By Dr. Ken Broda-Bahm:
Think beyond the stereotypes. That is what you're used to hearing (and I'm used to saying) about jury selection. But that same need to subvert the stereotypes applies not just to picking panelists, but to persuading as an attorney or an expert witness as well. In each of these situations, some very durable preconceptions are apt to stand between an advocate and a fair hearing. Stereotypes are often an obstacle to persuasion.
It turns out that these barriers can be overcome, and overcoming them can also carry some unexpected benefits. According to a forthcoming study (Goclowska & Crisp, 2012) in the journal Thinking Skills and Creativity, when we're able to set aside stereotypes, we're also more likely to think with greater flexibility, originality, and creativity. Encouraging an audience to set aside a stereotype can lead to them thinking beyond the obvious and the routine of established patterns, and that creativity can be key to getting them to accept an initially difficult message. In this post, I'll take a look at this new study and focus on the broader message of getting past stereotypes for attorneys, expert witnesses, and jurors.
A team of researchers from the United Kingdom wanted to look at the effects of focusing thought on a counter-stereotypical image. It has been established in earlier studies that images that run counter to what we might expect (e.g., a female mechanic) are effective ways to reduce bias and increase tolerance -- not just in context but generally as well. In thinking about why an effect like that would benefit not just female mechanics, but other stereotyped groups as well, the researchers suspected that an unexpected or surprising example discourages the use of easily accessible knowledge leading to an "individuated" analysis that is less susceptible to the kinds of "low effort thinking" (heuristics) that get us through most of our daily choices, but discourage reflection and a fresh perspective.
To determine whether these counter-stereotypical images would have benefits beyond just promoting tolerance, Goclowska and Crisp (2012) first surveyed participants on something called "Personal Need for Structure" (more on that later), then asked them to think of an adjective to describe either a stereotypical (male mechanic) or counter-stereotypical image (female mechanic), and then had participants complete a creativity task (in this case, thinking about the number of ways an empty plastic bottle could be used). Participants were then scored on the number and the originality of the answers. The researchers found that those who thought about the counter-stereotype came up with more and better ideas about the plastic bottle. But interestingly, that effect only worked for those participants reporting a lower "Personal Need for Structure." Those with a higher "PNS" -- meaning those with less tolerance for ambiguity and a greater preference for thinking in hard black-and-white categories -- effectively resisted the effect.
Research along these lines provides a good reminder to advocates in trial: You often need to overcome what your audience expects to hear in order to get them to focus on what they need to hear. If your case requires fresh thinking from your judge, juror, or arbitrator, then to get there you may think about what will open their minds.
Attorneys: Work Against the Popular Image of the "Lawyer"
The stereotype of a lawyer is an aggressive and slick persuader with a limitless bag of rhetorical tricks all aimed at making the worse case appear to be the better. This image suggests an advocate willing to say anything and concede nothing in support of their client. You can consciously work to subvert that stereotype in your own communication by keeping a conversational tone and by saving your "preacher voice" for just a few moments, if any. You can also surprise your audience by admitting to some weaknesses. The key is whether you are helping jurors toward their own judgments or just pushing your own. Ultimately, you have more credibility if jurors see you as someone helping them do their job, rather than as someone who is just selling a particular conclusion.
Experts: Work Against the Popular Image of the "Hired Gun"
We've written before that jurors often have a pretty good idea of what to expect when it comes time for the expert: a tool of the side that did the hiring, and a person willing to tailor their methods and opinions to the side paying the bill. "Hired gun" is one way of putting it, though of course there are even less delicate names as well. We often see it in mock trials and post-trial interviews. Rather than sorting out the views of well-qualified and conflicting experts, jurors will rely on their own imperfect knowledge, and something their mechanic uncle once said is better than the sworn testimony of an engineer. One way of getting past this perception of bias is to counter the stereotype. Present yourself as an expert who does "real work" outside of testifying. Admit to something that doesn't help your side. Drop the tone of an advocate and convey your opinion in impartial terms.
Jurors: Don't Pigeonhole When Selecting or Persuading Them
Of course, it is a two-way street. If we expect jurors not to stereotype advocates and witnesses, then we should return the favor at the start of trial and throughout: Don't select or address jurors based on stereotypes. Not only is it considerate, it is also more accurate. Take demographics, for example: The temptation to form conclusions based on what you can see can be hard to resist, but there is no evidence that demographics are a reliable guide to verdicts. Other stereotypes can emerge from experiences and attitudes as well. For example, based on one prior job or one comment about big companies, we can be tricked into thinking that we know the panelists' views on our client from front to back. Now some of that is the inevitable effect of making choices based on limited information. But you should work to make your evaluation as complete as possible, for example, by using a system that considers the effect of everything you know about a panelist, not just one memorable answer.
Of course, all of these strategies will work better when your jurors, and you, have a lower "Personal Need for Structure" since flexibility is an important part of both persuading and being persuaded. The process of getting past stereotypes in the courtroom also speaks to the role of psychological disruption as a strategy. Without interfering with your listeners' patterns of perception and thought, they will coast along the easy way and arrive at the most predictable conclusion. You can often get better results by challenging current modes of thought and getting your targets out of their comfort zone. One way of doing that is to recognize and subvert the stereotypes.
Other Posts on Perception:
- Avoid Condescension and Other Sins of Legal Argument: Know Your 'Second Persona'
- Be Disruptive in the Courtroom
- Leverage the Persuasive Advantages of Beating Expectations
- Don't Select Your Jury Based on Demographics: A Skeptical Look at JuryQuest
Goclowska, M. A. & Crisp, R. J. (2012). (2012). On counter-stereotypes and creative cognition: When interventions for reducing prejudice can boost divergent thinking. Thinking Skills and Creativity. DOI: 10.1016/j.tsc.2012.07.001
Image Credit: Sam Portillo, Flickr Creative Commons