By Dr. Ken Broda-Bahm:
The act of making choices makes us feel more powerful and more in control. Take the current debate on gun rights. Proponents of keeping firearms for self-defense are convinced that they're safer because they're armed. Statistically, however, having a gun in the house greatly increases the risk of violence through homicide, suicide, or accident (Hemenway, 2011). Individual gun owners are likely to discount those statistics (e.g., Howard, Webster & Vernick, 1999) because the gun is under their control and, they believe, they're the ones making the choices that would affect their exposure to that risk. The situation is different, but it is the same phenomenon at work when people feel they have better odds of winning a random lottery if they picked the lottery number themselves. Even when the result is just the product of chance, choice feels like control.
The larger point to be made here is that choice -- and, more importantly, perceived choice -- leads to greater confidence and plays a very important role in persuasion. Since we know that persuasive targets are engaged in an active process, not a passive one, it is critical for communicators to adapt to that fact by respecting an audience's autonomy. When fact finders believe they are following their own process, selecting their own paths, and reaching their own conclusions, they feel more confident in the result. The persuader who guides that process instead of dictating it will be rewarded. This post takes a look at some of the research on choice and what that should mean to the legal advocate.
The Psychology of Perceived Choice
When I give presentations on the topic of legal persuasion, I will sometimes use an exercise that asks each audience member to pick a number, perform a series of simple mathematical alterations to it, and then to think of an animal and a country name that corresponds to the number they've picked. Because each audience member started with their own secret choice of a number, each believes that by the end of their exercise they have a unique country and animal name in mind. In fact, due to a trick in the math, they all end up in the same place and are often shocked that I know exactly what animal and country name they've picked. The trick highlights the central challenge of the legal persuader: how to lead fact finders to a preferred conclusion while still giving them the sense that they're making their own choices.
Professor Sheena Iyengar, author of The Art of Choosing, is discussed in a recent Psychology Today article, "Why Having Choices Makes us Feel Powerful." The piece reports on a number of Iyengar's studies showing that in controlled settings, animals as well as people prefer situations which enable them to exercise more apparent choice. In a recent TED talk, for example, Iyenger reports on a study supporting the intuition that people do better on a task when they've chosen the task themselves rather than having it assigned. That is even true when an assigned-task group and a chosen-task group end up performing the same task. While part of this appears to be cultural (e.g., first generation Asian-Americans performed best on the task when told the task was selected by their mother), part of it also relates to the psychology of decision making.
At one level, this all seems obvious: Of course we like choices, why wouldn't we? But the reason we prefer our own choice is an important reason to grasp. After all, most of us don't believe we're the smartest person in the world, so we don't always prefer our choice because we necessarily think it is objectively the best choice. Instead, we prefer it because it is our choice. Autonomy,or as the psychologists call it, "locus of control" is a powerful motivator. When we believe that we ourselves are the focus point of a decision, we are likely to be more engaged in the process and more satisfied with the result. Going back to gun ownership for a moment, it may be locus of control that adds to the appeal: Guns provide a feeling of greater security, while at the same time inducing owners to feel relatively immune to the risks.
The psychological power of choice is a key part of our perception, satisfaction, and ultimately, persuasion. Particularly in a legal setting, the decision makers will know, because the instructions will tell them, they're supposed to be exercising their own judgment and reaching their own conclusions. Instead of just buttressing a preferred conclusion, your advocacy should aim toward helping fact finders make their own choices, which should of course be your more favorable choices as well.
Make Choice Part of Your Trial Message
The starting point is to recognize the desire of your fact finders to bring their own judgment and make their own decision, not just accept or reject what you have to say. It is important to boil down those choices. Iyengar's research also shows that having confusing choices or too many choices (e.g., more than ten) tends to cause poorer choices. So a jury trial generally, and closing argument in particular, should be a process of focusing the jury's upcoming choices.
Acknowledging the fact finder's choices, however, doesn't mean giving up control. An approach that says, "I'll just lay out the evidence, and then it is really the jury's decision" isn't persuasion, and isn't what our adversary system has in mind. Instead, legal persuaders should be laying out a path of breadcrumbs leading to, what for you is, the right choice. As long as the jurors feel they had the option to have made other choices, they'll be more comfortable that the end result was their decision. In prior posts, I've referred to three ways to embed that choice in your message.
1. Choice of Decisional Path. In closing argument it can help to, as the educational saying goes, "be a guide at the side, rather than a sage on the stage," by explicitly framing yourself as a facilitator of the jury's own choices rather than as an advocate for your own. One way to do this while still maintaining some control is to lead the jury through a series of questions (e.g., "What did the parties intend?" "What does the contract include?" and "What does the contract not include?"), as well as a series of places to look for those answers (e.g., "To answer the first, who was there at the time? And who no longer has a dog in this fight? What did he say on the stand?"). In this way, the closing can try to match a juror's own mindset and decision making path.
2. Choice of Verdict Form Options. While it won't apply in all cases, in some situations it helps to embed the different options into the formal choices the jury will make at the end of the case. Of course, pretrial motions will aim to restrict that choice, but if there are still some choices left in the verdict form, that might help to play to the tendency in both psychology and group dynamics to compromise, and to gravitate toward the option that is positioned as a Golden Mean between two extremes. Also, from a plaintiff's perspective, providing a menu of options increases the intuitive likelihood that they'll pick one rather than a "none of the above."
3. Choice of Damage Anchors. The tendency for us to take a middle path can apply to damages as well. You can adapt to a jury's or arbitrator's preference for a mid-point option by suggesting a range, even if the extreme ends contain values you or your expert could claim but aren't claiming. These amounts can still serve as a mental anchor to facilitate a decision maker's perception of choice and aid the group's feeling that they are taking a reasonable "middle road" option.
The bottom line is that it's not just a matter of adducing reasons for a decision, but a matter of getting an audience or a fact finder to a point of comfort about a decision. Providing that comfort depends in part on the implied message, "I see you as a decision maker, and not just as a vessel for my message. Instead of filling you with my facts, my evidence, and my persuasion, I am trusting my goals to your process."
Other Posts on Decision-Making:
- When Arguing Damages, "Drop Anchor" Even in Murky Waters
- Aim Your Damages, And Your Case, at "The Golden Mean"
- No Blank Slate (Part 1): In Opening, Treat Your Jurors as Motivated Reasoners
Photo Credit: Benjamin Chun, Flickr Creative Commons