November 3, 2014

Know What Scares (the Top Five Fears)

By Dr. Ken Broda-Bahm: 

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It is said that you know someone when you know what they hope for and what they fear. Since we’re just past Halloween, let’s go with the latter. A new survey coming out of Chapman University focuses on the greatest fears held by Americans. Based on a random sample of 1,573 adults, the short list of the top five are as follows: 1) Walking alone at night; 2) Becoming the victim of identity theft; 3) Safety on the internet; 4) Being the victim of a mass or random shooting; and 5) Public speaking. These are the kinds of social science results that are interesting in their own right. But in keeping with the spirit of the Persuasive Litigator blog, I can’t help but wonder about the litigation relevance of these results. 

Motivation is, after all, key to persuasion, and fear is a powerful motivator. Litigators in a variety of contexts should be attuned to the fear that a given trial story can evoke when jurors inevitably map the narrative back upon their own experience. They’ll ask whether the case touches, even tangentially, on an issue that affects them. Could something like this happen to me? What can I do about it? Understanding fears is important to understanding audiences. The broadly influential Reptile perspective on legal persuasion goes so far as to say that reacting to fear and seeking personal safety and security, are the most important motivators for jurors. In that context, it is interesting that only two of the top five fears have to do with physical security in the sense of the risk of injury or death. That suggests that there are other powerful sources of fear that range beyond the physical threat. That would mean that fears don’t just come into play in wrongful death or personal injury cases, but extend to other more abstractly threatening situations as well. In this post, I’ll take a look at the top five scares according to the Chapman survey, and share some thoughts on why they might matter in a legal persuasion context.

#1 Walking Alone at Night

On this top fear, it strikes me that the researchers have chosen an indirect way of expressing it. I’d suspect that the fear isn’t literally walking alone at night, but is rather the vulnerability that walking alone at night connotes: the risk of assault. The core value in this case, then, is physical security. We don’t want to feel susceptible to physical harm, particularly in situations where that harm would go unnoticed or where we would be unaided. This personal safety-based fear would be invoked in litigation scenarios, most obviously, in cases which focus on a direct physical danger: products liability, medical negligence, or other personal injury or wrongful death cases. The fear these cases touch upon is the notion that there are forces out there that can hurt us. With that reference point, jurors will not just be evaluating the circumstances of the plaintiff, but will be looking at their own circumstances and asking if they or their loved ones could be put at risk by the actions of people like the defendant, or in some cases, by people like the plaintiff. After all, walking alone at night also seems like a choice. If it ends badly, then the first thought in response is often pointed back toward the victim: They should have made a different choice. 

#2 Becoming the Victim of Identity Theft

I don’t know if the Chapman survey on American fears has tracked this kind of data historically, but I would wager that this one is a relatively new fear. Identify theft, after all, is one of those crimes that essentially could not occur before our identities and our assets went digital. But again, the real harm isn’t the theft, but what comes after: debts we did not incur, damage to our credit ratings, and an inability to confidently participate in the marketplace. The core value at stake is our economic autonomy. That is a value that comes directly to bear in financial cases. Litigation involving banks and shareholders can equally tap into some strong juror fears based on being victims of impersonal financial forces beyond our control. In those kinds of cases, the defense strategy should focus on ways to put power back in the hands of customers, clients, and shareholders, to reinforce the conclusion that they are not inactive or unknowing victims, like those who have their identity taken without their knowledge, but are instead knowledgeable and sophisticated actors in their own right.  

#3 Safety on the Internet

Another historic newcomer among fears, this one looms larger with each new broad-based hacking crime or celebrity photo scandal. The core value at issue is the value of privacy. The fear is that there is a personal sphere that is breaking down in the modern age. In a litigation context, the strong valuation of privacy can lead a jury to be sympathetic to victims of stalking, harassment, or other situations where the personal sphere is under attack. But in addition to that content overlap, there is also a process concern in litigation: Potential jurors are suspicious of voir dire, particularly when it involves long or intrusive questioning. That questioning, and particularly a detailed questionnaire, can be invaluable, but its relevance needs to be made clear: We aren’t just prying, or just trying to ‘get to know you.’ Instead, we are asking about topics that bear on whether you are the right juror for this case. In addition, today’s jurors need to be reassured that their data will not be retained. Promise panelists that you will destroy the questionnaires and keep that promise.

#4 Being a Victim of a Mass/Random Shooting

The core value here, as in the case of number one, is physical security. We don’t want to come to a violent end. Personal fears of being a shooting victim are undoubtedly driven more by recent events and the news cycle than by statistical risk. And in this case, the added factors that distinguish this fourth fear from the first are the factors of randomness and luck. Shooting tragedies are characterized over and over again with that same word: “senseless.” Unlike the robbery or the assault victim, the mass shooting victim has no ‘logical’ connection to the crime. One implication of that is what this says about how we perceive tragedy and misfortune. The easier an event is to counterfactually ‘undo,‘ the more tragic it seems. We think, “If only those victims had not been there at a place and time that was determined at random.” That is part of the reason mass shootings garner more attention than much larger sources of risk, like domestic violence for example. In assessing your trial story or the other side’s, think about how easy it is to apply this kind of “if only” thinking to the choices of the parties.

 #5 Public Speaking

I’ve known since my college teaching days that public speaking is one of the top fears. That is interesting, because it seems like this particular threat would pale in comparison to the others. After all, few people are immediately threatened either physically or economically in the course of a public speech. But something really is at stake nonetheless. The core value in this setting is social standing. The public speech is simply an instance of presenting oneself to a number of other people at the same time: The potential loss is a loss in face. The implication for litigators and witnesses, beyond the advice of learning to use that stress, is that jurors – particularly, but not exclusively, in high-profile trials – worry about their own social standing. To support that feeling, jurors want to believe that they are making an independent and unbiased decision supported by the facts and the law. Any suggestion or implication made to them in either voir dire or trial that they would do anything else will bring about a defensive reaction.

There is one more interesting tidbit from the Chapman survey on American fears. They also looked at the question of who is the most fearful. Specifically, it turns out that the best predictors are low levels of education, as well as high levels of television talk show and true-crime viewing. In support of that fear, the researchers also demonstrate that a large share of the population believes that crime is increasing in a number of categories when it is actually decreasing. Truth is one thing, and the feeling of truth – ‘truthiness’ — is another. 

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Other Posts on Fear Appeals:  

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Chapman University. 2014. The Chapman Survey of American Fears, Wave 1. Orange, CA: Earl Babbie Research Center. 

Photo Credit:  RJ, Flickr Creative Comments (Graffiti attributed to Mau Mau)

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