Attention Limits Under Load

As it turns out, research shows that our capacity to apply our attention to a difficult task declines with sustained effort. How long we can go varies from person to person, and we can improve with practice, but we all have our limits.

A useful analogy is to think of attention and effort like carrying a bag of groceries. Some people can carry more, and others less, but for everyone, even a load that started out manageable becomes harder to carry over time. Likewise, when we ask people to apply their attention and effort to legal information for too long, their performance starts to deteriorate. They can miss steps, overlook details, or give up on a task altogether.

So when we design legal information, we should not assume that people apply consistent focus at the same rate over a long period of time. Instead, we should expect them to pause, take breaks, and come back later.

Re-entry Design

Re-entry Design means structuring information so people can pause, lose focus, and return without having to start over mentally. Contrast this with Linear Design, which presumes a person will begin at the start of a process and continue uninterrupted through the end.

There are many ways to design for Re-entry, but the most important principle is to group related information together. Information might be related because it is associated in real life, like grouping property categories in a divorce matter. But it might also be related because a person must rely on that information to complete a later task.

In that same divorce matter, if we explain the difference between community and separate property in the middle of early instructions, but a user needs to apply that concept in their petition ten pages later, that related information is not really grouped together. Because of our Working Memory Limits, we cannot expect users to carry that information forward, especially if they are interrupted. From a Re-entry Design standpoint, we might want to reconsider our organization.

Re-entry Design applies both to concepts and to visual cues that help a person find their place when they step away and come back. Clear section headers and a predictable visual structure also help people find, recognize, and reorient to that information quickly.

Legal Information Rarely Stands Alone

How much we need to focus on Re-entry Design depends on how long we need a person to focus their attention. However, even short documents rarely stand alone. Often, they are part of larger legal processes that unfolds over days, weeks, or months. Something that appears simple enough for Linear Design might really be part of a broader process that also requires some Re-entry thinking.

Not all legal information requires the same kind of thinking, but we often present it as if it does.

In education, there is a well-established framework called Bloom’s Taxonomy. It is often represented as a pyramid, with the simplest cognitive tasks at the bottom and the more complicated tasks at the top. Teachers use Bloom’s Taxonomy to scaffold their lessons – that means starting with simpler ideas that gradually build their way up to more complicated concepts over time.

In the access-to-justice context, we aren’t building long-term lesson plans that roll out over weeks and months, but understanding the difficulty level of the legal information we are working with helps us choose more effective strategies when working with self-represented people.

The complete Bloom’s Taxonomy has six different levels with dozens of cognitive tasks, but for our purposes, we can adapt it by breaking legal information into three Legal Information Tiers:

• Specific Information

• Informed Application

• Generalizable Knowledge

Specific Information

Specific Information refers to concrete details that a self-represented person must know or use to complete a legal task, but do not require analysis or critical thinking. Specific Information includes addresses or filing fees, rules for calculating dates or support payments, or processes to follow to serve another party.

Specific Information is often important information. After all, deadlines and addresses matter, especially if you have a hearing coming up. However, memorizing this information usually provides little or no benefit to a person as long as they can refer back to it later. A response deadline can be calculated and recorded. A legal process can be broken into steps and followed later. Identifying Specific Information and placing it into an easy reference format means that users do not have to expend effort memorizing it for later use.

Informed Application

Next, a self-represented person uses Informed Application when they apply legal information to their own facts and circumstances. This often involves answering questions on a court form, but it also happens when people have to choose whether or not to engage in a legal process in the first place.

There are two parts to Informed Application: First, we have to effectively express legal information accurately and in a way that a self-represented person can understand. Second, we have to prompt that person to make a statement or act while using their own judgment and analysis. Ideally, we should try to express legal information at the exact point where the user needs to act. That way, they do not have to memorize the legal information, but they can still proceed while understanding their decision.

Generalizable Knowledge

Where Informed Application helps a person make a decision at a specific point in time, Generalizable Knowledge addresses broader concepts that can serve a self-represented person throughout the life of their case. For example, consider the following principle:

• Courts want to be fair, and fairness means everyone gets a chance to be heard.

This is an idea that most of us can relate to. If someone told a parent, teacher or boss that we did something wrong, most of us would want a chance to tell our side of the story.

A person might encounter this principle when they begin a divorce process, only to learn they must formally serve the other party to let them know about the case. If that same person later files a motion, they might wonder whether they have to mail a copy of their motion to the other party. Unless there is an emergency of some sort, the other party should get a chance to be heard. The principle suggests the answer is yes.

All Tiers Have their Place

Specific Information, Informed Application and Generalizable Knowledge all have their place when designing content for self-represented people. It is our responsibility to recognize which Legal Information Tier we are working with, and to design accordingly.

When I was a child, someone gave me an electronic game called Simon. It was a round device with four bright panels that lit up and beeped when pressed. The game started simply enough. The first panel would light up and play a note, then two panels, then three, and so on, each round adding to the sequence. The player’s job was to press the buttons and repeat the pattern, which got longer and longer until you inevitably made an error. Then all the panels would flash, and Simon would play a melody that resembled a playground jeer, and you would start all over again.

I hated that game. In truth, I half-suspected an evil clown had infiltrated a toy factory to inflict its menace upon children all over the world. I hated it because there was no way to win, and I inevitably felt stupid. But many years later, when I became a teacher, I learned that Simon had nothing to do with being smart or dumb. Instead, I learned that it exploited a limit that everyone has. Simon was a perfect illustration of a person’s Working Memory Limit.

What is Working Memory?

In short, Working Memory is the number of new bits of information a person can keep in mind at a single time, whether numbers, letters, shapes, words or ideas. In the case of that infernal Simon game, each flashing panel was a piece of information. The chain would extend from one piece to infinity, ending when the person’s working memory limit was reached.

We all have a Working Memory Limit. For most of us, it’s around seven bits of information. (Think of the length of your telephone number without the area code.) Now that we rely less on rote memorization with so much information digitally accessible, some estimates place that limit closer to four. Most of us intuitively understand that there is a limit to what we can remember. If you’ve never played Simon, perhaps you’ve played “memory,” a game where you match pairs of cards turned face down on a table. Perhaps you’ve had trouble remembering a random code or an account password.

And yet, while we all know there is a limit to what we can remember, we also know that we remember far more than four to seven bits of information. We remember the names of dozens of people. We apply scores of traffic rules and recall the plots of entire movies. We speak and write thousands of words and, depending on our work and education, we apply countless historical, numerical and professional concepts. Fortunately for us, Working Memory is not the entire story. So what is going on here? The answer is that information we have committed to memory resides in our Long-Term Memory.

Long-Term Memory

Long-Term Memory is downstream from Working Memory. Whereas Working Memory refers to random bits of information that a person may remember temporarily, Long-Term Memory means that the same information has been transferred to durable storage within our minds.

This distinction is born out of necessity. We have limited cognitive capacity, and the world is a big place that is constantly bombarding us with information. We need to filter extraneous information to reserve our Long-Term Memory for only the most important information.

Here is the challenge – moving information from our Working Memory to our Long-Term Memory is not within our direct control. If it were, we would never forget something that we tried to remember. There are a number of triggers and strategies that can help us move information to our Long-Term Memory, such as repetition, story-telling that invokes strong emotions, or helping people make connections to things they already know. In fact, teachers apply a lot of these strategies when they plan out lessons for students. Yet, no matter how many strategies we employ, it is still difficult to transfer information to our Long-Term Memory.

Working Memory and Self-Represented People

Working Memory matters when we work with self-represented people. Most self-represented people do not have much experience navigating through the legal system. Without that experience and repeated exposure, they tend to rely more on their Working Memory when making choices, which limits them to a few bits of information remembered for a short time.

The good news is that, once we identify this limit, we can start to apply strategies to support people. An easy example is that we can break down long court forms into smaller sections with related information. We’ll discuss more of these strategies in other articles. For now, it is enough to remember that we all have a Working Memory limit.

Key Design Questions:

• Can you think of other games that exploit your Working Memory Limit?

• When might legal information exceed a person’s Working Memory Limit?

• When should we work to transition information from a person’s from Working Memory to their Long-Term Memory?

• Why?

Why does scale thinking matter?

Legal information can be a complicated maze. Identifying the scale at which we are working helps put ourselves in the shoes of self-represented people at each stage of their legal journey.

Identifying Scale Categories

An overview of scale categories.

Applying Design Concepts Across Scale

We will look at our other design concepts working at different scales.

In the time I’ve worked in the access-to-justice space, I’ve never heard someone say, “let’s make this harder.” I think we all have a similar goal in mind – a justice system that people can engage with, that is fair and approachable, and that fundamentally makes sense.

We often use the phrase “plain language,” as a placeholder for “word choice.” We take out old Latin phrases and big words, and that is important, but somehow things still end up being complicated.

I’m a lawyer now, but I started my career as a third-grade teacher. And I keep seeing patterns. There are structures, frameworks, and practices that anyone working with self-represented people can apply. And I think we can also draw on other professions to inform the work we do.

That’s what Beyond Plain Language is about.

I don’t have all the answers, but I know there are principles that can help us make legal information accessible to everyone. I hope you’ll join me to talk about them.

This is an evergreen post that will be updated with links as these resources are posted.

Why Legal Exponentials Matter

Navigating Decision Trees

Building Exponential Relationships

This is an evergreen post that will be updated with links as we finish more content.

Working Memory Limits

Long-Term Memory

Attention as Energy

Bloom’s Taxonomy