By Dr. Ken Broda-Bahm:
All reasonable people think like you do. They will notice what you notice, perceive it as you do, find it credible, or not, like you would, and they will be persuaded, or not, in the same way that you would. Okay, give it a moment of thought and you wouldn’t actually believe that. But fall back on your normal habits, and you may act as though that were true. You might make the tacit assumption when analyzing an audience that they are fundamentally like you are. It is a bias, and a strong one. Social scientists call it the “false consensus effect” and it refers to our tendency to overestimate the likelihood that our own attitutudes, beliefs, and behaviors are shared by everyone else. Written up in a useful Psyblog post, the false consensus effect is pervasive. When we implicitly project our own reactions on others, it feels like we are just making judgments based on what is “logical,” “reasonable,” or “normal.” But, in fact, we are missing out on what makes our target audience unique. The end result, according to Psyblog’s Dr. Jeremy Dean, is that “We all stink as intuitive psychologists.”
Litigators and litigation consultants are not immune to the false consensus effect. Though we often have a lot of training and experience focused on audience analysis, we can still make subtle errors in projecting ourselves and our own standards of reasonability onto our targets. When analyzing cases, for example, we might define the “best arguments” as the ones that would work well on ourselves. We might also define the case’s “biggest problems” as those that give us the greatest amount of heartburn. When that is done without enough analysis, it risks breaching a fundamental truth of persuasion. That truth is: We are not our audience. Adapting means setting aside the ideal image of what you would like your audience to be and, instead, speaking to them as they are. In this post, I will take a look at the research on the false consensus effect and share some thoughts on ways to get outside those beliefs when assessing and preparing your case.
The Research: True Facts on False Consensus
The original research on the false consensus effect (Ross, Greene & House, 1977) is now a classic. The study, led by Stanford social psychology professor Lee Ross and his colleagues, focused on two experiments.
In the first, participants were presented with a choice in a conflict situation, and asked what option they think others would choose, what options they would choose for themselves, and what attributes someone would have if that person chose the other option. Predictably, participants thought that most people would do what they did. And those who didn’t make that choice were seen as having unusual or extreme personalities.
The researchers then conducted a second study, known colloquially as the “Eat at Joe’s” study. In this one, they asked university students whether they would be willing to walk around campus for 30 minutes wearing a large sandwich board bearing that message: “Eat at Joe’s.” The only inducement was the promise that they would learn “something useful” from the experience. The results illustrate the trend in false consensus: Among those who agreed to wear the sandwich board, most (62 percent) believed others would agree as well. But among those who refused, only a third (33 percent) felt that others would agree. So whether they agreed to promote “Joe’s” or not, participants were strong in their belief that most others would have made the same choice.
The Implications: Stop Projecting
The idea is that instead of thinking that others would most likely think like us, we need to set aside that assumption and actually find out how they think. That, of course, is easier said than done. We are always our own best example and most convenient reference point. But a key feature of every effective persuader is rhetorical sensitivity: the ability to understand and adapt to the fact that there are many audiences and many ways to approach the same fundamental message. Given the complexity of trial situations, keeping an open mind is a critical step in holding off the premature closure telling you that you already know what’s most important, best, and worst about your case.
When you’re tempted to project too quickly about what jurors think of your case, here are three reminders.
They Don’t Necessarily Think Like You Do
Just owing to the fact that they made it out of law school, lawyers are predictably high-analytics with a high need for cognition. And those who frequently work with lawyers probably gravitate toward the same style: They welcome challenges and break them into logical parts in order to solve them. Based on their training, those who work in law tend to reason technically and methodically, not holistically or organically. They’ll try to keep track of all the facts and not just those that stuck for some reason. They’ll think first about the elements and the facts that support each, and only then about the story. Some jurors will be like that as well, but many will think in very different ways about your case.
They Won’t Necessarily Notice All that You Notice
Awhile back, I spoke with a lawyer who had just lost a case. He was convinced that the loss stemmed from one specific factor: a quote he attributed to a witness that turned out a little differently when the witness testified on the stand. To him, this “broken promise,” drained his credibility and motivated the jury to go with the other side. Without being able to interview the ex-jurors, we will never know. But I had serious doubts that the jurors even remembered that line from the opening, or noticed any difference when the testimony came out. Because attorneys are performing during trial and holding themselves to a high standard, they tend to believe that any stumble is going to matter. But it is often our own definition of “stumble” that we’re applying.
They Don’t View Credibility, Importance, and Persuasiveness in the Same Ways You Do
What a given juror considers believable and persuasive is going to be a product of her own unique mix of beliefs, attitudes, and experiences. In trying to appeal to that juror, we can predict and we can estimate, but to at least some extent, those estimates will be tainted by our own unique mix of beliefs, attitudes, and experiences. At some point, we need to set aside the prediction and directly assess. That assessment can be done in attorney-conducted oral voir dire where it is permitted. And as a proxy, it can also be done through a focus group or a mock trial. No, you won’t be using that research to directly assess your own actual jury (the judge might have a problem with that). But you will be, at a minimum, stepping outside of your own expectations and your own false consensus beliefs about what reasonable people would do. That, as much as anything else, is the benefit of testing your case through focus group or mock trial research.
Apart from formal mock trials or focus groups, you can also step outside your own mindset by asking for second opinions. Ask other members of the team. Ask attorneys who aren’t on the team. Ask others in your office who know nothing about the case. Every additional opinion helps to chip away at that bias in thinking that everyone thinks like us. Ultimately, the goal is to see your persuasive targets as they are, and not as you want them to be.
Other Posts on Bias:
Ross, L., Greene, D., & House, P. (1977). The “false consensus effect”: An egocentric bias in social perception and attribution processes. Journal of Experimental Social Psychology, 13(3), 279-301.
Image credit: A Syn, Flickr Creative Commons