By Dr. Ken Broda-Bahm:
Most litigators now understand that their case fares better when it is framed as a story. And everyone knows that a good story always carries a point or a moral. Even information that follows a narrative structure (e.g., I went to a store, then bought broccoli, then returned home) isn't received as a "story" unless it carries a fundamental lesson, message, or moral. That means that morality -- not necessarily in a religious or profound sense, but in the practical sense of a preference for the good over the bad -- is an element in every case story. But litigators, even those who take it to heart to tell a story in their case, aren't always clear on where to find the moral of their story.
We know also that it depends on who you are talking to, and the particular morality that we tie to our case depends on the judge, jury, or arbitrator we are addressing. New social psychology research, however, points to the possibility that there are shared dimensions of morality -- observable factors, that to at least some extent, transcend culture, religion, and political outlook, forming that holy grail of moral philosophy: universal good. Pulling this notion down from the clouds and applying it to your case, this post focuses on how you can increase the meaning and improve the effectiveness of your story by targeting these universal moral elements.
We are Divided by Our "Moral Matrix"
Jonathan Haidt, Professor of Social Psychology at the University of Virginia, has authored a number of books and articles on the nature of public morality, like the The Righteous Mind: Why Good People Are Divided by Politics and Religion due out in March of 2012. His focus has been to look for differences and similarities in moral thinking across groups and cultures (his dissertation was entitled “Moral judgment, affect, and culture, or, is it wrong to eat your dog?”). A central theme in his work is that moral reasoning at the logical level tends to follow more emotionally-based moral judgments (e.g., see Haidt's 2001 article, “The Emotional Dog and its Rational Trail”). In other words, first we "feel" for a particular moral position, then we generate logical arguments in order to support that position.
So where do these "moral feelings" come from? Looking at the world of politics, Dr. Haidt has observed in his research that different political philosophies, particularly in the U.S. in the last decade, tend to be self-sustaining belief systems or "moral matrices," that each “provide a complete, unified, and emotionally compelling worldview, easily justified by observable evidence and nearly impregnable to attack by arguments from outsiders.” That sense, increasingly evident in political life and culture, that liberals and conservatives live in their own separate worlds, can make one cynical on the possibilities for persuasion across groups. That implication can be rather depressing to litigators who find themselves on the wrong side of the mindset of their venue.
We Might Be United By Common Moral Foundations
A closer look into Haidt's work and the work of other social psychologists, however, may carry a brighter message. Focusing on five "moral modules," Haidt and his colleagues have argued that what might appear across cultural or political fences to be distinct moral worlds, are actually differences in emphasis across a common foundation. Put another way, it is different accents rather than different languages.
The common touchstones appear in five different polarities: care/harm, fairness/cheating, loyalty/betrayal, authority/subversion, and sanctity/degradation. Haidt has argued that just as all of the dramatically different cuisines of the world must still appeal to human tongues equipped with the same five taste receptors, even radically different moral matrices must still appeal to these five moral foundations.
Working with his University of Virginia colleagues, Haidt developed a questionnaire that bears out that commonality. For example, drawing from more than two hundred thousand data points, individuals on the political spectrum can be differentiated based on the degree of emphasis placed on these five common foundations.
Implications for Litigators
What does this mean for litigators? One very practical takeaway is to ask how your case story addresses the five moral touchstones. The emphasis among the five may differ depending on your audience, but you will still present a more broadly appealing case if you are addressing all five moral foundations. From the perspective of a corporate defendant, framing the case as an answer to these five questions would be much more complete than asking just, "Did we follow the law?"
Care or Harm: Are You Protecting Us? We've evolved with "attachment systems" that include an ability to feel and dislike pain, and insecurity in both ourselves and others. So the company in this case needs to show that it is offering protection. In its products, its polices, its agreements, and its place in the market, it is helping to keep us secure.
Fairness or Cheating: Are You Just? We have developed a sense of altruism, which includes notions of justice, autonomy, fairness, and rights. The company needs to show that it has used its power in a way that we ourselves would like to believe that we would use our power.
Loyalty or Betrayal: Are You With Us? Based on a long evolutionary history of living in groups, we tend to place a moral priority on membership and belonging. Based on that, the company needs to combat its image as a faceless monolith and translate itself into a group of people who share the same locale, experiences, and values as the fact-finders.
Authority or Subversion: Are You Playing By the Rules? Our social evolution has also included hierarchy to our relationships, creating a natural tendency to look for and defer to authority. In the corporate context, that often means placing a priority on whether the company followed regulations and common industry practices (both the formal and practical "law" of the industry).
Sanctity or Degradation: Do You Have 'Clean Hands?' A great deal of literature today ties our moral evaluations to our feelings of disgust and the framework of "purity" and "contamination." In the legal realm, nothing is more telling of this preference than the "doctrine of unclean hands" as applied to a plaintiff guilty of the same misconduct it alleges against a defendant. From the defendant corporation's perspective, jurors may have a visceral disgust-driven reaction to the company's alleged "greed," and the company will need to replace that motive with something more clean and less disgusting, like competition or progress.
One final piece of advice, illustrated well in Dr. Haidt's excellent address at the 2008 TED conference, is to take time to "step out of your moral matrix" by consciously engaging with people who carry different orientations -- political, cultural, social, and otherwise. You will understand people better, and that, more than anything else, will make you a better persuader.
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- Don't Mistake Sociability for Empathy
Photo Credit: Phil Hawksworth, Flickr Creative Commons