By Dr. Ken Broda-Bahm:
Early rhetorical theory and the most modern advances in cognitive science are able to find a surprising amount of common ground. Particularly when we think of the persuasive demands on legal communicators, there is much that would be recommended both by the ancients, as well as by the most current research. One place where these two perspectives meet, for coffee let’s say, is on the point of the role of an active audience participating in the creation of an effective message and a persuasive result. In part one of this series, I explored Aristotle’s notion of the enthymeme as a practical philosophy for conceiving of the ways your persuasive target participates in the persuasion. And in this second installment, I fast-forward to today and share a few themes from psychological experiments showing the variety of ways in which Aristotle was right.
Today, what sells books on persuasion and influence is often the idea of simplifying: the one secret, the magic pill, the irresistible appeal that will make your audience respond in the desired fashion. But what is more accurate – and what is underscored by both ancient rhetoric and modern cognitive science – is an appreciation of complexity, a recognition that when it comes to persuasion, it is not just about the message or, necessarily, even primarily about the message. It is about the audience. Without knowing how your audience is likely to interact with a message, you don’t know how to persuade. This post focuses on the question, what does science say about the way persuasive targets participate in persuasion? To answer that, I’ll weave together a few different threads, some discussed in prior posts and some new ones, focusing on what we know today of the role of participation in persuasion.
So how do we use science to characterize the human participant in persuasion? We can see in a number of different yet complementary ways, that the persuasive target is an active target. Note that I use the language “persuasive target” to mean any intended recipient: not just juries, but judges, arbitrators, mediators, and even adversaries as well. All can be targets, and certainly moving targets. The research indicates there are several ways to be active, and each one carries a message about how we think about and relate to our audience. Let me boil it down to a list of reminders with some illustrations about how they might apply in legal advocacy.
Treat Your Persuasive Target As…
Free. A current post in PsyBlog calls it, “The one (really easy) persuasion technique everyone should know.” The technique is called “But you are free,” and it just amounts to reminding your targets that, in fact, they’re free to make their own decision. That seems, as advertised, really easy and perhaps obvious, but it goes to the heart of the principle of participation. A recent analysis (Carpenter, 2013) points to a total of 42 psychological studies involving a total of 22,000 participants demonstrating that simply adding this “B.Y.A.F.” appeal doesn’t just improve the chances of persuasion, but effectively doubles them. That means that when litigators say things like, ‘The ultimate verdict is up to you,” or “You’ll decide whether she is credible,” that isn’t just decorum and respect for the decision makers, that’s good persuasion. As I’ve also written, based on research by Sheena Iyengar (2011), having choices makes persuasive targets feel more powerful, more in control, and more confident in the results. Ideally, they’ll still be following the bread crumbs that you leave and still be led to the more favorable decision, but if they believe that they’ve made their own choices in the process, they’ll be more comfortable along the way.
Flexible. Our approaches to jury selection and judge analysis may tempt us to focus on how the judge or the juror is by focusing on durable and persistent attitudes and character traits. While we’re wise to keep those in mind, it is ultimately inaccurate and downright dangerous to think of our persuasive targets as static. Instead, current research continues to show that humans tend to be strongly “state dependent” and highly influenced by context, situation, salience, and specific appeal. And for legal persuaders, that is actually a very good thing. In the real world, few plaintiffs can win without persuading at least a few pro-defense jurors and vice-versa. And every litigator will someday face the challenge of trying to move a judge who is not looking favorable at the start. So, we are lucky that our targets appear to be very flexible in being able to switch between empathy and analysis based on the appeal they’re offered (Jacks et al., 2013), or view a controversy in either moral or practical terms based on the frame you apply (Van Bavel et al., 2012), and even assume a temporary identity during jury duty allowing their reactions in court to differ from what those reactions may have been in other settings. The main takeaway from this appreciation of flexibility is this: Don’t underestimate your audience and don’t give up. It never pays to assume that your persuasive target will simply not get to the point you need them to reach. Instead, it pays to ask, “What will induce a flexible audience to see the controversy in my terms?”
Motivated. Discovering what drives your decision makers is key to adapting to them, and that motivator is probably not a promise, oath, or a monetary payment. Instead, it is often a principle that’s at stake, and it is a desire to serve that principle that ends up consciously or unconsciously leading your persuasive target to search for the information that supports their desired conclusion. People will decide rationally, as Jonathan Haidt (2001) observes, but emotions will come first. We will gravitate toward the conclusion we want to reach much more effectively, so your persuasive strategy should include not just an analysis of the reasons and the evidence, but should begin with an appreciation of the motivations that end up driving the evaluation of both. Rather than being a ‘black box,’ Haidt (2012) and his colleagues at the University of Virginia have discovered that motivations tend to group along five general themes that I’ve previously described and applied to legal persuasion: care or harm, fairness or cheating, loyalty or betrayal, authority or subversion, sanctity or degradation. Our brains are primed to anticipate and react to these dualities, and every legal case story will tap into one, or probably more of them. This focus on motivation, rather than just telling your persuasive target what they already want to hear, also works to change even hard-core positions. For instance, I’ve also written about the Yale Cultural Cognition Project, including studies (e.g., Kahan et al., (2007) showing that even denyers of climate change science can be convinced to soften their views if new information is delivered in a framework they can appreciate (e.g., “climate change is a reason for the government to lay off regulations on the nuclear power industry”). In this case, the target participates by supplementing what they already support (less regulation or nuclear power) with something that is positioned to appear consistent (climate change). That sets off a process that feels like self-persuasion and, as I’ve noted, the research also shows that self-persuasion tends to be the most effective form (Brinol, McCaslin & Petty, 2012).
Visual. There is one additional way your persuasive target will participate in their own persuasion: They’ll picture it. Whether you use sophisticated graphics, simple drawings, or no imagery at all, your audience is still relying on mental images in order to decide what is better and what is worse. As I’ve written before, researchers have shown that our ability to picture an event mediates our moral judgments about that event (Amit & Greene, 2011). Litigators supply the arguments and point jurors to the right evidence, but ultimately the fact finders are the ones fashioning, in their own heads, an illustration of what probably happened and what ultimately could happen as a result of their verdict. That is how they participate: by supplying their own visual track to accompany the logical track that’s playing within the courthouse. This shines a new light on the reasons for using imagery in your presentation. Instead of just serving as a nice way to spruce up your presentation and illustrate a handful of points, a litigator’s use of graphics is nothing less than a battle for the perceptual real estate of the fact finders. Whenever you are not using imagery as part of message, you are ceding control. This potentially provides an explanation for the results of Persuasion Strategies’ own study showing that an approach that immerses the fact finding audience in continuous use of graphics (by using an imagery-oriented PowerPoint presentation, for example), litigators are able to improve comprehension, to compare more favorably to the other side, and make their key points more memorable.
The bottom line is that your persuasive targets are not objects. They aren’t just barriers to your persuasion, they’re subjects in their own persuasion. They don’t just receive a message and accept it, and they don’t even receive a message and then react. Instead, they participate in a way that is free, flexible, motivated and visual.
Other Posts on the Science of Decision-Making:
- Prime Your Jury for Moral Judgment
- Cut Through the “Stickiness” of Prior Beliefs
- Beware of TMI: More Information Doesn’t Lead to Better Decisions
Amit E, & Greene JD (2012). You see, the ends don’t justify the means: visual imagery and moral judgment. Psychological science, 23 (8), 861-8 PMID: 22745347
Brinol P, McCaslin MJ, & Petty RE (2012). Self-generated persuasion: Effects of the target and direction of arguments. Journal of personality and social psychology, 102 (5), 925-40 PMID: 22352326
Carpenter, Christopher J. “A Meta-Analysis of the Effectiveness of the “But You Are Free” Compliance-Gaining Technique.” Communication Studies 64.1 (2013): 6-17.
Haidt, J. (2012). The righteous mind. Why Good People are Divided by Politics and Religion (Allen Lane, 2012).
Haidt, J. (2001). The emotional dog and its rational tail: A social intuitionist approach to moral judgment. Psychological Review, 108(4), 814-834 DOI: 10.1037/0033-295X.108.4.814
Iyengar, S. (2010). The art of choosing. Twelve.
Jack AI, Dawson AJ, Begany KL, Leckie RL, Barry KP, Ciccia AH, & Snyder AZ (2012). fMRI reveals reciprocal inhibition between social and physical cognitive domains. NeuroImage, 66C, 385-401 PMID: 23110882
Kahan, D.M. et al. (2007). The Second National Risk and Culture Study: Making Sense of—and Making Progress In— the American Culture War of Fact Yale Law School, Public Working Paper, 154
Van Bavel JJ, Packer DJ, Haas IJ, & Cunningham WA (2012). The Importance of Moral Construal: Moral versus Non-Moral Construal Elicits Faster, More Extreme, Universal Evaluations of the Same Actions. PloS one, 7 (11) PMID: 23209557
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