE THE JURY BOX: EFFECTIVE TRIAL STRATEGIES — 2019 EDITION.

The Gestalt Nature of Perception

As noted in §§1.4 – 1.5 above, System 1’s automatic, unconscious pattern-recognition processes means that human perception is an active process. An active pattern-recognition process notices “features” in the environment that are already in an individual’s memory, often to the exclusion of others that are evident to individuals with a different biological, personal, and cultural backgrounds. This fits with numerous observations on the nature of perception: “Perception is reality.” “How one perceives things depends on where they are standing and who they are.” And the old saw, “It’s not how things are that matters, but how they are perceived.” Perception is more like a flashlight somewhat illuminating something in the darkness than a mirror reflecting what is in front of it. What none of the above quotes capture is that there are principles, or laws, of perceptional organization regardless of the content.

These “laws” were discovered in early 20th century by German psychologists who called it “Gestalt” for “whole form.” Stanley Coren et al., SENSATION AND PERCEPTION, pp. 298 – 303 (5th ed. 2003) (Coren). These laws are still taught to graphic designers and media specialists. Stephen M. Kosslyn, GRAPH DESIGN FOR EYE AND MIND (1st ed. 2006). The essence of the ideas can be summarized as follows: We perceive “wholes” and “relationships” more than individual items. Our brains seek continuity, coherence, and closure. For example, a row of flashing lights appears to point, movies are not seen as individual still pictures, and things (and people) “naturally” fall into groups. An optical illusion is an example of a Gestalt pattern — once these patterns are seen, they cannot be unseen. Neurologically, we are creatures who must see and “believe” a picture or pattern before we can doubt it. Changing these pictures or patterns is not so much a matter of picking them apart (as if on cross-examination) as it is building up another Gestalt “picture” or pattern that is so simple, clear, vivid, and familiar that it supersedes the original.

The most fundamental Gestalt laws for trial lawyers are (a) similarity, (b) proximity, (c) symmetry, and (d) closure.

Similarity. The first and most pervasive Gestalt law is similarity. Things seen as somehow “like” each other are grouped together. This perceived similarity could be as simple as shape or color, or could be as complicated as the cut of a lawyer’s suit, the demeanor of the plaintiff, or the imagery in an opening statement. System 1 is a subtle pattern-recognizing system that draws perceived similarities from the individual jurors’ past experiences. The ease with which these automatic and unconscious similarities occur in the minds of the jurors determines what is true and real for them — which will vary, often greatly, from juror to juror.

Proximity.The laws of proximity and similarity have overlapping and reciprocal relationships. When things are in close proximity to each other, System 1 recognizes similarities between them. Conversely, when these same things are far apart from each other, System 1 recognizes differences. The proximity can be physical (such as two objects placed next to each other) or can be words or images in a sentence. Placing “9/11” within a few words of “Saddam Hussein” and repeating it ad nauseum convinced 7 in 10 Americans in 2003 to believe they were connected. US public thinks Saddam had role in 9/11, The Guardian (Sept. 6, 2003). Despite trillions of dollars in military spending and massive loss of life without any evidence linking “9/11” to “Saddam Hussein,” the laws of similarity and proximity were so powerful that almost half of all Americans still believe that the two are connected. Such is the impact of these Gestalt laws on perception.

Symmetry. Symmetry is a pervasive sorting principle. When aspects of an experience are perceptually connected around a center point to form a coherent shape, it is pleasing to us. Symmetrical faces, bodies, buildings, and art are judged more attractive. Symmetry informs our ideas of balance and fairness. In a trial, symmetry can have drastic consequences. If something bad happened to someone, they must have done something to cause (deserve) it. Symmetry demands that jurors look for a cause equal to the effect (damages); that is, a big cause must have a big effect. Conversely, it is hard for jurors to conceive of a little cause (e.g., slip-and-fall or minor impact vehicle collision) having a big effect (e.g., millions of dollars in damages). A lack of symmetry can have a dissonant effect on a juror’s perception of the case.

Closure. The importance of closure is evident to anyone who has been pulled out of a mystery novel, movie, or pint of ice cream before the end. In Gestalt experiments, people perceived specific shapes where there were only bits of lines. Coren, supra. The brain will still perceive four equidistant 90-degree angles as a square even without joining lines. Trial lawyers will know this from the moment evidence is promised and then withheld as the result of a sustained objection. The jurors strain to hear what the judge is whispering to the lawyers, and they wonder what is being left out. Like with the incomplete shape, jurors unconsciously and automatically fill in what they think is missing with their imagination. They often end up with very different pictures, and stories, as they draw on their past experience, not their neighbors’. Moreover, the fewer or fuzzier the perceived event, the more the jurors will have to imagine to achieve closure — and will not remember it as something imagined. This seldom leads to a picture that is helpful to the lawyer’s case.

While these Gestalt laws were presented sequentially for clarity, they occur simultaneously in the jurors’ physical world, their social situations (like the courts), their imaginations, and the language they hear around them. The brain is always applying these laws in the background, shaping the perceptions of every juror every of step of a court case.

For more information about civil litigation, see INSIDE AND OUTSIDE THE JURY BOX: EFFECTIVE TRIAL STRATEGIES — 2019 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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