Persuasive Litigator

Empower Through Choices

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.

First Expert Rule: Keep It Concrete

By Dr. Ken Broda-Bahm:

It is common experience that jurors will often set aside expert testimony. Part of it, of course, is a "hired gun" effect that in some cases leads jurors to distrust experts based on the knowledge that they've been paid for their opinions by one side or the other. But over time, I've come to believe that is not the dominant reason jurors have for avoiding reliance on experts. Instead, there is a more basic reason at work: Jurors don't use experts because they're not convinced they need experts. They think they know the general idea well enough already. Why listen to a product safety expert if I think product dangers are obvious based on common sense? Why listen to a construction expert if I have a brother-in-law who works in construction?

This overconfidence and preference for personal knowledge has a social science name: the illusion of explanatory depth. It's a cognitive bias that occurs when people believe they understand a concept more fully and more specifically than they actually do. The way it works is this: Once we're able to appreciate or articulate something at a very general or abstract level, we come to believe that we understand the specifics and the mechanics of it at a concrete level as well. But, we don't. As one of the most comprehensive recent studies of the phenomenon (Alter, Oppenheimer & Zemla, 2010) has noted, this perceived general understanding isn't something we can trust. "Although folk wisdom suggests that people often fail to see the forest for the trees," the authors note, "sometimes the greater concern is that people fail to see the trees for the forest." That has an immediate relevance to jurors' and other fact finder's understanding of expert testimony. Jurors can fall victim to overconfidence in understanding, and the experts themselves can unwittingly promote that illusion. The main goal is to avoid abstract explanations and be concrete instead. In order to practice what I preach, I mean to concretely explain in this post what I mean by "be concrete." 

Learn From Memes

 By Dr. Ken Broda-Bahm: 

If you aren't on Facebook, you may not have seen this before (and if you are, then you might see it, with different words, just about every day). The image and text above is called a "meme," the "Condescending Wonka Meme" in this case. It's a joke, of course, but borrowing from the language of biologist Richard Dawkins, the "meme" label refers to an image that conveys a quick and simple message that can then be mutated, customized, and passed along by sharing. Originating in photo sites like 4chan, memes have now taken over Facebook to become one of the most common ways people communicate in that setting. Users are able to pick a recognizable image from movies, video games, sports, television, or another pop culture setting, and add a pithy statement often reflecting something currently on the national agenda. For example, a common "Condescending Wonka Meme" right now carries the caption "Gun laws would prevent shooting sprees? Please, tell me more about how criminals follow laws," starting many a debate on Facebook. 

Since nothing escapes academic attention, there's now a raft of articles, theses, and chapters (e.g., Buchel, 2012 or Knobel & Lankshear, 2007, p. 199) focusing on the ways these innocuous-looking postage stamps of meaning are transmitting group identity and changing cultural literacy. As the latter article explained, "The power of memes to spread contagious ideas and to infect minds with particular ideas is widely recognized and entire groups have begun experimenting with meme engineering and distribution on quite significant scales." Now, since I'm writing about this on the morning of Christmas eve, I don't want to get too serious about it. Yet, the more I see these memes on Facebook (ahem, I'm on Facebook for purely professional reasons...to look up jurors' public profiles), the more I think about what memes can teach us about effective graphics in litigation. After all, these are messages and images that millions of average people are creating, modifying, and distributing themselves, so it seems like there is a high potential for at least a few takeaways. 

Pick the Right Frame

By Dr. Ken Broda-Bahm: 

Earlier this week at a mock trial, I witnessed a face-off between two jurors with very different views about the same insurance case: "The company wasn't fair," cried one, "to this day they haven't stepped up to do the right thing." But the other juror was unmoved: "The policy is what it is, there's no benefit to them going beyond it." It is tempting to see this as an exchange between two types of people. But more accurately, it is a conflict between people who happen to apply two different frames around the situation. The first juror is applying a moral frame, looking through the perspective of fairness and right versus wrong. The second juror is just looking at the pragmatics of the situation, and what the policy calls for quite independent of what is good or bad. While you might think the die is cast on which type of discussion will prevail as of jury selection, much depends on the message they hear in trial. 

The critical lesson is this: Frames can change, even within a single individual. Based on a recent study (Van Bavel et al., 2012), people appear to be very malleable and able to selectively apply either a pragmatic or a moral frame, and are able to rapidly switch between the two, even when evaluating the same or similar activities. To determine how the frame of evaluation impacts the way participants viewed the same stimuli, the researchers presented a number of concepts (e.g., murder, honesty, eating, or riding a bike), and asked for ratings on the moral grounds of whether they are right or wrong, or on the pragmatic grounds of whether they are personally beneficial or harmful. The team found not only that participants were able to easily switch between the different frames for all kinds of activities. They also found that the choice of frame matters: Moral judgments tended to be quicker, more extreme, and more universalized in the sense of applying to everyone. So the choice of frame matters, and if it is changeable, then the promotion of a particular frame is a key part of the message.

Don't Mistake the Witness for a Bucket of Facts

By Dr. Ken Broda-Bahm 

The law treats factual evidence as a repository possessed by the witness and elicited through testimony. Like a bucket, filled, in the case of your witnesses at least, with the sweet clear water of truth, you just dip in a ladle and out comes the descriptions, the observations, the facts. We acknowledge that the bucket isn't perfect: It holds only so much, and is prone to leaking. But we still treat testimony as the act of information retrieval, not fully accounting for the possibility that the bucket is at all times fundamentally transforming its contents. However, to a degree even greater than researchers expected, a new study (Bridge & Paller, 2012), confirms that transformation during recall is the norm, not the exception. That is, we rewrite every time we remember. In recalling, we reconstruct by mixing the original memories with our recollection of the previous times we've thought about and shared the same information. 

So memory is creative rather than descriptive, and dynamic rather than static. That goes to the heart of a trial court's reliance on testimony. Eyewitnesses in criminal cases get the most attention (which makes sense based on what is at stake), but the problem bears on civil trials as well, because it influences how we should treat all testimony that depends on recollection...which is to say, all fact testimony. Even the civil litigation witness may be creating as much as he is remembering, and it isn't a conscious attempt to mislead. This post looks at the new study and unpacks a few ways that trial lawyers can adapt to the realities of reconstructive memory.