I don't like the phrase "mind reading," particularly as applied to juries and judges. It invokes some inaccurate stereotypes of what trial consultants do and of what is possible when watching or modeling a jury. Whenever I'm asked to sit in court to observe, I make sure the client is aware that I'm doing many things, but mind reading isn't one of them. But generally, the clients are still motivated to have someone there whose main job is to think about how the fact finders might be perceiving and recalling what they hear. And it is a good thing to have that motivation. In fact, a recent research article (Carpenter, Green & Varcharkulksemsuk, 2016) proposes this as a new construct: a "Mind Reading Motivation." They call it "MRM" (because they're academics), and it refers to a psychological preference for noticing and using small pieces of social information in order to gain insight into another's mental state. It is similar to the idea of "Theory of Mind" (Yes, they call that "TOM"), which refers to our understanding of another person's perceptions. The new construct, however, emphasizes the ingredient of motivation. After the age of 4 to 6, we all have an understanding that others see things differently, but some of us are motivated to think about that in detail while others aren't.
The researchers define "Mind Reading Motivation" as a "willingness to effortfully engage with other people's perspectives and mental states." One of the authors, Dr. Melanie Green, clarifies in a piece in Psyblog, "We’re not talking about the psychic phenomenon or anything like that, but simply using cues from other people’s behavior, their nonverbal signals, to try to figure out what they’re thinking.” That tendency is distinct from actual mind reading ability, but nonetheless conveys a number of persuasive advantages. “Those high in MRM," Dr. Green continues, "seem to develop richer psychological portraits of those around them," and as a result, they do a better job of analyzing their target audience and are more effective in collaborative settings. This construct adds to the list of personality factors that influence persuaders. It carries implications for litigators as well because it goes to the issue of audience awareness which is at the heart of persuasion.
Researchers from University of Philadelphia, SUNY Buffalo, and UC Berkeley (Carpenter, Green & Varcharkulksemsuk, 2016) conducted four studies involving a variety of psychological measures and message exposure conditions to explore and define the notion of a Mind Reading Motivation.
- The first study shows that MRM is a stable trait over time, and that it is distinct from mind reading ability.
- The second shows that those higher in MRM tend to create more nuanced and detailed descriptions of others’ mental state.
- The third shows that those higher in MRM showed greater attention and thought ("elaboration") toward messages connected to mental states and more sensitivity to perspective in the context of persuasion.
- The fourth shows that those higher in MRM show increased effectiveness in a co-leadership task, leading to better joint performance.
In all cases, the researchers were looking at the motivation to understand others, and not necessarily the effectiveness at it. “We didn’t measure ability directly in our study of teamwork," Dr. Green explained, "but the research suggests that just the motivation to understand others, and presumably the behaviors that go along with that motivation, appear to lead to benefits.” In other words, what matters is that you try. That emphasis on effort makes Mind Reading Motivation similar to Need for Cognition, a construct that really measures curiosity rather than intelligence. The finding there is that, when determining who is more likely to grasp a complex message, it is better to know whether someone welcomes a mental challenge than it is to know who is smarter. Similarly, with Mind Reading Motivation, it seems to matter more who wants to understand another's mind than it does to know who really has that understanding.
Here are a few settings where a dose of Mind Reading Motivation might be helpful in a trial context.
The Mind Reading Motivated Trial Presenter
It is quite possible that the emphasis on the law as well as the higher intelligence it takes to be an attorney, combine to make trial lawyers a bit egocentric. And by "egocentric" I don't mean conceited or arrogant, I just mean that they may have a tendency to prioritize their own perceptions and to believe, implicitly, that other reasonable people will tend to see the case the way they see the case. In contrast, a Mind Reading Motivation would encourage attorneys to start with a focus on how others are likely to see the case. The researchers explain that focus is an orientation that "allows people to overcome their egocentric biases when attempting to take others' perspectives." So a trial presenter who is continuously -- from pretrial research through post-trial juror interviews -- putting their audience's perspectives first will be a more attuned and more effective persuader.
The Mind Reading Motivated Witness
Testifying is difficult no matter the setting. But when I have a witness preparing for trial who has a lingering bad aftertaste about their deposition, I will often tell them that in some ways, testifying in trial is going to be easier. Why easier? Because the presence of a live jury makes the audience more obvious and provides the present reminder that you are talking to people. Not to opposing counsel, or to the court, or to the "record," but to living breathing people who are just doing their best to sort out right and wrong in this case. It can be therapeutic to keep that in mind. In the context of all this scientific, medical, and/or legal jargon, what are they likely to understand? In this storm of facts, dates, and documents, what are they likely to see as most important? It will never be easy, but it is often easier for the witness who places a proportionately higher degree of attention to what the audience wants and needs to know.
The Mind Reading Motivated Consultant
A trial consultant might be thought of as simply someone who is professionally dedicated toward cultivating a high "Mind Reading Motivation," as defined by the researchers. Consultants don't read minds (they really don't), but they do strive to keep their attention on what the decision maker is likely to be thinking. Using tools ranging from sophisticated social science research to simple human observation, consultants keep their minds on what a jury (or judge or arbitrator) might be thinking. The research suggests that, even in the absence of a perfect ability to read those intentions, the motivation to read them is worthwhile. In addition to scoping out the range of possible responses, there are also benefits to adding a consultant to the working group. The third study in the series, for example, showed that the presence of higher MRM individuals benefits the team, even if other members aren't higher MRM. They explain, "There are social benefits to being high in MRM, and reciprocally, interacting with someone who is high on the trait."
The Mind Reading Motivated Juror
Some jurors are motivated to reduce the complexity and find the simple black and white answer while others are motivated to understand the whole story including the intentions of the parties (even in cases where those intentions aren't legally relevant). In a products case, for example, some jurors prefer the simplicity of strict liability while others want to dig into the product developing and testing narrative to examine the company's motives in order to decide whether they were negligent or not. If your case benefits from jurors who are looking for the nuance and not the easiest answer, then you would want high MRM jurors. The researchers noted, "Not only are high-MRM individuals more attuned to information that includes perspectives, but individuals who are low in MRM are also motivated to attend to non-perspective information." So in cases where it is critical that at least some on your jury focus on the perspective of your client and your witnesses, you may want to include some of the scale questions in your supplemental questionnaire (the authors include the complete 13-question scale in their appendix.
It seems that the researchers have identified an important idea. Calling it the "chronic assumption that other people's minds contain useful, interesting information," make a good case for adding Mind Reading Motivation to the persuader's toolbox.