By Dr. Ken Broda-Bahm:
If you've seen the Pixar animations feature Monsters, Inc., you might remember the slogan of the company in the title: "We scare, because we care." Plaintiffs' attorneys, particularly those who are followers of the Reptile approach to persuasion, may well have the same slogan. Since the perspective focuses on the idea that our primitive or 'reptile' mind is motivated by threats to our own security, trial lawyers using that approach will base their case on the threat and insecurity stemming from a defendant's conduct, and frame a plaintiff's verdict as a solution to that fear. Arguing that the events at issue in a case pose a threat to jurors and their loved ones, they suggest that the only solution is to use the power of the verdict in order to check that behavior. So based on this outlook, fear is useful: It's a human motivator that plays a role in getting jurors to see a case in personally relevant terms and plaintiffs will add that they aren't the only ones playing to fears. Defendants, they'll say, have also either explicitly or implicitly played to fears: fear of false claims, runaway verdicts, and greedy plaintiffs, for instance.
As much as it plays a role in what we think motivates jurors, however, fear is not so simple. As I've written previously, "The problem with an unvarnished fear appeal is that it can backfire by causing its intended audience to withdraw from the subject matter." In that same post, I reviewed a study showing that extremely dire threat appeals based on global warming actually led to a reduced belief in global warming (Feinberg & Willer, 2012). That is not to say that fear is never a good motivator, but fear appeals need to account for the complexity of human risk perception. This post shares a couple of lessons from a few studies illustrating the broader point that risk assessment is situational, nuanced, and difficult to predict. So, even when your case is able to invoke a threat, motivating decision makers and persuading, based on that threat, is not as simple as just pushing a button.