By Dr. Ken Broda-Bahm:
We are used to seeing compassion as an aspect of character, an ethos, or even as a religious belief. But here is another way of looking at it: Compassion is a behavior. And like other behaviors, it can be evoked in some circumstances and inhibited in others. Rather than simply hoping that those who evaluate us will have compassion, new research is showing that it is possible to facilitate or create the conditions for compassion. "Engineered Compassion" may be putting it too strongly, but it isn't too much to say that you can cultivate compassion.
Now, few are able to win a legal case on compassion, at least not if compassion is taken to mean something like sympathy. Jurors and other fact finders are predictably hardened to any appeal that sounds too much like, "oh, my poor client," whether that client is a plaintiff or a defendant. But while empathy alone isn't a reliable strategy, some level of understanding can be critical. Take, for example, the molestation victims who testified against Jerry Sandusky in his recent trial. Stripped of compassion, the response to these witnesses could have been, "They've been the victim of a crime, and the perpetrator is still able to victimize others, so why in the world wouldn't they go immediately to the authorities? When they do talk to the police, why would they make incomplete or even exonerating statements?" The response, because they were ashamed, isn't necessarily the logical response, but add in a little empathy and a little knowledge of how children respond to sexual abuse and the picture comes into focus. Armed with a little compassion, jurors are able to set aside a biased reaction ("victims always and immediately report") and focus instead on the evidence. In this post I take a look at a recent report on Northeastern University Professor David DeSteno's research that appeared in an interesting piece in last week's The New York Times.
The Research: Creating A Compassionate Research Subject
These are the kinds of studies that sound pretty fun to conduct. In one (Condon & DeSteno, 2011), researchers ran participants through a "math test" paying participants based on the number of problems they correctly solved, and then a "taste test" in which participants got to choose an amount of hot sauce to be consumed by another research participant. Unknown to the other participants, one participant called a "confederate" was actually working with the experimentors and cheated in the math study in a way that was obvious to all other participants. Predictably, the other participants punished the cheater by forcing him to consume more hot sause than other non-cheating participants in the second part of the study. However, in another version of the study, the experimentors created an emotional moment to see if that would mitigate the desire for revenge against the cheater. They enlisted another participant secretly working with the experimentors to break into tears, tell the group that her brother had just been diagnosed with a terminal disease, and ask to be excused from the study. Because there was no relationship between the tearful participant and the cheating participant, there is no reason to suspect that any warm feelings of compassion would spill over. But they did. The emotional moment was enough to completely mitigate the revenge effect: The cheating participant received no punishment when the crying participant was part of the study. To explain the finding, the researchers reference the Dalai Lama: "The experience of compassion toward a single individual does shape our actions toward others."
A second study (Valdesolo & DeSteno, 2011) looked not at emotion, but at common exprience. In a study that supposedly focused on music perception, the researchers placed participants in pairs who first completed a part of the study in which they tapped their hands on sensors in response to tones they heard via headphones. Some pairs were set up to be tapping together, while other pairs were out of sync and their taps didn't match. Following that, a second study again introduced cheating, and gave participants the opportunity to either help or not help when their partner had been the victim of the cheating. Now, you might think that if you're close friends with, or from the same home town of your partner, you might be more prone to help them out. But would the simple act of tapping in sync be enough to elicit greater compassion? Yes. According to the researchers, "The results were striking: The simple act of tapping one’s hands in synchrony with another caused our participants to report feeling more similar to their partners and to have greater compassion for their plight: It increased the number of people who helped their partner by 31 percent."
Promoting Compassion for Your Client
Drawing from this research, as well as the more general perspectives on human identification, here are a few ideas to keep in mind in trial and in the run-up to trial.
1. Similarity is the Cornerstone of Compassion
If you are wondering how to generate a little common understanding and compassion for a witness, or for a party, the route to that is not to start pushing emotional buttons (...a tragic injury) or to start resume building (...a solid citizen). It is to emphasize some dimension of similarity between the individual and the fact finder. As long as it is done in a way that is natural and not pandering, a juror may be able to get past seeing them as the "criminal defendant," or as the "corporate representative," to see them as another Mets fan or as someone who also thinks that rents are too high. As Dr. DeSteno explained, "if our minds draw an association between a victim and ourselves — even a relatively trivial one — the compassion we feel for his or her suffering is amplified greatly."
2. And an Honest Emotional Moment Doesn't Hurt
I once worked in a long trial on behalf of a number of business owners that had suffered devestating financial losses. In that trial, arguably the best emotional moment, however, had nothing to do with sympathy over the economic impacts, but were instead elicited when one of our business owners, a younger woman from a small town, was on the stand and realized that the other side's attorneys were about to put her unredacted tax returns - with personal information and social security numbers - on the screen in a courtroom filled with strangers. Obviously and honestly distraught, the woman turned and appealed directly to the judge. From that moment on, the jurors were willing to fight for her and cast a skeptical eye on the motives and character of the lawyers across the aisle. Logically, you might say, "Okay, she is upset about the loss of privacy, but what does that have to do with the veracity of her claim?" But what DeStano's research shows is that compassion spills over. The ability of the jurors to feel for her meant that they were also able to set aside some other biases (e.g., "plaintiffs are always greedy") in order to evaluate her claims.
3. In Your Own Thinking, Humanize Your Adversaries
Some might believe that it is in the nature of a zero-sum situation, like trial, to dehumanize the other side to prevent even a shred of compassion from falling on their shoulders. And it is true that in your own communication at trial, you shouldn't see it as your job to humanize the other side. But in your own thinking leading up to trial, a genuine appreciation of what drives your opponent and an understanding of how they see the world and the case, can not only make you a more strategic advocate against them, but it may also make you a more sensitive negotiator when you are working toward settlement. Lose the compassion, and the other side is just making bad arguments in support of a bad position. Add some compassion, and get a more realistic appreciation of their interests, their strengths, and their weaknesses.
Other Posts on Factfinder Ethics:
- Don't Mistake Sociability for Empathy
- Avoid Condescension and Other Sins of Legal Argument: Know Your 'Second Persona'
- Sympathy for the Devil, but Empathy for Your Judge
- Don't Advocate from a Position of Hate
Condon, P. DeSteno, D. (2011). Compassion For One Reduces Punishment For Another. Journal of Experimental Social Psychology, 47: 698 - 801: http://www.socialemotions.org/page5/files/Condon.DeSteno.2011.pdf
Valdesolo, P. & DeSteno, D. (2011). Synchrony and the Social Tuning of Compassion. Emotion 11:2, 262-266. http://www.socialemotions.org/page5/files/Valdesolo.DeSteno.2011.pdf
Photo Credit: The Fayj, Flickr Creative Commons