September 14, 2023

Carrier: The Case of Faulty Transmission

This is Part III in the series, The World on Trial: Lessons for Litigators from the Second World War. Read Part I, Brevity: A Call for Clearer Thinking here. Read Part II, Infamy: The Opening That Changed World History here.

Just before dawn on May 7, 1942, out in the vast expanse of the Coral Sea, a Dauntless dive bomber lifted off the flight deck of the USS Yorktown and ascended into darkness over the islands of the Louisiade Archipelago. The pilot, Lieutenant John Nielsen, and his rear gunner, LTJG Walter Straub, were on a scouting mission to locate a Japanese naval fleet on its way to invade Port Moresby, on the south coast of New Guinea. If successful, the invasion force would expand Japan’s southern perimeter to over three thousand miles south of Tokyo, within range of Australia. The fleet was also believed to include two crown jewels of Japan’s navy – the aircraft carriers Shokaku and Zuikaku.

Around 8:00 a.m., Nielsen and Straub encountered a Japanese “Jake” on its own scouting mission to find Allied ships. Realizing the threat, they engaged the Jake and eventually shot it down, but not without taking some hits themselves. Soon after, they spotted a group of Japanese ships just off Misima Island and sent a message back to the Yorktown: “Two Cruisers and Four Destroyers.” But because their rear antenna had been shot off, the message didn’t transmit. So, they flew back to within short-wave radio range and sent the message again. Because of a codebook error, however, that message was received as: “Two Carriers and Four Cruisers.”

On the bridge, Admiral Jack Fletcher was elated. The Yorktown and a second carrier, the Lexington — half of the U.S. carrier fleet — had sailed 2,000 miles across the Pacific just for this chance. The war had brought a fundamental shift in naval warfare. No longer was it a matter of battleships lining up broadside to fire upon one another until one of them sank. The range, speed, and accuracy of aircraft had changed that method for good and made aircraft carriers indispensable weapons of war. The Battle of the Coral Sea, as it would come to be known, would be the first naval engagement between ships that were never within sight of each other.

Seizing his chance, Fletcher launched his entire strike force – 93 planes in all – with orders to “get that goddamn carrier!” This, in turn, left his own carriers badly exposed, as anti-aircraft defenses had proven no match for Japanese Vals and Kates. Even worse, the Shokaku and Zuikaku were nowhere near the invasion fleet, having diverted eastward around the Solomon Islands. In fact, they were sitting just a hundred miles away, looking in earnest for the U.S. carriers they suspected were close. The stakes were enormous. The element of surprise was a battle-winning advantage, one that, at this point, could tip the balance of the war itself.

Nielsen and Straub, meanwhile, tried a third time to get their message through. Circling back over the Yorktown, they dropped a beanbag onto the flight deck with a message confirming the sighting and location of the cruisers and destroyers. Seeing that message, Fletcher was shocked, as it failed to mention any carriers. His entire strike force was now headed in the wrong direction, and both of his carriers were sitting ducks. 

When Nielsen landed, Fletcher cornered him and shouted, “young man, do you know what you have done? You have just cost the United States two carriers!”

Imagine that. Not only had Nielsen followed orders, but he had gone above and beyond – shot down an enemy plane, found the enemy fleet, and relayed multiple messages back to his ship. By any measure, he should have been received a hero. Instead, he was held responsible for losing two U.S. fleet carriers and the lives of 5,000 men aboard them. And all because of communication issues that were not even his fault. 

All litigators, at least those who routinely leave the flight deck of their desk, will at some point stand in Nielsen’s shoes. There will be times when you believe you have made a case or argument that could not have been more clear and more compelling, but upon reading a decision or hearing a verdict you realize that it was not just a matter of fair disagreement with your position, but that there were fundamental parts of your message that never got through. Watching a mock jury deliberate is a rare opportunity to see this firsthand: a juror comments about something they think you said (“the defendant had a gun”), when you really said the opposite (“there was no evidence the defendant had a gun”); or, you watch in bewilderment as the key evidence that you considered to be dispositive or exculpatory gets brushed aside or even ignored. 

Litigation is rife with examples where the message one side intended to send is not received, either because the antenna is gone (message not heard), the codebook is flawed (wrong message heard), or the planes are already gone (message heard but too late). Given all the education, training, and preparation litigators go through before they ever step to the podium, how does this happen? In the moments where it matters most, where we have a captive audience ready and eager to hear our side, how does our transmission falter and fail to get through?

Consider three possible explanations:

The Attention Economy. One tempting explanation is that we have become unwitting captives of our own technology. Under this theory, digital devices and social media have proven so irresistible that we no longer have the appetite to digest complex arguments and narratives. A frequently cited source for this is a 2015 Microsoft study claiming that, from 2000 to 2013, the average human attention span shrank from twelve to eight seconds. That is then compared to a goldfish, which somehow manages to pay attention — whatever that means to a fish — on average of nine seconds. 

For litigators, the implication is that the judges and jurors who hear our cases tune out after anything lengthier than a cable-news soundbite, that we have only precious few seconds to make our case before the broadcast signal goes dead, and that we need to dumb things down to the point that it would make sense to a cyprinid.

But this turns out to be its own glaring example of a communication gone terribly wrong. The source for this purported study is a single slide (six of 52) from a PowerPoint deck and citing a website that never mentions goldfish. The rest of the deck then explains the real point, which is that digital-age consumers may be getting better at processing information. Nevertheless, that single slide led to an article in Time and has become infamous for the proposition that the source was trying to disprove, or at least put into context.

This is not to say that litigators shouldn’t be concerned at all about the impacts of modern technology. It would be naïve to suggest that, given the brain’s neuroplasticity, modern media’s rabid competition for our attention has had no impact on how we consume and process information. So while it can be dangerous to oversimplify a case under the assumption that the human mind now lacks sufficient attention to process it, your audience has come to expect a presentation that is crisp, coherent, and curated. 

It can be easy – and deadly – to forget that in the more traditional environment of the courtroom.

Mind Wandering. We have an uncanny tendency to think about what is not happening right in front of us. We are often not even aware that we are unaware. Our minds wander on their own, constantly shifting between external events and internal thoughts. We lose the signal, gain it back, then lose it again. Studies show that we spend nearly half of our waking time contemplating something other than what we are actually experiencing. Think about that. Mind wandering is such a pervasive part of who we are that there are entire disciplines (“mindfulness”) devoted to teaching us how to live in the moment. 

This is a concern for every litigator. We may think we command the absolute attention of the judges and jurors who are deciding our cases. We may even feel a sense of entitlement to it. But this turns out to be pure hubris. 

Worse yet, research has found that in lecture settings, mind wandering increases, and retention decreases, as a function of time. So while you are getting into the heart of your argument, you may in fact be flying away from the carrier, the signal growing weaker and intermittently lost. And this can be especially true for a jury – an audience of strangers in a strange setting, put there involuntarily and removed from their daily routines, without their phones, contemplating what is happening online and in life while they are stuck listening to you.

Even in a courtroom setting, all quiet and free of distraction, your audience’s concentration will naturally wander in and out of focus. They will look to you to keep their attention.

Confirmation Bias. We do not — and cannot — experience life objectively. We are all prone to certain biases, and we are particularly prone to confirmation bias: the tendency to select for information that supports our beliefs and deselect information that doesn’t. The mind is not a radio that receives every broadcast equally. It tends to favor the signals that confirm those received from previous broadcasts. 

This bias can be so powerful that it can keep us from changing our minds even after hearing compelling evidence to the contrary. In fact, such evidence might even cause a “backfire effect,” where a debunked belief is reinforced instead of abandoned. Research even shows that to comprehend an idea, even an absurd one, we must first believe it, and then go through the harder mental work of unbelieving it. This sounds ridiculous, but aren’t you still clinging, if only just a bit, to the false theory about the goldfish?

The reason we have this bias is that it offers a mental shortcut to simplify a complex and ambiguous world. Litigation, though, is that way by design. Jurors and judges receive not one but two transmissions — two competing broadcasts with conflicting versions of the same events. Their job is to hear both and pick the one they find more compelling. From beginning to end – from voir dire through evidence admission through jury instructions — there are rules and means to control for bias. But there is no getting around the fact that those who are deciding your case are doing so through the lens of their own experience.

Even more, as soon as you start speaking, the bias goes to work. Studies show that jurors form an opinion of a case well before all the evidence is presented, and once formed, that opinion tends to stick. Why? Because confirmation bias kicks in and causes the mind to begin looking for evidence that supports an initial impression and ignoring evidence that doesn’t – which, of course, only further calcifies the impression. And this is just one of many heuristics and their resulting biases that can influence the decision process – anchoring, hindsight, availability, and so on.

So much for that brilliant closing argument, which may just end up being a beanbag dropped on the flight deck after all the planes have left.

Fair or not, it is often the case that the communication we intend to send is not the one received, that something happens in transmission that fundamentally changes the thought you meant to send. For this reason, it is not enough to assume that once you transmit your message, your mission is accomplished. Litigators spend their entire careers honing the skills of oral advocacy. But we often spend too much time focused on what to say and not enough on how to be heard. This requires moving beyond a mindset of advocacy towards one of engagement. Because if there is one thing that sets apart the great litigators, it’s that they know how to engage. They know how to get their message received. And that can go a long way towards the real goal: persuasion.

There are, of course, a host of well-worn techniques to help boost your signal. One is to use visual aids. This does not mean larding up PowerPoint slides with bullet points. It means augmenting an oral presentation with compelling photographs, charts, and graphics – both evidentiary and demonstrative – that visually convey the case and its themes. This strengthens reception by improving understanding and retention.

Another is to tell a good story. Yes, I’ve said it before, but the key here is to understand storytelling from the listener’s perspective. Research shows that while a story is told, the listener’s brain activity begins to mirror that of the speaker. Their brains experience a condition called “neural coupling,” whereby cognitive processes in one brain are connected to the other through, yes, a signal transmission. The stronger the connection, the greater the listener’s comprehension, to a point where a listener can even anticipate what a speaker is going to say. 

A good case, conveyed multimodally and told narratively, is a shared experience.

Finally, be open and aware. While the mental circuitry of others is mostly invisible to us, there are often signals coming back indicating whether and how we’re being heard. However faint those signals might be, they can suggest whether we need to fly back towards the carrier and send our message another way. Even a simple pause to capture and refocus attention on a key point can make a difference.

At the same time, litigators must recognize that they have no special immunity to the same cognitive biases that influence jurors. We are just as prone to select for the good evidence, and deselect for the bad, and that renders us less effective at understanding how our case is being received. The failure to see what a case looks like from the opponent’s perspective can be fatal. Don’t wait until trial to find this out. Throughout litigation, encourage and heed candid feedback from a broad and diverse set of perspectives. Listen without judgment.

Because if you do send your entire strike force based on a faulty transmission and lose your carriers in the process, you can’t look around the courtroom for a pilot to blame.




After sending his planes off in the wrong direction and badly exposing both of his carriers, Admiral Fletcher got lucky. He received a new report of a nearby Japanese support force that included a light carrier, the Shoho, and he redirected his planes there. They quickly overwhelmed the Shoho and soon radioed the message, “Scratch one flattop!” It was the first sinking of a Japanese carrier in the war.

The rest of the battle, however, was a rather confused and mixed affair. The Japanese carriers located and sank Fletcher’s support vessels, the USS Sims and Neosho. And the next day, May 8, Japan located the U.S. carriers, attacking and damaging the Lexington beyond repair. At nearly the same time, the U.S. located the Japanese carriers and badly crippled the Shokaku. More importantly, the battle caused Japan to abandon the invasion of Port Moresby, putting an end to Japan’s southern expansion.

Afterwards, much to the delight of their domestic audiences, both sides would construe the facts in their favor and declare themselves the victor. As for his heroic action on the morning of May 7 – for the relentless and resourceful efforts to send his vital message – Lieutenant Nielsen would receive the Navy Cross.


The Battle of the Coral Sea:
Francis Pike, “Hirohito’s War: The Pacific War 1941-1945,” Chapter 13.

Attention Span:
BBC article: 

Mind Wandering:
Matthew A. Killingsworth and Daniel T. Gilbert, “A Wandering Mind Is an Unhappy Mind,” Science, Nov. 12, 2010 (Vol. 330).
James Farley, Evan Risko, and Alan Kingstone, “Everyday Attention and Lecture Retention: The Effects of Time, Fidgeting, and Mind Wandering,” Frontiers in Psychology, Sept. 2013, Vol. 4, Article 619.
Greg J. Stephens, Lauren J. Silbert, and Uri Hasson, “Speaker-listener neural coupling underlies successful communication,” PNAS, June 2010.
Uri Hasson, Asif Ghazanfar, Bruno Galantucci, Simon Garrod, and Christian Keysers, “Brain-to-Brain Coupling: A Mechanism for Creating and Sharing a Social World,” Trends Cogn. Sci., Jan. 2012.

Confirmation Bias:
Daniel Kahneman, “Thinking Fast and Slow” (2011).
Ramond Nickerson, “Confirmation Bias: A Ubiquitous Phenomenon in Many Guises,” Review of General Psychology, 1998, Vol. 2, No. 2, 175-220.
Lee Curley, James Munro, and Itiel Dror, “Cognitive and human factors in legal layperson decision making: Sources of bias in juror decision making,” Medicine, Science and the Law, 2022, Vol. 62(3) 206-215.
Bill Kanasky, Ph.D., “Juror Confirmation Bias: Powerful. Perilous. Preventable,” CSI, 2021, Juror_Confirmation_Bias_CSI_2021.pdf.

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