June 21, 2012

Play It Where It Lies: Throughout Trial, Match the Message to the Mindset

By Dr. Ken Broda-Bahm:


Once I was looking into the purchase of a new car. So I visited the showroom, not with the intent of purchasing that day, but with the more general goal of gathering information. I wasn’t there for two minutes, however, when the salesman hit me with the question, “So, what would I need to do to get you in a new car today?” I wanted to say, “Look, I teach persuasion, so I can name the technique you’re using — in Latin — and today it isn’t going to work.” Instead, I quickly made an excuse to leave and I visited another lot. The problem is that the salesman and I simply weren’t in sync. He was at the stage of wanting to clear away the obstacles and close the deal. I, on the other hand, was still in the investigation stage. 

A parallel situation of being out of sync can affect lawyers in trial. You’ve learned that every moment is precious and first impressions are key, so you’re trying to close the case from the first moments of jury selection. But the jurors aren’t ready for that and their awareness of the lawyer’s early attempts to persuade just lead to suspicion and distrust. Trial lawyers were already pretty close to car salesmen in the average juror’s estimation (sorry), and the appearance of a pushy tactic just serves to make the jurors wary. While lawyers won’t, in the span of a trial, overturn a juror’s skepticism of lawyers or overt persuasion, they can adapt to the mindset of their audience and appreciate the fact that this mindset changes throughout trial. This post looks at some current research looking at “predecisional” and “postdecisional” mindsets and findings that messages are most persuasive when they’re framed to match the mindset that the audience currently holds. Practically, the research suggests that trial lawyers need to exercise patience and “play the ball where it lies” when it comes to jurors.

How Does “Decisional Mindset” Matter?

The research in this case comes from Gergan Nenkov of the Carroll School of Management in Boston. The study (Nenkov, 2012) builds on the concept of decision makers having two broad stages of focus: a predecisional stage where they are making choices among possible actions, and a postdecisional stage where they are looking at ways to support and implement their decisions. Comparing the effects of persuasive messages on experimental participants who have been primed to focus at either the pre- or postdecisional phase, the study concludes that those at a predecisional stage are persuaded more by far-ranging appeals. The researcher calls these “psychologically distant” appeals because they focus on the future more than the present and focus on others rather than oneself. Once in a postdecisional phase, however, the opposite seems to work better, as participants are persuaded by the “psychologically close” appeals based on the present and the self.

Boiling this down to what it means in a trial context, this might be the implication:

  • Before jurors have decided or developed a firm leaning: Focus on the more distant, for example, a future verdict and its effect on the parties.
  • After jurors have decided or developed a firm leaning: Focus on the more immediate, like the jurors’ upcoming deliberations and process.

So, Are Jurors Predecisional or Postdecisional?

That just raises the question of when jurors actually decide the case. It is common to take the idea of first impressions to the extreme by believing that the vast majority of jurors firmly decide the case as early as opening statement, if not jury selection. Not only is the widely-quoted “eighty percent” statistic an urban myth, but the research that has been done (e.g., a poll of 800 jurors conducted by National Law Journal and Lexis in 1993) tends to support the idea that most jurors believe that they’re deciding the case, more appropriately, after the evidence has been presented. So if that is correct, during much of the trial, most jurors will be in a predecisional mode.

Now, it is worth pointing out that this distinction between predecisional and postdecisional might be overly rational or even mechanical. Whatever the phase, there are strongly motivated ways that people selectively gather information well before they’ve consciously reached a decision or even a leaning. Still, the important point is that most jurors, during most trial stages, fancy themselves to be open-minded and at a definite predecisional stage. So that is where lawyers need to meet them.

Match the Mindset At Each Phase

What I’m saying is that trial lawyers should take care to sync their message with their jury’s probable mindset. What I’m not saying is that lawyers should foreswear persuasion at the early stages and deliver an opening that, for example, just informs the jury of your position and previews the main parts of your case. That is nonstrategic and, frankly, boring. But you also shouldn’t become the “preacher” in opening and imagine yourself to be sealing the deal. Instead, the appropriate nuance is found in the recognition that jurors are doing different things at different phases of the trial.

For example:

In Jury Selection: 

Jurors are in an orientation mindset. They’re trying to figure out what this game is about, how the process works, and what their ‘correct’ role is within it.

So you should provide that orientation so jurors have a clear and straightforward understanding of what you are doing and why. Jurors should also understand that the only ‘correct’ answers are those that honestly convey relevant experiences and attitudes.

In Opening Statement: 

Jurors are in a framing mindset. They’re trying to decide what kind of story this is, who the main characters are, who is believable and what the central conflict is.

So you should tell the story and frame the entire preview of evidence in that story framework, emphasizing your theme.

During Evidence: 

Jurors are in a scrutiny mindset. They’re carefully looking at the documents and witnesses to see whose story is most likely true.

So you should maintian an efficient ‘just-the-facts’ focus, highlighting the confirmation of the story (during your case) and the holes and gaps (during their case).

In Closing Argument: 

Jurors are in a closure-seeking mindset. They’re selecting a position and preparing to defend it.

So you should speak not just to convince, but also to arm your supporters for future argument by equipping them to press your strengths and rebut your weaknesses.

This is naturally a broad-brush sketch of where jurors are likely to be at different stages. In the complex life cycle of a trial, there will be events and moments that will change the mindset. The bottom line is that persuaders in the courtroom need to have something that my unsucessful car salesman lacked: rhetorical sensitivity, or an appreciation for the complexities of your audience and a genuine awareness of what motivates them. Without that, you’re just presenting, not persuading.


Other Posts on Audience Adaption: 


Nenkov, G. Y. (2012). Its all in the mindset: Effects of varying psychological distance in persuasive messages. Marketing Letters. DOI: 10.1007/s11002-012-9166-5. 

Photo Credit:  One Tree Hill Studios, Flickr Creative Commons


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