By Dr. Ken Broda-Bahm:
Lessons for litigation sometimes come from unlikely sources. Take the recent explosion of attention to the issue of marriage equality for gays and lesbians, ignited by the President's recent statement of personal support. His evolution of opinion follows an important milestone in public support: The proportion of Americans who agree that same-sex marriages should be recognized by law has now edged barely into the majority. That has led to discussions all over the country. In one such discussion, Fox Host Shepard Smith reminded Rush Limbaugh of the public's level of support for gay marriage, and the radio host snapped in response, "Where has the issue won an election? What state? Tell me where it's happened."
Good question, Rush. (How often does that happen?) So, why would a majority view still fail to win elections? One reason might be that the attitude has only recently crested into a majority, and is of course far from that in many states. But another likely reason has to do with differences in motivation. While gays and lesbians are understandably passionate about the issue, there are probably many heterosexual supporters who agree in principle while being less emphatic or personally involved. Many see it as a critical issue of civil rights, but those who simply have a "why not" attitude aren't marching in the streets. Gay marriage opponents on the other hand believe that they're conserving the bedrock of their culture and faith. Even when in the numerical minority, they may have the ability to outorganize, outspend, and outvote those who are working for marriage rights. As Thomas Leeper writes in a recent Psychology Today article, "the high intensity of a minority’s opinions easily mask the low intensity, but overwhelmingly moderate opinions of most Americans on this issue." The same principle applies in all persuasive contexts including litigation. If you focus only on attitudinal leaning and ignore motivation, you're missing a big part of the picture. This post takes a look at the role of the motivated minority as it applies to legal persuasion.
So What Motivates?
The answer to that question will vary by case and over time. One recent study, however, points to an interesting conclusion with implications for legal argument, particularly closings. Reported in this month's Journal of Personality and Social Psychology, the study (Brinol, McCaslin & Petty, 2012) gave participants the task of generating arguments in favor of an idea and then measured how convinced they became as a result of this task. What the researchers varied was whether the participants believed they were trying to convince themselves or someone else. You might expect that persuasion is self-centered and the task of trying to persuade oneself would lead to more self-persuasion, but the authors found that the opposite is true: People are more persuaded as a result of creating arguments to convince someone else rather than themselves.
Why? Due to motivation. When they believe that the arguments are for themselves, the participants give the exercise less attention and importance, apparently feeling that they already know their own thoughts and won't be swayed. When they think they're working to convince someone else, however, they step up their game, do a better job of coming up with reasons, and as a result do a better job of persuading themselves.
Applying that finding to the deliberation room, it would seem that one of the best ways to convince jurors might be to encourage a frame of mind where the juror imagines herself to be defending your case to other jurors. In the process of preparing to argue, and mentally rehearsing those arguments, the juror becomes more convinced. The research carries an important reminder for lawyers: Focus on how jurors will argue and don't presume motivation. We would like to think that jurors accept their oath and naturally embrace the task of attending to the facts and applying the law. But those actions take work, and in every case, you should be asking yourself, "What would make jurors want to do that work for me and my client? What values, principles, and morals serve as motivators in my case?"
Prepare Your Jurors For Motivated Arguments
A few additional rules of thumb.
1. Don't Try to Create Motivation. In the narrow confines of a case, it helps if you treat motivation a little like energy in the sense that it is "neither created nor destroyed, just changed in form." You probably won't, through facts, evidence, and persuasive appeals, create a new motivator for jurors where there was none before. Instead, you are more likely to succeed by identifying a present motivator and wrapping your case around it. "Personal responsibility" is probably the most common example in litigation. You're unlikely to convince a juror that it is or isn't important, but to one who already feels it is important, you may succeed in convincing them that your side of the case best upholds it.
2. Locate Motivation Starting With Your Pretrial Research. When you run a mock trial, don't just look at your mock jurors' leanings and ultimate verdicts. Instead, look at strength of opinion as well as the behavior of who is willing to argue on your behalf during deliberations. When you are trying to determine what separates the sheep from the goats on your panel, don't just compare those who check the box on one side of the scale with those checking the box on the other. A weak pro-plaintiff juror tends to have about the same effect on deliberations as a weak pro-defense juror, which is to say, not much. The result comes from the advocates and the leaders on the panel. Once you identify them, try to determine what sets them apart, and most importantly, what motivates their arguments.
3. In Closing, Supply Not Just Arguments, But Tools of Argument. I've emphasized before that "you aren't just persuading, you're persuading the persuaders," because verdicts aren't just a tally of individual votes, but are instead the product of group discussion and argument. As a result, closings need to focus on preparing your supporters to argue on your behalf. Based on the recent study we know this emphasis doesn't just prepare your advocates within the jury, it also helps convince them as well. Your emphasis on the tools of argument should inform your entire approach to closings, but there are a few concrete things you should be doing:
- Use rhetorical questions. "How do we know that is true? Here is how we know..." When you ask questions that jurors are likely to have, and then point them to the information that answers it, you are preparing jurors directly for the dialogue that will occur during deliberations.
- Enumerate reasons. Take a position that an advocate for the other side is likely to hold, and then instead of talking generally about why that is wrong, give five or six concrete reasons why it is wrong. Use numbers, as that is a reliable way of encouraging jurors to write in their own notes.
- Make sure jurors can find the exhibits. I recommend always putting the exhibit number prominently on anything that you are showing to the jury. You want them to write it down, remember it, and use that exhibit in order to sway someone who needs to be swayed.
Getting back to marriage equality, there's another way that the President's recent announcement of support can be read: Through the electoral lens, it may be a very strategic way of tapping into the motivations of otherwise disheartened progressives. It isn't so much an argument calculated to change minds, as it is an inducement to transform weak supporters into strong supporters. Elections and deliberations are parallel in that regard: motivation matters.
Other Posts on Group Dynamics:
- Help Jurors Stay Off the Bandwagon
- No Blank Slate (Part 2): In Closing, Treat Your Jurors as Instrumental Arguers
- Remember That Argument Isn't The Most Important Part of Closing
Briñol P, McCaslin MJ, & Petty RE (2012). Self-generated persuasion: Effects of the target and direction of arguments. Journal of personality and social psychology, 102 (5), 925-40 PMID: 22352326