Thin slicing and jury selection

Chocolate covered bacon.


Grilled cow's brains.


Cockroaches.

Be honest. What was your first reaction when you read the words? Chances are that's how you feel about them. Now, upon further reflection you might change your mind. You might modify your opinion so as not to offend someone.

But nothing can change that initial reaction - your gut reaction. In his book Blink, Malcolm Gladwell talks of "thin-slicing." That's the process of jumping to a conclusion based on a small sample size - but, remarkably, that gut reaction is oftentimes correct. It works because we are able to take the pattern of what we saw or heard and compare it with other patterns we've experienced during our lives.

Ask a young child a question and you will get an honest answer - because the child hasn't learned to filter his or her opinions. I have a three year-old daughter and there are situations that my wife and I dread because we have no idea what's going to come out of her mouth.

I believe that jurors are the same. I always ask jurors a series of scaled questions designed to identify their attitudes (and to ensure I speak to everyone). When I ask a juror to rank on a scale of 0-10 whether they think my client is guilty, I get answers all over the board. The same thing happens when I ask the panel to rate their feelings on whether my client testifies or not. I use those answers to strike jurors for cause.

When the juror is brought before the bench I stand and listen while the prosecutor, and even the judge, attempt to rehabilitate him. At that point the juror has had time to think over his or her answer and is now standing face to face with an authority figure sitting on high with a black robe. Of course that juror is going to say "yes" when the judge asks him if he can follow the law - despite the honest answer he gave during voir dire.

That answer doesn't mean that the bias or prejudice is gone - it just means that the juror felt pressured by the situation to rethink his or her initial reaction in order to please an authority figure.

See also:

"'Thin slices' of life" Monitor, March 2005, vol. 36, no. 3
"Very first impressions" Emotions, 2006, vol. 6, no. 2
"First impressions surprisingly accurate" WebMD, Nov. 6, 2009

Tipping the jury in your favor

Ever wonder what makes one idea become the next big thing while another just dies on the vine?

Ever wonder why Hush Puppies made a comeback? Or why the crime rate in New York City plummetted? Or why the rates of venereal disease in Baltimore increased?

Malcolm Gladwell did and he wrote a book exploring the how's and why's behind the idea that makes it. In The Tipping Point, Mr. Gladwell points to three phenomena and their role in determining the next social epidemic to come down the pike. Those three phenomena are the Law of the Few, the Stickiness Factor and the Power of Context.

Gladwell's Law of the Few looks at the role of connectors, mavens and salesmen in creating social epidemics. We all know people who seem to know everybody else. My grandmother's late companion was like that - it seemed that he knew everyone. Gladwell labels folks like that connectors. These connectors are important in the spread of a social epidemic precisely because they have so many connections across race, religion, ethnicity, income and political ideology.

Mavens have fewer connections but they have knowledge. What to know the best car on the market? How about the best hi-def television? Or even the best place to buy gas? Mavens know the answers and they are very influential among their circle of friends.

The mavens and connectors interact with salesmen who bring the ideas or knowledge to a wider array of people and the seeds are sown for the epidemic to go viral.

Now these messengers matter, but there must be a message to send and that is what stickiness is all about. Is the message memorable? Does the message make you want to know more? The stickier the message, the more the recipients want it. And the more the recipients want the message, the easier it is to "infect" the next group.

The final factor is the context of the message. Your message may be sticky and you may have an army of messengers, but if the initial conditions of your delivery aren't right, then the social epidemic can be avoided. Gladwell points out that when analyzing a situation we often fall victim to the fundamental attribution error which is a fancy way of saying we tend to analyze the actors' fundamental character traits and ignore the environment.

According to Gladwell, when these three phenomena all come together an idea can "tip" and become the next social epidemic - whether we're talking about the comeback of Hush Puppies, the popularity of Blue's Clues or why Paul Revere's ride was so successful.

Understanding these three laws is vital when preparing a case for trial. First, is your message sufficiently sticky? Can you sell your theme to the panel and will they want to "buy" it?

Don't forget the context of your message. What was happening at the time of the event? What role, if any, did your client play in what happened? What is the public's mindset regarding that particular crime?

Finally, who are the mavens on the panel? Who will the other panelists look to for guidance? Who are the salesmen? Which panelists can take your theme and run with it?

The Tipping Point looks at those critical factors that make one idea take off while another idea falls by the wayside. Use the same analysis to "tip" that jury in your favor.