By Dr. Ken Broda-Bahm:
When the facts supporting one's beliefs are challenged, one common recourse is to reframe those beliefs in a way that is more resistant to factual refutation. Calling this the "flight from facts," a new article in Scientific American shares an example: An anti-vaccine believer first notes the purported connection between vaccines and autism, then after those facts are thoroughly trounced, simply shifts their advocacy to something like, "Well, regardless, it's still my personal right as a parent to make decisions for my child." In a litigation scenario, we can imagine a similar reframing:
Juror A: Corporations lie.
Juror B: Well, in this case, what they said turns out to be accurate.
Juror A: Yeah, I guess. But I just don't trust their motives.
It is called "cognitive consistency." In the face of factual refutation, you could change your mind. But it is often easier to simply change your rationale. The article entitled, "Why People 'Fly from Facts'" reports on research demonstrating that tendency. And that habit is an obvious barrier to persuasion. In a litigation context in particular, we would like to believe that if you undermine the factual support, then you've undermined the argument. But understanding jurors and other humans means acknowledging that often the psychology will trump the logic. In this post, I'll look at the facts supporting this "flight from facts" and share some ideas on what to do about it when persuading jurors.
Theory and Research: Facts, Faith, and Falsifiability
It was one of the more useful concepts in philosophy that I'd come across in my undergraduate days: Karl Popper's notion of falsifiability seemed to provide a handy way of telling the difference between knowledge and belief. The notion is that for something to be capable of being proven true, it must also be capable of being proven false. For example, take the notion that there are ghosts and they lie outside human means of perception and proof. That is a classic example of an unfalsifiable belief: You could never prove it wrong, because any lack of proof just goes to show how good these ghosts are at resisting our efforts at verification. It may be a very firm belief, but to count as knowledge it has to be falsifiable.
That distinction is logical, but not psychological: It doesn't describe how people work. In practice, there is a pull toward, not away from, the untestable premise. And the research study provides a good example of that. The authors (Friesen, Campbell & Kay, 2015) recruited 174 research participants and looked at their reaction to factual refutation of their beliefs on two topics: marriage equality and religion. The experiment showed that, when given facts that contradicted their views, participants responded by framing their beliefs in more unfalsifiable terms. "When people’s beliefs are threatened," the authors conclude, "they often take flight to a land where facts do not matter."
What's more interesting is that this retreat occurs without any loss in confidence in the validity of the position. Indeed, confidence is likely to increase. A follow-up study found that making their rational free of facts actually increased participants' commitment to their opinion. The researchers note, "When testable facts are less a part of the discussion, people dig deeper into the beliefs they wish to have."
Stopping the Flight From Facts
The law sees itself as an arena for logic over emotion, reason over feeling, fact over belief. Any claim potentially made in litigation needs to be, if not falsifiable, at least refutable. And for their part, jurors and certainly judges will try to put reasons first, and will want to accept a factual refutation as disproof of a claim. But ultimately, attitudes will still matter in ways that are subtle but important. At least when the facts support your side, litigators will want to try to combat that flight from facts, to get jurors back on a logical and evidence-based plane. Here are a few simple reminders for doing that.
Frame It on Facts
Don't take it for granted that jurors understand that they are supposed to be focusing on facts and deciding what is true, and not deciding what is best. In an employment case, for example, I have seen jurors get the wrong message from the defense and think that they are supposed to be assessing the business decision of whether the company made the right decision in terminating the employee, instead of making the factual decision of whether that termination was for discriminatory or retaliatory reasons. So remind them frequently. Using the more descriptive name, "finders of fact," can also help.
Focus on What Would Falsify
In addition to offering proof for your own claims, it can also help at times to focus on what it would take in theory for the other side to disprove your claim. Sticking with an employment example, the defense might emphasize a lack of proof like this.
You heard straight from the decision makers that this termination was based on Ms. Smith's performance and nothing else. Now, it is the Plaintiff's burden to convince you that this is just a pretext. What would prove that? A memo in which the company revealed its true motive? You haven't seen that. A broad pattern of actions that Ms. Smith's termination falls into? You haven't seen that either. You can bet that if there was a "smoking gun," Ms. Smith's attorneys would have shown it to you, but they didn't.
Don't Miss the Motivation
One final reminder is critical: Just arguing the facts alone misses the point. What causes the "flight" part of the "flight from facts" in the first place is a motivation. If the jurors hearing the message above do not like or trust the company at issue, then they may not need a clear smoking gun. Instead, the motivation to find fault with the company or to vindicate the employee gives them reason to see discrimination even in the absence of clear evidence. That suggests a two-stage approach: First, find what motivates the fact finders to want to support your side, and second, provide the evidence that will help the fact finders see that support as well-founded.
Other Posts on Motivated Reasoning:
- Know What Motivates
- Convert Your Conspiracy Theorists: Research Shows it Can Be Done
- No Blank Slate (Part 2): In Closing, Treat Your Jurors as Instrumental Arguers
Friesen, J. P., Campbell, T. H., & Kay, A. C. (2014). The Psychological Advantage of Unfalsifiability: The Appeal of Untestable Religious and Political Ideologies.
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