During a recent visit to the Supreme Court I was fortunate enough to witness Justice Breyer grabbing breakfast from the Court's cafeteria. He moved quietly through the public who largely remained unaware of his presence except for the handful of law students and Court watchers who gawked at his arrival. Justice Breyer smiled politely at the staring faces and patiently waited to prepare his tea and cereal like everyone else. As he left the cafeteria, he passed a large group of men and women excitedly debating the upcoming morning's oral arguments. An overtly gregarious woman stood up and stretched; ignoring others in the cafeteria, she accidentally struck the passing Justice Breyer, spilling her coffee and his tea over the front of his shirt and pants. Clueless of Stephen Breyer's position, she grabbed a napkin and laughing to her friends began to dab at his shirt while apologizing for her carelessness. A consummate gentleman, Justice Breyer told the woman not to worry and quickly left the cafeteria, passing a pale-faced middle-aged man leaning against a column. The woman turned to the pale faced gentleman and half laughing proclaimed "Honey, I feel so bad. I just spilled coffee all over that old man." "No" the man expelled through gritted teeth, "you just spilled coffee all over Justice Breyer." He turned out to be the arguing counsel in the morning's first case.
When aware of Supreme Court justices, the public often reveres them for their esteemed judicial position, and the Supreme Court preserves and emphasizes this reverence. The Court building's semblance to La Madeleine in Paris and The Pantheon along with the Court's depiction of gods and goddesses inspires a sacred feeling in visitors and those with business before the Court. However, beneath their robes and behind the Court's reverence, solemnity and ritual, the justices are most fully human. Justice Breyer's encounter in the cafeteria quite literally displays the collision between justice and citizen, foregrounding their shared human condition; thus it should not prove surprising that shared qualities link justices and citizen jurors. Aside from their lofty judicial position, Supreme Court justices have often been highly regarded for the legal knowledge they possess to resolve cases. Although not to the same stature, juries, as the foundation of our judicial system, have also been accorded significant discretion in applying laws. Unfortunately though, both Supreme Court justices and citizen jurors fall prey to human behavior that belies an impartial approach to resolving legal issues. Instead of an objective, impartial, and rational process of decision-making, both justices and jurors reflect a process of decision-making that relies on prior cognitive commitments, generative communication, narrowing of choices, and the elimination of competing alternatives, which scholars have labeled "Sensemaking." This article presents a dominant model of understanding Supreme Court oral arguments, suggests an improved approach to understanding human decision-making, identifies shared commonalities between Supreme Court justices and jurors, and provides practitioners with suggestions for preventing unpredictable sensemaking behavior.1
Oral Arguments and Human Behavior
To explain judicial behavior, political scientists largely rely on fundamental assumptions of human behavior that draw from economic theory which political scientists call the strategic actor model.2 The strategic actor model has its roots in the rational actor model or rational choice theory, which proposes that humans weigh all possible options, before selecting the best possible solution. Rational choice theory is "arguably the most popular and fastest growing theoretical orientation in contemporary political science," and also remains firmly planted within legal studies.3 Over the years, the rational actor model evolved into the strategic actor model which recognizes that a variety of factors may constrain a human's decision-making process.4 Among the most prominent scholars of Supreme Court oral arguments, Professor Timothy Johnson believes the strategic actor model best represents the justices' decision-making because "when making decisions, policy-oriented justices must account for the preferences of their immediate colleagues, the preferences of actors beyond the Court, and institutional norms and rules that might affect the decisions they can make."5 Under the strategic actor model, justices "strive to achieve their most preferred policy objectives" by gathering "information about all the policy choices available to them" and oral arguments "provide a time for justices to gather this information by raising questions concerning legal principles . . . courses of action. . . or a justice's belief about the content of a policy."6 For Johnson, oral arguments play the crucial role of informing justices of policy implications by exploring the consequences of various alternatives.7 Johnson's conclusions establish the strategic actor as one of the primary models for Supreme Court decision-making.8
However, similar to other scholars studying the influence of Supreme Court oral arguments, Johnson's use of the strategic actor model eschews substantial scholarly research demonstrating that humans do not behave rationally9 but rather rely on a variety of processes called sensemaking10 to process information and solve problems.11 And ironically but perhaps most importantly, Johnson implements the "strategic actor model" to evaluate oral arguments without accounting for the dynamic role communication plays in the environment of oral arguments.12 Johnson's oversight results from his reliance on the strategic actor, which only recognizes human communication as a form of information transmission, known as the transmission model.13 The strategic actor model and other forms based upon "rational" decision-making fail to capture the significance of communication and the dynamic nature of human decision-making, thus overlooking the rich communicative interaction occurring both within the Supreme Court and trial courts.14
It seems unusual that scholars studying Supreme Court oral arguments or courtroom communication employ decision-making models that overlook the role of communication because of communication's centrality within the courtroom. A model of decision-making within the field of Communication, Sensemaking offers litigators and researchers a popular model that accounts for the role of communication in the decision-making process.15 Where the strategic actor model and rational choice theory claim that humans approach solutions to problems in relatively balanced systematic manner, Sensemaking suggests that humans employ a variety of processes to reduce the uncertainty of an environment and information due to conflicting, excessive, ambiguous, or undesirable information. Humans rely on their background and prior experience to process information in a manner that helps them resolve the issue before them. Sensemakers attain resolutions with 1.) prior cognitive commitments that proved successful in past experiences, 2.) communication that generates consideration and evaluation, 3.) narrowing consideration of alternatives through underlying or overt preferences, and 4.) the elimination of competing alternatives that conflict with preferred outcomes. Humans rely on this combination of cognitive and social mechanisms to manage environmental uncertainty, often created by information overload and multiple paths of resolution, a common situation within the courtroom. Where the strategic actor articulates universal human behavior, Sensemaking subsumes a wide range of human behavior within a specific circumstance, environmental uncertainty, and proposes that in order to understand how humans "make sense" of the world, we should focus on humans' selective construction of a solution. As a human process, sensemaking, either deliberate or unintentional, emphasizes the way in which communication enables people to frame problems and reach solutions within uncertain situations, proving an ideal model for understanding courtroom communication.16
To further connect Sensemaking to the Courtroom, the trial courtroom offers an exceedingly difficult environment for jurors to understand legal issues, mirroring the environmental uncertainty found surrounding sensemakers (unfamiliar terms, confusing legal concepts, proscribed constrained obligations, information management, sustained attention, and desired resolution attainment). Although for separate reasons, Supreme Court justices also face environmental uncertainty through national expectations, state, federal, and international laws, constitutional constraints, competing opinions from briefs, oral arguments, amicus curiae, fellow justices, and clerks. Both jurors and justices face a situation without a "right" answer, but rather where reasonable resolutions reside, and where communication in either written or verbal form, proves essential to decision-making. Justices and jurors mirror a substantial number of Sensemaking qualities, but for purposes of brevity this article addresses three primary areas: prior commitments, information presentation, and interpretation.17
Commitments provide the primary foundation through which humans make decisions within environmental uncertainty because they provide decision-makers with markers in a directionless landscape. Previous commitments or values will cause individuals to limit potential resolutions to those which appeal to their commitments. Instead of humans weighing and evaluating all options, people "make sense of the things by seeing a world on which they already imposed what they believe."18 When presented with a problem, humans rely on these commitments, "to set the boundaries of understanding from which we may determine how to correct errors or flaws."19 However, this problem solving method can be unpredictable because its solution follows from our own personal preconceptions, rather than a consideration of potential possibilities. Even more directly related to our preconceptions, we may first determine a solution or explanation to a problem and then construct a narrative to make sense of how a variable error caused the problem. Juries often reach a decision through this process by starting with a verdict, "and then render that outcome sensible by constructing a plausible story."20 Any court case, but in particular intellectual property, medical malpractice, product liability, and forensic accounting cases can prove exceedingly difficult for jurors, not only because of the unfamiliar environment and technical nature of the topic, but also due to the shifting burdens of proof, making these cases ideal sites for sensemaking behavior. The Supreme Court hears very few of the above mentioned cases, but they often hear cases with significant national social and governmental repercussions. Citizens, states, governments, and nations may all present their arguments to the justices who must find a path of resolution among the howling voices. The justices, unlike jurors, have developed voting patterns reflective of personally individual legal philosophies. Court watchers often crudely split the bench between liberal and conservative justices, and this division can be useful in anticipating a justices' vote, but their philosophy likely draws from underlying personal values that shape their interpretation of laws and the constitution. Although espousing judicial impartiality, justices, like jurors, cannot divorce themselves of their prior experience because it provides the foundation through which they make sense of the world and eventually come to a decision in a Supreme Court case.21
Because commitments play a prominent role in humans' process of information filtering and eventual decision-making, litigators must scrutinize jurors' backgrounds through supplemental juror questionnaires, seat jurors with advantageous commitments, and present their arguments in such a manner to appeal to jurors' backgrounds. Simple as the process sounds, few attorneys emphasize all three. Trial consultants significant experience with large numbers of jurors can assist counsel in understanding the influence a juror's commitments may have on his or her view of the case. Engaging in research that reveals jurors' reliance on personal commitments, trial consultants have often observed mock jurors drawing upon their experiences and value systems to make sense of a complex case. In a recent research project, one mock juror relied on his background as a motorcycle mechanic to explain the difference in technological products by comparing the products to car engines. Using Sensemaking, the juror developed his own experiential analogy to frame the problem in a manner that made sense to him. The juror advanced this analogy because counsel had not provided jurors with a clear analogy from which they could discern differences between the technological products. In this instance, the juror undermined the attorney's arguments with a simple experiential analogy that generated support from other jurors because it provided a framework of understanding that the attorney had not. Jurors' backgrounds and commitments play a clear role in their evaluation of information, but the communication process through a litigators' presentation should foresee sensemaking and attempt to lead jurors to clear paths of resolution.
Commitments clearly influence jurors' understanding of a case; however, litigators must craft their presentations to address jurors' favorable and unfavorable commitments. Top Supreme Court advocates are part entertainer and part advocate, crafting the ability to both maintain the justices' attentions and advance a well crafted argument that speaks to justices' commitments. The Justices, after all, are a tough audience. Playing to justices or jurors, as a performer plays to the audience, does not just involve maintaining attention, but also requires a concern to prevent information overload. Too often litigators direct little attention to their presentation skills not realizing that skillful presentation and explanation of information ensures juror understanding. Successful communication and message retention require eye contact, voice intonation, physical movement in the courtroom (if possible), and visual aids that remind jurors of the primary points within the argument. Trial lawyers should employ communication strategies that reinforce both visual and audio learners. Without providing jurors with dynamic presentations, or orally walking jurors through arguments step by step without a visual checklist, counsel risks empowering jurors to make sense of the case in their own manner, often by reverting to underlying commitments that may jeopardize the case. In one previous mock juror deliberation, where the defense team had not constructed visual checklists for jurors, jurors confused the burden requirements for infringement and invalidity. In this instance, jurors ignored the Court's written instructions and instead tried to recall the verbal distinctions between the categories, arriving at, to that side's detriment, a less than accurate understanding. Although not a fail-safe, a visual checklist would have likely enabled a more accurate recall process. Additionally, litigators should embrace the role of teacher by providing jurors with strategies to employ in deliberations by way of analogies, narrative frame reductions, or damage discussions. Litigators' presentations should be designed to both communicate clear concepts as well as solve the problem for jurors by offering reasonable resolutions to enable a systematic approach to the legal issues,, preventing jurors from enacting sensemaking. A closing argument should provide jurors with a clear path to resolution, and if litigators have practiced messaging within a specific closing, he or she should not be thrown off path by a litany of arguments from the opposition. Losing sight of your message and strategy at closing could result in a disorganized and flustered delivery that causes jurors to grow suspicious of your case at a time when they should be most confident. When jurors enter deliberations they should have a clear understanding of your case and proposed path toward resolution.
Sensemaking places a distinct emphasis on the communication process within group discussion because group communication provides the landscape where issues and ideas come to life, are rejected, or even ignored, thereby shaping jurors' consideration of potential resolutions. Commitments and presentations play a prominent role in how individuals evaluate information, but group discussion leaders largely control the interpretation of issues and the eventual resolution of the case. An experienced Supreme Court advocate will tailor their arguments to specific justices whom they believe will advance their point in conference. Specific justices also tend to dominate discussions during oral arguments controlling what issues the justices and advocates explore. Like the justices, observing mock jurors deliberate over complex issues also provides a fascinating window into the communicative process and the role of leaders. Because jurors have been confused by difficult or poor attorney presentations, they enter deliberations with a heavy sense of uncertainty, often relying upon their personal commitments or fellow jurors for a more clear understanding of the issues. Generally, the most confident and assertive individual will persuade the group of his or her position, primarily through the confidence they portray in the understanding of the case, which in turn makes this type of leader either the most advantageous or dangerous individual on the jury because of their capability to swing the group. At times it is painful to observe leaders bullying other jurors or gathering a majority of group support and then individually grinding down opposing jurors. Typically, the leader with a handful of other jurors will have oppositional members one by one explain their opposing positions and then the majority begins asserting its barrage of challenges, creating a pressure-ridden environment that causes most jurors to yield. One mock juror serving as the group's leader and foreperson intentionally left out language in the Court's charge when reading aloud for the group and misconstrued other charges to garner group support. In this instance the leader could have singlehandedly subverted the judicial process in an actual deliberation. Litigators must be attuned to the role of leaders, considering both a person's background as well as his or her personality, and ideally should be confident in the leader's support. Gambling on a leader's support can result in a costly mistake. Here again, a skilled trial consultant can be invaluable in assisting counsel with the identification of leaders. Leaders can be young, old, male, and female and relying on conventional stereotypes may lead to trouble in the deliberation room.
Not only do leaders control a group's consideration of issues, but they may also influence the depth at which jurors support a position. Within Sensemaking, group interpretation of issues through deliberations results in the physical act of speaking that in turns generates greater adherence to concepts. In these instances, generative communication literally generates not only ideas, but also adherence to those ideas. The physical act of speaking plays a key role in the sensemaking process, because speech occupies an important role in clarifying, ordering, and crystallizing human thought as humans alter thoughts in accordance with the reactions of others or with the speaker's own commitments and beliefs. Anyone who has put thoughts on paper knows of the often shifting manner in which words and ideas are ordered, rarely does the first draft remain untouched. Famous writers John Updike and Daniel Boorstin have reflected on the importance writing plays in a human's thought process. Updike described writing as a process that "educates the writer as it goes along,"22 and Boorstin made a similar comment noting that "I write to discover what I believe."23 These writers' insights reflect the generative discovery process humans often experience when writing. U.S. Circuit Judge Frank Coffin explains that in legal decisions writing reveals "what's wrong with the act of thinking."24 The process of writing relates directly to the process of speech as humans use the communication process to refine, revise, and structure their thoughts. Like writing, anyone who has practiced the delivery of a public speech may also realize the shifting nature of their speech as they begin to refine, revise, and structure their material. As jurors or justices wade through complexity and struggle with uncertain resolutions, the generative communicative interactions can shape an individual's and the group's cognitive consideration and subsequent evaluation of a case. Communication either within the Supreme Court or juror deliberation rooms cognitively influences human understanding of a case.
Shared human qualities link Supreme Court justices and citizen jurors. The behavior of both groups can be observed through communicative interactions in oral arguments or mock deliberations. Both justices and jurors regularly display sensemaking behavior during cases with high levels of uncertain resolutions, but justices and jurors should avoid sensemaking behavior because the process causes humans to overlook potential paths of resolution by "shortcutting" to an individual's personal preferences and bypassing other reasonable options. Because humans, through sensemaking, impose their beliefs upon the situation rather than exploring the situation to determine reasonable solutions, humans "don't see through concepts we see with them, and are sometimes blinded by them."25 Humans' commitments and prior experience enable us to understand and process information in a manner that makes sense to us, and yet these maps may also cause us to overlook potential solutions. Although the justices may be indifferent to correcting their behavior, litigators have a variety of techniques that could prevent jurors from enacting sensemaking. Sensemaking's danger lies in humans' unpredictable behavior and the more a litigator can quell the sensemaking process the more influence they will hold in the deliberation room. Ironic as it sounds, litigators should ensure that jurors do not make sense of the situation by way of sensemaking, but rather through a careful consideration of issues and solutions that result from an attorney's clarifying communication.
Ryan Malphurs, Ph.D., is an Associate Litigation Consultant for Tara Trask and Associates. Ryan's background in Communication and research at the Supreme Court enables him to offer general trial consulting services as well as assistance in the construction and delivery of appellate arguments.
1The action of sensemaking is a common everyday process and can be distinguished from the formalized conception of the theory of Sensemaking. In an attempt to distinguish between theory and process, I have capitalized Sensemaking when referring to the specific theory, and left sensemaking in lower case when addressing the everyday process.
2The strategic actor model varies with each scientist who employs it, reflecting a process of sensemaking rather than rigid inquiry. For other uses of the strategic actor model in judicial inquiry see Lee Epstein and Jack Knight, The Choice Justices Make (Washington DC: Congressional Quarterly Press, 1998). William N. Eskridge, "Reneging on History? Playing the Court/Congress/President Civil Rights Game," California Law Review 79 (1991): 613-84. William N. Eskridge, "Overriding the Supreme Court Statutory Interpretation Decisions," Yale Law Journal 101 (1991): 331-417. John Ferejohn and Barry Weingast, "Limitation of Statutes: Strategic Statutory Interpretation," Georgetown Law Review 80 (1992): 565-587. Raphael Gely and Pablo T. Spiller, "A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases," Journal of Law, Economics, and Organizations 6 (1990): 263-300. Forrest Maltzman, James F Spriggs, and Paul J. Wahlbeck, Crafting Law on the Supreme Court: the Collegial Game (New York: Cambridge UP, 2000).
3Paul K. MacDonald, "Useful Fiction or Miracle Maker: the Competing Epistemelogical Foundations of Rational Choice Theory," American Political Science Review 97.4 (2003): 551.
4Other scholars have expanded the strategic actor model to include the "bounded rationality model" "power and politics model," and the "Garbage Can model." For a more extensive discussion of connections to the rational actor model see Kathleen M Eisenhardt, "Strategic Decision and All that Jazz," Business Strategy Review 8.3 (1997): 1-3.
5Johnson, Oral Arguments (2005): 5.
6Johnson, Oral Arguments (2005): 24.
7For a more extensive discussion see ch. 2 in Johnson, Oral Arguments (2005).
8For commentary on the influence of Johnson's study see book reviews by McGuire, Kevin T., "Oral Arguments . . ." Law and Politics Book Review 15.2 (2005): 107-109. and Barbara Palmer, "Oral Arguments and Decision Making on the United States Supreme Court" Justice System Journal Vol. 26 (2005): 245.
9See among others Kahneman, Daniel, Paul Slovic, and Amos Tversky. (Ed) Judgments Under Certainty: Heuristics and Bias (Boston: Cambridge UP, 1982). Kahneman, Daniel and Amos Tversky. Choices, Values, and Frames (Cambridge: Cambridge UP, 2002).
10Briefly, the theory of Sensemaking suggests, in a complex situation where multiple outcomes are possible, humans seek to simplify their decision-making process by eliminating variables which conflict with their personal life experiences.
11On the influence and widespread use of Sensemaking see Dennis Gioia and Kumar Chittipeddi, "Sensemaking and Sensegiving in Strategic Change Initiation," Strategic Management Journal 12 433-448; Maryl Louis, "Surprise and Sensemaking: What newcomers experience in entering unfamiliar organizational settings," Administrative Science Quarterly 25 226-251; Maryl Louis and Robert Sutton, "Switching Cognitive Gears: from habits of mind to active thinking," Human Relations 44 55-76; William Starbuck and Frances Milliken, "Executives personal filters: What they notice and how they make sense," The Executive Effect. Donald Hambrick (ed). (Greenwhich CY: JAI 1998); Karl Weick, Making Sense of the Organization (Malden, MA: Blackwell 2001); Karl Weick, Sensemaking in Organizations (Thousand Oaks, CA: Sage 1995).
12For a discussion of further limitations of the strategic actor model see Segal, Jeffrey and Harold Spaeth. The Supreme Court and the Attitudinal Model Revisited. (Cambridge: Cambridge UP, 2002): 312-320.
13Johnson fails to consider the rhetorical nature of a justice asking questions or making statements to influence his or her colleagues. He also ignores the tone of justices' statements and questions which may reveal more about a statement's purpose than any other quality. Johnson's study also fails to understand that each case presents unique situations and scenarios. Indeed, the Supreme Court rarely grants certiorari on a topic they have already ruled, and while cases may fall into similar legal categories (death penalty, abortion, freedom of speech, habeas corpus, etc …) each case often presents unique circumstances that evoke different interactional responses among justices.
14Research for this article involved observation of nearly fifty Supreme Court oral arguments and hundreds of observation hours of deliberation groups.
15For a list of recent studies see Ruth Blatt, Marlys Christianson, and Kathleen Sutcliffe, "A Sensemaking Lens on Reliability," Journal of Organizational Behavior 27.7 (2006): 491-515. Angelique Du Toit, "Making Sense Through Coaching," Journal of Management Development 26.3 (2007): 282-291. David Henningsen, Mary Lynn Henningsen, and Jennifer Eden, "Examining the Symptoms of Group Think Retrospective Sensemaking," Small Group Research 37.1 (2006): 36-64. Quinetta Roberson, "Justice in Teams: The Activation and Role of Sensemaking in the Emergence of Justiec Climates," Organizational Behavior and Human Decision Processes 100.2 (2006): 177-192. Sarah Tracy, Karen Myers, and Scott Clifton, "Cracking Jokes and Crafting Selves: Sensemaking and Identity Management among Human Service Worker," Communication Monographs 73.3 (2006): 491-515. Piers Myers, "Sexed up Intelligence or irresponsible reporting? The interplay of virtual communication and emotion in dispute sensemaking." Human Relations 60.4 (2007): 609-636. Victoria Uren, Simon Shum, and Michelle Bachler, "Sensemaking tools for Understanding Research Literature: Design, Implementation, and User Evaluation," Interactional Journal of Human-Computer Studies 64.5 (2006): 420-445.
16Sensemaking, as a theory of decision-making, has been widely employed by scholars across a variety of fields, but Karl Weick's work extends across the fields of Communication, Psychology, and Business management studies have contributed to the significant diversity by which scholars adopt and use his theory of Sensemaking.
17For a lengthy discussion of Sensemaking within Supreme Court oral arguments see Ryan Malphurs, "Making Sense of 'Bong Hits 4 Jesus': A Study of Rhetorical Discursive Bias in Morse v. Frederick." J. ALWD 7, 2010.
18Weick, Sensemaking in Organizations, (1995): 15.
19Weick, Making Sense of the Organization, (2001): 9.
20Weick, Sensemaking in Organizations, (1995): 11.
21This is one reason why Court watchers have raised the issue, with Justice Stevens' departure, of losing a Protestant justice on the bench. A protestant justice can provide personal insight in a manner similar to Justice Ginsburg informing her male colleagues of a female perspective. See Joan Biskupic, "Ginsburg: Court Needs Another Woman," USAToday.com 10/5/09.
22See Remarks from Midland College's "Distinguished Lecture Series," http://www.midlandcollegefoundation.org/news/davidson/updike.php
23See Robert H. Frank. "Students Discover Economics in its Natural State," www.NYTimes.com, 9/29/05.
24Frank M. Coffin, The Ways of a Judge: Views from the Federal Appellate Bench, (New York: Houghton Mifflin, 1980): 57.
25Karl Weick and Kathleen Sutcliffe, "Mindfulness and the Quality of Organizational Attention," Organization Science 17.4, 518.