Lately, I’ve seen increasing reports of people voluntarily separating themselves from the news. Often, this means taking a break from Facebook and its ubiquitous “Newsfeed.” In other cases, however, it involves people sounding the retreat on watching the news or reading the paper. For some, it means being more selective, in effect leaving the information wilderness for their own preferred walled garden. A recent cartoon from The New Yorker, itself widely shared on social media, captures that spirit with the caption, “My desire to be well-informed is currently at odds with my desire to remain sane.”
A recent Pew Survey confirms that these concerns are not just anecdotal. Nearly seven in ten Americans (68 percent) report having “news fatigue,” or a feeling of being worn out and unable to keep up with the pace of news developments. That amount is even higher for Republicans and independents who lean Republican (77 percent), for white Americans (73 percent), and for women (71 percent). Particularly for those who follow politics, the news cycle has been on overdrive lately. But more broadly, these results are a reminder that attention is a finite resource, and a resource that is increasingly taxed in modern times. In a previous post, I wrote about “rational ignorance,” or the human tendency to focus only on what is novel, useful or interesting in a particular context. Growing news fatigue adds another reason why litigators need to adapt to a public that is increasingly accustomed to filtering, selecting, or simply opting out. This post shares a few implications.
Use News Fatigue in Jury Selection
As a background factor, general news fatigue might be relevant in your voir dire. Current events often provide a fruitful context for asking about attitudes that are relevant to your case. But, however much you are informed on those events, you cannot assume that members of your venire are familiar. Even if a story has received wall-to-wall coverage in your world, it still may not have passed through the potential jurors’ filters. For that reason, it is a good idea to ask about knowledge before you ask about attitudes. For example, “Who here has heard of the ‘Me Too’ movement?” Because news fatigue is a very common experience, it can also be referenced as a way of priming particular answers. For example, if you are dealing with pretrial publicity and wanting to decrease the number claiming that they’ve been exposed to it, then you might want to contextualize the question through news fatigue: “We all know that these days, we are inundated by news, and it is tough to keep track of everything. But I wanted to ask about one particular story…”
Account for News Fatigue in Evidence Presentation
News fatigue is a sign that our tolerance for more and more information is not infinite. Litigators sometimes forget that. I’ve previously noted the “presumed relevance” that can influence attorneys who’ve spent months or years assembling a case and who now feel that every detail is important. The people in the jury box, however, have a habit of shedding detail in order to maintain focus. Increasingly, they are also becoming used to tuning out or to shifting attention when they start to feel overwhelmed or bored. In that context, it makes sense for both witnesses and attorneys to remember that they need to be constantly gaining and regaining attention. What matters most is the message that the information is useful to jurors. Some phrases to rely on:
Here is why I am telling you this…
The importance of this fact is…
What you will want to do with this information is…
And Look Out for Counterproductive Compensation
In the media world, sources are naturally adapting to news fatigue. A recent New York Times article, for example, refers to the observations of psychology professor Graham Davey writing, “As consumers become satiated, the news media responds by increasing the ’emotionality’ of its coverage, meaning negativity is emphasized to keep customers engaged.” That might work for a particular story, but for the public’s tolerance of news in general, it is probably encouraging people to tune out even more. That same counterproductive compensation is possible in trial persuasion as well, if litigators try to respond to an abbreviated attention span by becoming more theatrical or emotional, or by overdramatizing the facts. In similar fashion, it might work for the specific point that it is used on, while at the same time causing jurors to generally disengage or to become more skeptical. Instead of sensationalizing in order to gain attention, it is better to focus on utility by continuing to emphasize to jurors that the information you are providing isn’t just accurate or logically superior, it is useful in helping the jurors do what they want to do, which is to reach a good and fair decision on the merits of your case.