Taylor C. Young 2013-12-27 11:27:52
Is There An Invisible Gorilla in Your Appeal? Inattentional Blindness: The Invisible Gorilla Phenomenon There is a well-known psychology experiment that tests a phenomenon known as “inattentional blindness.” Participants watch a video of six basketball players (three dressed in white and three dressed in black) passing basketballs to each other as they circle around the floor. The viewers are tasked with counting how many passes the white team makes during the 22 second basketball sequence. It takes some concentration, but most viewers are up to the task and correctly determine that the white team makes 15 passes during the video. Many viewers, however, fail to notice that halfway through the scene a woman wearing a gorilla costume slowly walks into the circle of players, turns to the camera, beats her chest, and then slowly exits the other side. Even though the gorilla is in the frame for a full 10 seconds, half of the people who watch the video fail to see her at all. For these people, the gorilla might as well be invisible. To watch the original video, visit our blog at www.myappellate.com. Would You Notice a Gorilla in Your Appeal? Most of us would confidently predict that a person in a gorilla suit strolling through a scene we’re intensely concentrating on could not possibly escape our notice. But, the experiment demonstrates that at least half of us would be wrong. Likewise, many litigators believe they will readily spot the key issues in cases heading up on appeal. But experience teaches that appeals often have their own invisible gorillas. Indeed, it is not uncommon for appellate judges to raise fundamental questions at oral argument that have been inadequately briefed or completely overlooked. It can be quite startling for a litigator when an appellate judge points out the gorilla in his case. And when that gorilla means the difference between success and failure, he may have difficulty explaining to the client why he failed to spot what was readily apparent to the appellate court. A Problem for Experienced Litigators? It is one thing for 50 percent of people to miss the occurrence of an unexpected event while engaging in the unfamiliar task of counting basketball passes. It is quite another for experienced litigators, who have spent months and years on their cases, to miss salient legal issues, no matter how singular those issues may be. Such litigators are well-trained. They’re accustomed to quickly sift through facts, identify key elements, and make critical legal distinctions. They’re experts acting in their areas of expertise. It turns out that experts are not equally likely to suffer from inattentional blindness as non-experts. They are more so. A recent experiment asked radiologists to examine lung scans for cancerous nodules—a task with which they are not only intimately familiar, but experts at. On one of the slides, the experimenters superimposed an image of a man in a gorilla suit shaking his fist. Although the gorilla was significantly larger than the average nodule, a staggering 83 percent of the radiologists did not see it. And, remarkably, eye tracking revealed that the majority of those who missed the gorilla had looked directly at it. Given these results, there is little reason to believe that familiarity with a case and substantive expertise immunizes a litigator from inattentional blindness. Avoiding Invisible Gorillas On Appeal Half the battle in avoiding inattentional blindness is knowing what you’re looking for. Standards of review, burdens of proof, and preservation of error are the stock-in-trade for appellate lawyers. We pay attention to the development of sometimes nuanced distinctions in these areas and know what is required to present issues appropriately in the appellate courts. We know these issues can be dispositive of the case on appeal, and, thus, spot them as potential gorillas in advance. The other half the battle is not knowing what you’re looking for. Because appellate lawyers typically handle cases in a wide range of substantive disciplines, we may be less subject to prevailing notions among substantive experts about whether and how certain authorities should be interpreted, applied, and honored. Sometimes, things that everybody in a practice area knows turn out to be invisible gorillas when presented to an appellate court. Appellate judges are generalists too. Because they don’t necessarily assume what everybody else assumes, they are far more likely to see a gorilla when it’s actually there. As we’ve seen, predicting whether you will be able to spot invisible gorillas in your case on appeal turns out to be tricky. If the case matters, we advise consulting with an experienced appellate lawyer to help you see what you might be missing. Taylor C. Young is an AV® Preeminent™ Peer Review Rated appellate lawyer and co-founder of Mandel Young, a Phoenix-based appellate boutique. His firm’s mission is to level the litigation playing field by providing small-to-mid size law firms, in-house legal departments, and others ready access to top-notch appellate counsel when they need it most. Taylor handles appeals in a wide range of substantive areas, including complex commercial disputes, torts, and family law. He regularly teaches, speaks, and writes on appellate topics. His musings can be found on Mandel Young’s appellate blog – www.myappellate. com and at www.mandelyoung.com.
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