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. Continue reading
By: Dr. Ken Broda-Bahm –
Reacting to new evidence of support in the public as well as the U.S. military for allowing lesbians and gays to serve openly, those who support a continuation of a “Don’t Ask, Don’t Tell” policy continue to warn of a dangerous loss of troop cohesion and morale, as well as the potential loss of troop strength if the policy is repealed during wartime. While proponents and opponents of change differ on the merits of these arguments, there is also a dimension to these warnings that students of persuasion would recognize as a classic fear appeal. The practical question to ask, both generally and in the case of legal persuasion, is whether fear works. A strategy of seeking to call to mind an audience’s fear is, of course, no stranger to litigation. Plaintiffs imply, if they can, that a defendant unchecked by a strong verdict in this case will continue to harm others, including you and your loved ones. And defendants also would like to benefit from the belief that continued encouragement of frivolous suits – like this one – will just add to the threatening trends that are increasing prices, raising insurance rates, and robbing consumers of choices.
It only makes sense to believe that jurors file into a deliberation room, not to execute ‘justice’ in some abstract sense, but to serve a principle that they have some direct stake in. An approach currently very much in vogue within the plaintiff’s bar and known as the “Reptile” strategy, would seem to endorse the use of fear as a direct and personal motivator for your jury, but a careful review of research suggests that attorneys should think twice about how, or whether, to scare their jurors. Continue reading