The title refers to the two systems that our brain utilizes to process information : System I , the unconscious mind which operates intuitively , automatically , and rapidly , and System 2 , the conscious mind , which is reflective , controlled , effortful , and slow . As Kahneman explains “ Most of what the conscious mind thinks and does originates in the unconscious mind , but the conscious mind takes over when things get difficult , and it normally has the last word .” Attorneys are well advised to acquire the Trial Science skill of communicating with the unconscious mind .
Kahneman ’ s insights on storytelling assist trial lawyers in acquiring the vital trial skill of telling a compelling , explanatory story in simple and coherent terms .
Jurors ’ narrative fallacies arise from their attempt to make sense of the world . “ Making sense ” of the complex litigation that jurors confront today is no mean feat . It falls to the lawyers to provide a simple and coherent account of the actions and the people in the narrative . To accomplish this , Kahneman advises to focus on a few striking events that happened , rather than on countless events that did not occur . Also focus on concrete rather than abstract concepts .
50 x The Trial Lawyer
Kahneman advises , in creating a simple trial story , to assign a larger role to choice and intent rather than luck or stupidity . Also avoid internal inconsistencies in the narrative which will reduce the ease of thought and the clarity of feelings of the jurors . A clear and simple trial story is more easily accepted and processed by jurors .
When creating trial stories , attorneys should be aware of the hindsight bias , which indicates that jurors reason backwards from the outcome to determine causation of an event . Kahneman recommends that attorneys seek any recent salient event as a candidate to become the kernel of a causative narrative .
2 . Modeling the Damages Trial Story
In creating a body of evidence on damages , begin with the Court ’ s charge to be certain that the elements of damages that you are creating is consistent with the recoverable damages on which the Court will instruct the jury .
The trial story on damages will consist primarily of general damages which include physical pain and suffering , mental anguish , physical disability , physical disfigurement , and loss of enjoyment of life , each of which require juror assessment through careful evidentiary analysis . The attorney should create a separate body of evidence on each of those elements that have evidentiary support .
The primary source of damages proof in a consolidation litigation with multiple Plaintiffs suffering from the same disease is a carefully prepared and fully informed attorney who first educates himself on the numerous sources and types of damages proof in the Plaintiffs ’ cases .
Assume that the Plaintiff is in an MDL where there are numerous Plaintiffs with the same disease , such as the Camp Lejeune litigation , the first task for the lawyer is to do scientific background research on the disease to learn the injuries , symptoms , treatments , surgeries , medications , and therapies that patients with this disease can expect , along with all of the side effects that will be produced . In the scientific search , the attorney must identify the latency period plus each of the applicable confounders , such as smoking , alcohol , drugs , an obesity , and genetics . Data on the required exposure to develop the disease is important as is the Plaintiff ’ s prognosis .