Is Technology Changing Our Brains? Jurors Go Cold Turkey on Cell Phones

Hon. Mark A. Drummond (Ret.)

“The year was 2081, and everybody was finally equal. They weren’t only equal before God and the law. They were equal every which way. Nobody was smarter than anybody else. Nobody was better looking than anybody else. Nobody was stronger or quicker than anybody else. All this equality was due to the 211 th , 212 th , and 213 th Amendments to the Constitution, and to the unceasing vigilance of agents of the United States Handicapper General.”

And so begins Kurt Vonnegut’s short story, Harrison Bergeron . The story opens with George and Hazel (husband and wife) watching a ballet on television. However, the ballerinas wear weights (so they are not too graceful) and masks (so they are not too beautiful).

Vonnegut then describes the couple: “Hazel had a perfectly average intelligence, which meant she couldn’t think about anything except in short bursts. And George, while his intelligence was way above normal, had a little mental handicap radio in his ear. He was required by law to wear it at all times. It was tuned to a government transmitter. Every twenty seconds or so, the transmitter would send out some sharp noise to keep people like George from taking unfair advantage of their brains.”

After reading Harrison Bergeron , I have three questions:

  1. In 2015, have we reached Vonnegut’s vision of the year 2081—but 66 years early?
  2. Have we self-inflicted Vonnegut’s vision of repeated interruptions by our own addiction to technology?
  3. If so, what difference does this make to us as advocates and judges?

Research shows that, on average, people check their cell phones 150 times per day. That average goes up dramatically the younger you are. The average cell phone owner uses their phone 3 hours and 16 minutes every day. These statistics are just for cell phone use alone. They do not include those people who sit at a computer all day receiving emails and instant messaging.

So, what happens when we take people out of the real world and put them in a courtroom without access to their phones? In the real world they would, on average, be checking their phone every 6 ½ minutes. What happens when a person is forced to go cold turkey from using technology?

Let’s look at some studies. Many studies have been conducted on depriving college students of their cell phones. These are our next generation of jurors. The students reported symptoms similar to those of addicts trying to quit smoking or drugs. The condition now has a name: information deprivation disorder.

Ask yourself some questions. Is it easier or harder for you to concentrate on reading a brief or a case than it was 10 years ago? Have you ever gotten into a car to go to a movie and told your companion that you needed to go back inside to grab your cell phone. Why? You’re going to a movie!

Moreover, even if we take cell phones away from jurors, the mere thought of those text messages piling up in the jury room or in their car outside the courthouse can be just as distracting.

A researcher wrote, “The problem is that just because a student’s technology is ‘out of sight’ it is not ‘out of mind.’ For example, [one study] found no neurological differences between externally driven task switching (e.g., responding to a text message beep) and internally driven switches (e.g., thinking about a text message).”

Brain scientists have known for years that our brains are constantly changing. The brain adapts and finds new pathways when the brain is damaged or when the person learns a new skill, such as a new language or playing the piano. Our brains also change based on whether the information received is primarily verbal or visual and how many times the information being received is interrupted.

Studies have shown that when a person is interrupted from doing a task, the time it takes to get back on task ranges from 15 to 25 minutes. People are constantly being distracted by information technology. Moreover, the distraction is usually preceded by an auditory “bing!” from their device.

In the real world, information is usually chopped into bits (texts and tweets); is given at random, unpredictable intervals; and is visual. In the courtroom, the information is more linear. It is continuous and flowing, and it is mostly verbal. This is a big shift for the brain.

That’s the bad news. Now, here’s the good news. When people are told about the phenomenon of being interrupted and the effect those interruptions have on concentration, they are able to adapt and improve their performance. So, how do we tell them? How do we address this issue to counteract information deprivation disorder in the courtroom? I offer three suggestions: First, address it head-on. Second, see if the judge will let the juror ask questions. Third, do what great trial lawyers have done for years—that is, both show and tell the jury about your case and, if you have to rely totally on verbal information, become a master at delivering that information by chunking it.

Let’s say you have a three-week trial looming involving forensic accounting or gene sequencing or thermodynamics. There are three experts on each side. As you know, under the local rule, no cell phones are allowed in the courthouse. Address the elephant in the room head-on.

Ask questions such as, “Folks, we estimate this will take about three weeks. It will involve a lot of science. We know you cannot bring your cell phones into the courthouse and the judge has already told you that you cannot use your phone to do independent research. So, will leaving your cell phone in your car be so much of a distraction for any of you that it would be hard for you to listen to the evidence in this case?”
In my opinion, this accomplishes three things. First, some jurors may be honest enough to admit that it would cause a problem. They are probably the ones who post more than 10 times a day, every day, such crucial information as, “The line is sooooo long at Starbucks this morning! (sad emoticon).” You must then decide whether the other attributes of that juror outweigh the juror’s concern about the world not knowing how long the line is at the local Starbucks.

Second, once you talk about the elephant in the room, the elephant becomes smaller, or may even disappear. The brain scientists tell us that when people are alerted to the phenomenon, they are better able to handle it.

Third, even if the cell phone-addicted juror does not come forward, fellow jurors may alert the court if that juror is either not deliberating in good faith or directly violates a court rule and brings his or her cell phone in the jury room. Judges have the option of removing jurors for misconduct and putting in an alternate juror.

The next thing to do is to propose to the court that jurors be allowed to submit questions. The ancient Chinese proverb says, “Tell me and I’ll forget; show me and I may remember; involve me and I’ll understand.” This may turn passive jurors who are sitting there thinking about all the texts they are not reading or all of the events they are not posting into more active, listening jurors. Peer dynamics can be powerful, especially if others are submitting questions.

Finally, how can we make the information that flows in court more like the information people are used to in the real world? Fortunately, great trial lawyers have used these techniques for years. They show as well as tell the jury about their case, and they are masters at delivering verbal information

Brain scientists tell us that people remember 70-80 percent of what they see and hear and only about 10-15 percent of what they just hear. Great trial lawyers show their cases to their juries. A picture truly is worth a thousand words.
If the scene is important, a picture is introduced early so that the witness can show the jury the scene. If dates are important, the witness doesn’t merely regurgitate when things happened; a diagram or flow chart is prepared and is used with the witness or maybe as early as the opening statement. great trial attorneys are always asking, “I want them to hear this information, but how can I also show it?”
So, what if all you have are words? Listen to the Rev. Martin Luther King Jr. deliver a speech. Listen to David Boies argue or make an announcement at a press conference. They are masters of pausing and delivering discrete, meaningful chunks of information. Kind of like a good tweet.


Kurt Vonnegut Jr., Harrison Bergeron (1961).

Larry D. Rosen, Alex F. Lim, L. Mark Carrier & Nancy A. Cheever, “An Empirical Examination of the Educational Impact of Text Message-Induced Task Switching in the Classroom: Educational Implications and Strategies to Enhance Learning,” Psicologia Educativa, Vol. 17, No. 2, pp. 163-177 (2011).

Bob Sullivan & Hugh Thompson, “Brain, Interrupted,” New York Times (May 3, 2013).

Richard Gray, “Facebook generation suffer information withdrawal syndrome,” The Telegraph (Jan. 2, 2011).

Mark A. Drummond, “How about a Free Shadow Jury? Inside the Juror’s Mind,” Litigation News, Vol. 38, No. 2, at 16 (Winter 2013), available at

John R. Stegner, “Of Course Jurors Should Ask Questions: Lessons Learned from 16 Years on the Trial Bench,” Litigation News, Vol. 38, No. 4, at 20 (Summer 2013), available at

[Is Technology Changing Our Brains?: Jurors Go Cold Turkey on Cell Phones. Originally published in Litigation News, 40:3 (Spring 2015). Copyright © 2015, American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.]


This piece previously appeared in our August newsletter.