By Dr. Ken Broda-Bahm:
Research on human decision making is swiftly honing in on one central conclusion: Motivations lead and reasons follow. In other words, what generally comes first is a preference – a desire in the form of what we want to decide. What comes second are the reasons that support that desire. We are pulled toward a particular choice by motives that are powerful though not always conscious. Then, like a lawyer trying to build a case, we generate reasons to support that choice. This understanding of human decision making finds substantial support in recent social science research, particularly in a robust line of studies conducted by NYU business ethics professor Jon Haidt and his team. In addition, I’ve also written about a number of studies like the one looking at parents evaluating information on daycare or home-care for children (Bastardi, Uhlmann & Ross, 2011), demonstrating that the best predictor of what we consider to be “good reasons” is whether those reasons conform to what we want to believe.
So if it is true that motivations lead and reasons follow, then the critical question for litigators and other practical persuaders is: “What motivates?” The answer to that question will be as varied as the setting and the audience. But in this blog, I’ve frequently focused on some consistent themes involving broad and powerful motivators. To pull those themes together into one spot, I'll devote this post to the creation of a brief taxonomy of the motivators I’ve covered. It is not by any means a complete list, but for litigators wanting to consider motivators, as well as reasons (that should be all litigators), I think it is a useful set of reminders. So, without any further ado, here is my list of ten ways our reasons tend to bend toward our wants.
1. Beliefs Motivate
Consistency is the master of our preferences: If we believe something now, then we are motivated to interpret new information in ways that maintain and reinforce those beliefs. I've written before of the numerous ways current beliefs are very sticky, and how when we are asked to evaluate information that conflicts with those beliefs, our analytic ability to even understand that information can become clouded. If a juror, for example, believes based on pretrial publicity that a given criminal defendant is guilty, then they'll notice and remember all the trial evidence that confirms that view, while forgetting or failing to grasp the information that conflicts with it. For litigators, it is critical to know the prior beliefs to reduce certainty among those who think they know, and to strike those who are unlikely to be able to set these beliefs aside.
2. Attitudes Motivate
At a deeper level than beliefs, attitudes provide jurors with an easy route to new beliefs when exposed to new information: We want to see our own attitudes confirmed. Whether those views are characterized by implicit racial bias, anti-corporate bias, anti-plaintiff bias, or a myriad of other attitudes, a juror's own perception and reason-generating ability will be strongly determined by that starting point. In a corporate defense case, for example, the anti-corporate juror will want to believe that they're right about corporations, and will for that reason have an easier time following the plaintiff's narrative. In addition to carefully identifying prior attitudes through pretrial research and thorough voir dire, litigants need to craft arguments that build upon prior attitudes instead of fighting against them.
3. Ideology Motivates
Even more deeply than beliefs or attitudes, our fundamental political ideologies -- liberal, conservative, libertarian -- create a powerful motivation as well. Having a worldview means fitting the facts we see into a frame, and as George Lakoff wrote, "If the facts do not fit a frame, the frame stays and the facts bounce off.” This means that politics is much different than a simple decision or choice made at the polls. A team of British and American researchers recently showed that just by looking at the parts of the brain used when assessing risk, they could predict with greater than 80 percent accuracy whether someone identifies as liberal or conservative. Knowing how your venue, as well as your individual panel, stacks up can be critical.
4. Fear and Insecurity Motivates
Bottom line, we want to feel personally safe and protected. The modern plaintiff's persuasion approach called The Reptile is premised on that: Plaintiffs do better when they can encourage a jury to believe that through their verdict, they are protecting themselves, their family, and their community. Whether that appeal works by tapping into a primitive "Reptilian Brain" (questionable), or simply by invoking a powerful motivator (more likely), the approach has won over an army of adherents. Defendants can tap into the same dynamic: If jurors believe the plaintiff's case poses a comparable threat (e.g., frivolous lawsuits causing a reduced freedom to innovate), then they can be similarly motivated to resist the plaintiff's arguments.
5. Power Motivates
Most of us enjoy the feeling of control and influence. Studies show that influencing our level of perceived power leads to a "moral clarity" that makes us more comfortable with outcomes that would otherwise be seen as harsh. When jurors feel powerful, they are more comfortable with extreme verdicts. In an employment case, for example, jurors might be subtly encouraged to feel like they are not just evaluating one defendant in one circumstance, but are instead weighing in on a broader question of what is and is not acceptable in the American workplace. Thus empowered, they will want to find a way to exercise that power and make a statement. It is important for litigators to know when to play that power up and when to play it down.
6. Choice Motivates
We like to believe that we are free, and that motivates us toward persuaders who emphasize that feeling of choice. As Psyblog has shared, research shows that making an appeal and then simply adding "...but you are free to decide" can effectively double your chances of successful persuasion. Emphasizing your fact finders' freedom and choice in your trial message also works. Tell them what they have to do and you just invite counter arguments. Instead, remind decision makers that they're free to follow their own path. If you still lay out a trail of breadcrumbs for them to follow, they will feel more motivated to follow it when they see it as their own choice.
7. Comparison and Compromise Motivates
We often pick this because it feels more reasonable than that. We make judgments via contrast because we are naturally motivated to avoid extremes and more comfortable with what appears to be the moderate option. I've written before on how this comparison effect applies in several ways, with jurors wanting to aim their end result at The Golden Mean, wanting to anchor and then adjust a damages number, and evaluating experiences based on the Peak-End Rule of giving strong emphasis to how something seems at its peak and at it's ending. The basic point is that in making any persuasive case that says "This is reasonable" or "That is bad," factor the question, "Compared to what?" into your persuasion.
8. Shortcuts Motivate.
While the law generally asks its fact finders for high-effort thinking, psychology actually puts an emphasis on low-effort thinking, at least for many of us whenever we can get away with it. Instead of following a process of weighing all the evidence, applying the law, and coming to a deductive judgment, jurors are often motivated to follow their own inductive shortcut instead. These kinds of heuristic rules -- plaintiffs are just greedy, corporations are just dishonest, the government is just incompetent -- can give us a pretty firm understanding of any story even before we have understood all the facts. The rules can also be more specific: If information has been kept secret, then it is also more valuable. Predicting the path that your decision makers will take often amounts to scouting the shortcuts and then aiming to either use them if they help, or to close them down if they don't.
9. Emotions Motivate
Particular emotional reactions can motivate us to find particular facts. Contrary to the stereotypes of legal persuasion, however, that doesn't mean that it is necessarily a good idea to play to the sympathies of the jury. Jurors want to feel like they're basing their findings on the facts and not, for example, believing a plaintiff just because they've been injured or believing a defendant just because it hurts to be accused. But that doesn't mean that emotions are walled off altogether. Whether an event's framing leaves jurors "sad" or "mad," for example, can play a very powerful role in determining whether they're motivated to just note a tragedy and passively move on ("sad"), or see an injustice and try to right a wrong ("mad").
10. Stories Motivate
What psychologists call the "Need for Closure" creates a motivation for us to want to see a story through to a particular conclusion. Litigators who tell their story in a way that leads jurors to their preferred action will fare better. But this common advice to just "Tell a story," means more than just arranging the evidence in a sequence. It means adapting the the hard-wired story structure that listeners expect, and arcing your narrative in a way that elicits both distress (a problem to be resolved) and empathy (an ability to take on the protagonist's perspective). That is what earns the difference between a story that is simply understood and one that is actually appreciated. Successful trial lawyers of all stripes have known for years to tell a story. But the best among them will think hard about the best way to style that narrative in order to motivate jurors in each particular case.
Knowing that your own motivation, dear reader, is finite, let me stop the list there. Even though motivations can be as varied and infinite as the situations and audiences that contain them, I do think that this list serves to pull many of my past writings into a coherent whole and a pretty workable list. Based on the rule that motivations lead and reasons follow, this list suggests a two-stage model for persuasion:
- First, identify the motivators. Ask and investigate what will move your target audience to want a particular conclusion.
- Second, organize and orient your reasons so as to exploit the helpful motivators and to address the harmful ones.
The bottom line is that acknowledging that motivations lead and reasons follow does not mean that jurors are irrational and motivations are all that matter. Jurors still want to base a verdict on reasons at the end of the day. Your case and your persuasion should still be based on reasons, it is just that those need to be built upon an architecture of motives.
Other Posts on Motivation:
- Don't Discount a Motivated Minority
- Account for a Motivation to Discount the 'Official' Narrative
- Aim Your Oral Argument at Your Judge's Motivating Principle
Image Credit: Joe Ross, Flickr Creative Commons