Tag Archives: litigation consulting

February 18, 2013

Persuade With Participation, Part Two: Learn from Modern Cognitive Science

By Dr. Ken Broda-Bahm: 

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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. 

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Other Posts on the Science of Decision-Making: 

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References

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

Photo Credit: jepoirrier, Flickr Creative Commons 

February 4, 2013

Prime Your Jury for Moral Judgment

By Dr. Ken Broda-Bahm: 


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Formally, a legal case creates a situation calling for a factual judgment combined with a legal judgment. At a more basic level though, it calls for a moral judgment. It’s not necessarily the kind of morality we associate with religion or high philosophy, but the kind we apply practically in daily life decisions of what is good, what is bad, what is better, and what is worse. Even in the most boring of commercial cases there is a dimension of good versus evil to the decision that jurors are being asked to make. As I’ve written previously, there are aspects of the situation, the story, or the imagery that can alternately elicit or inhibit that moral tendency, depending on the appeal. In other words, instead of gearing persuasion to whether the audience is highly moral or not, it’s better to think about what message elements will move the moral tendency in any target to the background or to the fore. 

On that score, there is a recent study Young & Durwin (2013) that should prove interesting to litigators and other practical persuaders. Two Boston College psychologists, Liane Young and AJ Durwin, conducted an experiment showing an ability to substantially influence moral decision making by asking just one priming question. Because lawyers in trial will often want to induce a moral frame of mind, or inhibit one, it is worth taking a look at how these two researchers were able to do it in a simple, practical and measurably successful way. This post takes a look not only at the research and the morality-producing question, but also at the larger role of situational and rational elements in moral judgment as it applies in law.

Morality is Situational…

There has been a great deal of interest within the field of psychology in this concept of “priming” or using specific cues to induce a specific response. One frequently-referenced study, for example, showed that when research participants were asked to rearrange words like “bingo,” “Florida,” “knits,” “wrinkles,” “bitter” and “alone” into meaningful sentences, they adopted the associated behaviors of being old and actually walked more slowly as they left the experiment. Some of this research has been controversial in the sense that its proven difficult for other researchers to replicate. Much of the disputed research, however, has to do with what I’ll call “irrelevant priming” in the sense that exposure to words about being old really shouldn’t influence your own walking speed. But in the case of Young and Durwin’s (2013) study, the prime is definitely a relevant one: It is easier to understand why a question about moral judgment would influence a moral judgment your target is about to make.
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So here is what the researchers did (and a full text is available here). They started with the idea of “moral realism,” or the tendency to treat morality as objective fact or mathematical truth, and contrasted that with “anti-realism,” or the tendency to see morality in relative or cultural terms. They wondered how each of these different priming concepts would fare in a situation in which research participants are being asked for donations. Conducting two studies (one in person and one online), they solicited the research participants to donate to a cause. But before asking, they primed the participants with a moral realism question, (“Do you agree that some things are just morally right or wrong, good or bad, wherever you happen to be from in the world?“), a moral relativism question, (“Do you agree that our morals and values are shaped by our culture and upbringing, so there are no absolute right answers to any moral questions?“) or a neutral question. The questions were leading by design, and participants answered “yes” the vast majority of the time: 195 out of 200 respondents in the online experiment, for example.
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Those primed with a anti-realistic message donated about as much as the control group receiving the neutral message. Those primed with the message of moral realism, however, were twice as likely to be donors. So whether you personally think of morals as absolute or relative, it works to remind decision makers of the absolute perspective if you are looking for a moral judgment from them. “Priming moral reasoning,” the authors conclude, “may prime empathetic or collectivist attitudes.” So when a case presents a choice between a moral and a pragmatic frame, litigators want to ask, what moves jurors to the right frame? Priming can be part of the answer.

  …But Still Rational

Lest we think that persuasion is nothing but finding the right cues and emotional primes, however, reason still plays an important role. Author of The Righteous Mind, Jonathan Haidt is probably the figure most known for supporting the thesis that moral judgment is fundamentally emotive in its core. He’s done much to establish this principle that applies quite well to litigation: Something must “feel right” before we’re motivated to look for, understand, and remember the reasons why it is right. 

But that doesn’t mean that rationality plays no role, and particularly in a legal context. One thing I like about Jonathan Haidt is his affinity for good metaphors. He sat down recently for a conversation with Social Science Bites (that last word is intended as a noun, I believe, not a verb), and he ran through a number of the analogies he has used in his writings to explain the relationship between the rational and emotional modes of moral judgment: 

  • The Emotional Dog and its Rational Tail” (Haidt’s first review article in Psychology Review in 2001). The point is that intuitions drive reasoning, not the other way around. 
  • The Rider on the Elephant” (from The Happiness Hypothesis). Our conscious verbal-based mental process is like the rider, attempting to control but largely at the mercy of the much greater emotional and motivational component of processing — the elephant. 
  • The Chimpanzee and the Bee” (from The Righteous Mind). “We human beings are products of individual-level selection, just like chimpanzees, that makes us mostly selfish, and we can be strategically altruistic, but we have this weird feature which is that under the right circumstances, we love to transcend ourselves, our self-interest, and come together like bees in a hive.” 

All three metaphors should carry meaning for litigators who may at times overestimate a juror’s ability to resolve a case on purely rational terms. But the message isn’t to discard the rational approach either. Cutting across all three metaphors is the idea of a duality: There are two parts. One may be dominant, like the elephant, or more active, like the tail wagging the dog, but neither is missing, reminding us that reasoning isn’t purely emotive but always contains a reason-generating and reason-giving component. And much like the bees versus the chimp, sometimes that rational component may be more important within a certain collective situation.

Deliberations seems clearly to be one such “bee” situation. We see it frequently, but especially after remarkable verdicts like that of the Casey Anthony trial. There is a perceived nobility in transcending passions, setting aside persuasion, and focusing on facts, evidence, and burdens. While people may disagree with the result, the belief that one is taking on a temporary identity and stepping away from common passions is not far from what the system is supposed to be. The important point to remember though is this: The motivation tends to come first and the reason-giving follows. 

So Use Your Communication in Trial to Create Rational-Moral Situations

So knowing that moral judgment is simultaneously an emotive response to situational cues as well as a rational conclusion supported by reasons in the unique situation of legal deliberation, what does the practical litigator do with that information? Let me suggest a few things:  

One, use a priming question in voir dire. When you believe that your side will benefit from the moral “good versus evil” frame of mind, consider asking your venire a priming question, using the version the experimenters used above, or one that is more specifically suited to the morality at issue in your case. 

Two, use priming questions in opening statement. In opening, of course, you can’t actually ask and jurors can’t actually answer, but the use of rhetorical questions can be ideal for tacitly engaging jurors and encouraging them to think within a specific framework. 

Three, use priming in cross-examination. Creating good moments in cross-examination is like volleyball: There is the set, and then the spike. This research gives us another way to think about the perfect set up in cross: it serves to prime the witness and the listeners to a certain mindset that makes the desired response more salient and more likely. 

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Other Posts on Moral Judgment: 

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ResearchBlogging.org Young, L., & Durwin, A. (2013). Moral realism as moral motivation: The impact of meta-ethics on everyday decision-making Journal of Experimental Social Psychology, 49 (2), 302-306 DOI: 10.1016/j.jesp.2012.11.013

 

 

Image Credit: Opensourceway, Flickr Creative Commons (Altered by Nick Bouck, Persuasion Strategies)

January 21, 2013

Don’t Pull the Plug on the American Civil Jury Just Yet

By Dr. Ken Broda-Bahm: 

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There is a body lying on the pavement. It is still twitching a bit, but fading fast. “This was no accident,” says the hard-boiled detective, “this was an attempt at premeditated murder…and it just might succeed.” If instead of “body” we’re referring to the American civil jury, and instead of “hard-boiled detective” we’re referring to a new article in the Yale Law Journal, then the scenario is roughly the same. The analysis, from Yale legal history professor John H. Langbein (2012), notes the dramatic decline in civil trials (now down to two percent of all case conclusions in federal courts and less than one percent in state courts), and ties that trend to a movement from a pleadings-based system in which facts were resolved in trial, to a discovery-based system in which facts are resolved not before trial, but largely without trial. This, Langbein argues, is a consequence of the 1938 Federal Rules of Civil Procedure and the civil jury is fading by design, if not by intent, because the reforms have largely worked. In other words, the American jury didn’t fall, it was pushed.

While these rumors of the civil jury’s impending death may not be greatly exaggerated, they may yet be premature. This is particularly true if we are focusing on the role of popular judgement at a level that is somewhat broader than the formal jury as we have historically conceived it. By expanding our focus a bit in order to account for the potential jury, the expanding use of the mock jury, as well as potential new models such as California’s expedited jury, there is still the chance that the legal vox populi might live to play a role in the future.

The Late Great Civil Jury? 

For fans of the American jury system as well as those who work within it, Professor Langbein’s article is a sobering read. Like many other commentators, he notes the sharp and accelerating decline in jury trials, noting that “we have gone from a world in which trials, typically jury trials, were routine, to a world in which trials have become ‘vanishingly rare.'” Unlike other commentators, however, he doesn’t link that decline primarily to the increasing costs of litigation or to the case management orientation of judges. Instead, he views the trend in more systemic terms. Noting that prior to the Federal Rules, trial was often the only way to accurately discover the facts of the case, he argues that the Rules have largely replaced “discovery by trial” with “discovery instead of trial.” While the focus is on what is called “pretrial procedure,” in practice, Langbein notes that it really amounts – in more than 49 cases out of 50 cases, to “nontrial procedure” instead. Based on a review by two Omaha attorneys (Domina & Jorde, 2010), “trial, and particularly trial by jury, is the least-used dispute resolution methodology in America.” Even as the Federal Rules have formally preserved the right to a trial, they’ve also created the conditions in which litigants find it unnecessary and often counter-productive to exercise their right to a trial. Citing Emerson’s ‘build a better mousetrap’ adage, Professor Langbein concludes “The Federal Rules built a better mousetrap: a civil procedure centered on pretrial discovery. Litigants no longer go to trial because they no longer need to.”

Even as every legal organization imaginable has created committees and task forces aiming to save the American jury, the systemic factors that Professor Langbein documents seem destined to persist. That doesn’t, of course, mean that the civil jury will soon, or even eventually, go away. Trials will continue, but those that make the cut are likely to become more and more unusual: cases that are higher stakes and cases that carry some kind of atypical barrier that has made settlement difficult or impossible. And as the matters that go to trial become less representative of cases overall, they’re also less able to serve as examples for the preponderance of disputes that are bound for settlement.

So, that raises a practical question for the great majority of cases that settle out of court: What is the benchmark? The case will settle based on something, and hopefully it is neither an arbitrary point between demand and offer, nor the equally arbitrary point at which the parties simply reach exhaustion. Facing the decline of the conventional civil jury, a future for popular adjudication may lie in finding innovative ways to create that benchmark.

A Continuing Role for Popular Adjudication

Even for those cases that will involve no ultimate jury, there is still a role to be played by the broader notion of public judgment.

1. The Potential Jury as Benchmark

Relatively few cases involve an actual jury, but a far larger proportion still involve the role of a potential jury. This includes all cases in which one side or both are preserving their right to a jury as an option. Like a silent party to the negotiations between the plaintiffs and defendants, the perception of what a jury in the venue would do if it heard the case exerts a strong pull on strategic positioning, case assessment, and settlement offers. The diminishing supply of actual comparison verdicts coming out of the courts provides a reason for attorneys to turn to specialists, and consultants are likely to increasingly fill that role.

2. The Mock Jury as Test

Particularly when dealing with larger or more complex cases, it has become the “standard of care” for a mock trial to be conducted prior to settlement, providing an opportunity for specific assessment to serve instead of subjective judgment. Using three or more juries composed of randomly-recruited citizens from the venue, a mock trial  exercise provides a foundation for case risk assessment and often for a settlement offer.  Frequently when a project concludes, the mock jurors will ask, “Is it possible for you to let us know what happens when the real jury hears it?” The correct answer is always, “No, we aren’t going to contact you again,” but what I often want to say is, “In all likelihood, you were the real jury…or at least as real a jury as this case will ever see.” And, if you think about it, that isn’t necessarily a bad thing: Whether the state calls in actual jurors or we recruit mock jurors, the case still gets its day in ‘court,’ of sorts, and still benefits from the leveling influence of popular judgment.

3. The Expedited Jury as Reality

One example of the actual court system appearing to draw inspiration from the mock trial method is California’s relatively recent experiment with a simplified and shortened format designed to preserve the option of a formal jury for a class of cases.  In 2010, the state legislature passed the California Expedited Jury Trials Act, creating an option that parties could enter into through mutual agreement: A one-day trial with stipulated exhibits and evidence, no appeal or post-trial motions, a jury of 8 citizens with no alternates, and a binding result subject to a high-low agreement. While the model has, up to this point, been used mostly with lower value cases like automobile accidents, the early responses to the method have been quite positive. Users participating in a recent survey (Cheng, 2012) “were very satisfied with their experience, and lauded it for its ability to reduce time and monetary costs for their clients and themselves.” There is no reason that this model or something similar couldn’t be applied to larger cases, and also no reason that mediators shouldn’t simply adopt the approach as part of a private dispute resolution process. As we’ve suggested before, if what is preventing an early settlement is the existence of differing perceptions of what an actual jury would do, why not bring in a mock jury in order to serve as that additional source of information or reality check for the parties and the mediator?

Back in the intensive care ward, the patient – the American civil jury – still isn’t looking so good. The formal role played by average American citizens in resolving civil disputes, unique among countries, definitely had a good run. But now it seems to be swiftly shifting into another role, focusing on fewer and less typical cases, as well as alternate avenues of influence. As the broader dispute resolution system adapts, it appears cautiously possible that a meaningful role for popular judgment will survive.

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Other Posts on the Role of the Jury: 

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Cheng, Y. (2012). A Law and Economics Approach to the California Expedited Jury Trials Act. Legal Studies Honors Thesis. University of California, Berkeley. http://legalstudies.berkeley.edu/files/2012/06/Cecilia-Cheng-Sp12.pdf

Domina, D. A. & Jorde, B. E. (2010). Trial: The Real Alternative Dispute Resolution Method. Voir Dire, Fall/Winter. http://www.dominalaw.com

Langbein, J. H. (2012). The Disappearance of Civil Trial in the United States. 122 Yale Law Journal 522. http://yalelawjournal.org/the-yale-law-journal/article/the-disappearance-of-civil-trial-in-the-united-states/

Photo Credit: RembergMedialimages, Flickr Creative Commons

December 20, 2012

Use Mental Images to Sway Moral Judgment

By Dr. Ken Broda-Bahm: 

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Over the past week, the phrase “beyond words” has been a common way of describing the nation’s reaction to the murder of 20 young children and six adults at Sandy Hook Elementary School in Connecticut. In a way, it is literally beyond words, because what dominates our thoughts is the mental image of a class of terrified first graders killed in a spray of bullets from a semi-automatic assault rifle. In the days following this tragedy, there are noticeable differences that we didn’t see in the public’s responses after the Aurora, Colorado theater shooting, or the attack on Congresswoman Gabrielle Giffords (both of which we’ve discussed in this blog). In each of those incidents, the killings were followed by expressions of shock from public officials, as well as by somewhat vague commitments to work toward greater levels of public safety. Following the Sandy Hook killings, however, there is a palpable “enough is enough” reaction that appears to be backed up by a much greater public willingness to consider policy alternatives. Recent polling even suggests an attitudinal shift in the wake of last week’s tragedy, and already the Vice President has been asked to lead a new Gun Violence Task Force with the mission of crafting legislative proposals by next month. 

If the reaction lasts, Sandy Hook may become a watershed moment in the country’s judgment on the place of guns in society, particularly the role of highly lethal military-style assault weapons. But those who work in the realms of public attitudes (including social scientists and attorneys) might wonder, why is it different this time? Clearly, the deaths of so many very young children are responsible for much of the psychological shift. But it isn’t just a logical or even an emotional response to the tragedy that drives us — it is a visual response. Based on a recent study on moral judgment (Amit & Greene, 2011), our ability to picture an event mediates our moral judgments about that event. Events which are more likely to be pictured are more likely to result in severe moral evaluations. Persuaders, in other words, need to be concerned not just with reasons, and not just with feelings, but with the picture they create in the minds of listeners. This post will take a look at the study and offer a few thoughts on trial attorneys’ efforts to visualize the case story. 

Picture This: Moral Judgment

As covered in a recent story on NPR, this line of research relies on short scenarios. As told by Harvard psychologist Joshua Greene, here is one: 

A trolley is headed toward five people, and the only way you can save them is to hit a switch that will turn the trolley away from the five and onto a side track, but if you turn it onto the side track, it will run over one person.

In response to that story, most participants will make the uncomfortable but utilitarian choice to turn down the side track and kill one person, saving five. But consider another version of the story: 

This time, you’re on a footbridge, in between the oncoming trolley and the five people. And next to you is a big person wearing a big backpack. And the only way you can save those five people is to push this big guy off of the footbridge so that he lands on the tracks. And he’ll get squashed by the train; you sort of use him as a trolley stopper. But you can save the five people.

If we apply the same logic from the first scenario, there’s no change: The large backpack fellow goes off the bridge, one dies, and five are saved. But that isn’t what people do. Most opt not to push the person next to them, and instead doom the five. There is an emotional difference, of course, because pushing people to their death feels different from just flicking a switch, even if the result is the same. But Greene and research colleague Elinor Amit thought something else was at work: The way we picture the dilemma matters. “A switch” is abstract, but the set up involving the foot bridge, the tracks, and the large person with a backpack call for, or even require, visualization. In that case, it could be the picture that makes the difference. “Emotional responses don’t just pop out of nowhere,” Greene explains to NPR, “They have to be triggered by something. And one possibility is that you hear the words describing some event, you picture that event in your mind, and then you respond emotionally to that picture.”

To test that theory, Greene and Amit (2011) conducted an experiment. First they provided research participants with moral dilemmas and found that, as predicted, they evoked strong mental images which in turn led to moral judgments. In addition, those who were most likely to think visually were also most likely to make emotional moral judgments. But to take it one more step, the researchers decided to add a trick: They distracted people during that task by asking them to visualize something unrelated instead. Once it became harder to “see” the dilemma, the participants were less likely to make emotional decisions. Instead, the inability to visualize led them back to the simple and logical utilitarian method of calculation (like story one above). 

Providing further explanation of these results in the NPR interview, Elinor Amit contrasts one additional scenario: a drone strike on a target, or a terrorist ax murder in a bus. In the bus attack, “The story produces a movie in our heads. We can see blood everywhere. We can hear people screaming. We don’t have to think at all. It feels terribly wrong.” In the drone attack though, we might see “a missile hurtling toward a target. At the center of the crosshairs, an explosion. There’s dust billowing everywhere.” The ax attack is likely to be less lethal but more pictorial. In contrast, at least based on what we’re likely to see of it, the drone strike is somewhat abstract. And drone strikes, even when they kill civilians, are more likely to be supported than terrorist attacks. 

The implication is one that is critical for persuaders: We are simply more likely to be moved by what we can easily picture.

So what pictures are you creating? 

For legal persuaders, a lot can hang in the balance. How do we frame the controversy so that fact finders are likely to make the most favorable moral judgments?  I’ve written previously that case stories require visualization, and the stories that are more easily seen are also more likely to be viewed as true. But when visualization is used as a strategy to influence moral judgment, there are two different paths we can take in completing the picture. 

1.  Negative Visualization. This means creating a picture of the evil that you are trying to respond to or avoid. This is a critical component of the “Reptile” perspective counseling plaintiffs to frame their case in order to position the defendant’s actions as a threat to jurors’ own safety and the safety of others. While there are reasons to doubt whether this works by appealing to jurors’ primitive reptile mind, it is powerful nonetheless to paint a picture of a danger that your fact finders will want to address through a verdict: a faulty product that continues to wreak havoc, or a future patient put at risk. 

2.  Positive Visualization. While negative visualization can create action by tapping into fear, it is also possible that fear can lead to denial or avoidance (if the threat is too great). An alternative is to visualize the positive: the safer product, now on the market and protecting its users; or the patient who who is in better hands with great prospects for improved health. Taking an idea from the study reported above, one defense strategy in responding to a case in which there is already a dominant negative mental picture is to encourage jurors to visualize something else, something more positive. As we’ve written before, the positive message can be more effective in many situations. Similarly, a positive image can serve as a greater motivator in telling your decision maker what they are voting for and not just against.   

Of course, one strategy is to use both: contrasting mental images in order to move jurors from a very bad picture to a better picture. That contrast is what we understand as progress. In the wake of the Sandy Hook shootings, that could be what the public is looking for as well.   

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Other Posts on Imagery: 

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ResearchBlogging.org

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

 

 

Image Credit: FFFFound.com

December 17, 2012

Respond to the Reptile

By Dr. Ken Broda-Bahm: 

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Before a recent presentation, I was chatting with a Texas medical malpractice defense attorney when she shared the following: 

Plaintiffs’ lawyers have changed. They’re all talking about “safety” now, and that word is finding its way into every deposition: “What is the safe procedure?” or “What would’ve kept Mrs. Johnson safe?” They’re all talking about safety and security instead of standard of care.

I replied, “Oh, that is the Reptile.” She hadn’t yet heard about the popular book by David Ball and Don Keenan, so I explained, it’s a theory for trying plaintiffs’ cases by portraying the defendant’s conduct as a threat to jurors’ own safety and the safety of others. By framing arguments in terms of our most biologically basic need for security, the theory goes, plaintiffs are able to successfully tap into jurors’ primitive or “reptile” mind. And when the Reptile decides, our conscious mind and reason-giving ability follows. Based on that unifying concept, the perspective has taken the plaintiff’s bar by storm, spinning off more books as well as frequent trainings. “Cases are not won by logic,” they write, “you need to get the Reptile to tell the logical part of the juror’s brain to act on your behalf. To get the Reptile to do that, you have to offer safety.”

Since its introduction in 2009, there has been only limited response from the defense bar, and some of these responses have taken on the theory on its own terms – terms that appear to rest on some questionable assumptions, particularly in light of a recent Scientific American piece. So this post offers a short defense manifesto, so to speak, recommending three steps for a defense response to this trend.   

But first, one quick disclaimer is in order. My intent isn’t to add just another comment to the others (here, here, or here) claiming that the Reptile perspective is legally inappropriate, unethical, or ineffective. Indeed, the enthusiasm of its adherents, as well as its record of application in court, speaks volumes about its effectiveness. Despite what some critics might warn, the Reptile isn’t some radical new toxin introduced into our court system. Instead, it is a new way of thinking about some very old ideas in communication. Accordingly, it calls for a thoughtful response. 

For defendants looking at the prospect of the other side increasing their effectiveness by appealing to the survival instincts of the reptile brain, here is what I’d suggest.   

Step One: Strip Away the Brain Baggage

A central support for the Reptile approach is the “Triune Brain” theory, as Ball and Keenan acknowledge in the foreword to their book. The notion is based on the work of the neuroscientist Paul MacLean, who theorized in the 1960s that there are three discrete parts to the brain reflecting the stages of evolution: a reptilian complex at the core of the brain (primitive and survival-based), a paleomammalian complex located in the mid-brain (focused on emotion, reproduction, and parenting), and a neomammalian complex at the top (capable of language, logic, and planning). But it is that basic reptile level, the theory goes, that drives our behavior, and even when we think we are acting based on the language and the logic of our neomammalian brains (e.g., in deliberation), we are unknowingly responding to the commands of the reptilian brain. “The Reptile invented and built the rest of the brain,” Ball and Keenan write, “and now she runs it.” 

This perspective on brain structure is an important part of what makes Ball and Keenan’s perspective new. The message is that since the Reptile is in control of our thinking, our persuasion needs to tap into the only things that waken and motivate the Reptile: safety, security, a freedom from threats. That is what makes the approach unique and powerful at a level that goes beyond reason-giving and is essentially precognitive. So Ball and Keenan are offering plaintiffs’ lawyers a kind of magic button to engage the most powerful persuader imaginable. Some defendants have taken note. Attorney Mark Bennett, for example, wrote in a blog post entitled “Lizards Don’t Laugh,” that civil defendants can try to a) make a stronger appeal to the reptile brain, or b) disengage the reptile brain, and engage the dog brain or the ape brain.” He goes on to suggest that laughter, by creating incongruity and relief, gets the jury out of their reptile minds, creating the possibility for at least a “Simian Trial.” 

The problem with all of this is that the idea of the “reptile brain” is more figurative than literal. “The theory,” as science writer Ben Thomas notes, “has proven outright insane in light of the latest scientific research.” In a recent blog piece invited by Scientific American, Thomas highlights the so-called reptile brain as an example of the popularization of dubious science. “The Triune Brain idea holds a certain allegorical appeal: The primal lizard – a sort of ancestral trickster god – lurking within each of us,” Thomas writes, “But today, writers and speakers are dredging up the corpse of this old theory, dressing it with some smart-sounding jargon, and parading it around as if it’s scientific fact.” Looking at MacLean’s “reptilian complex” referring to the bundle of nerves at the base of the brain called the basal ganglia, for example, Thomas notes that this was only called “reptilian” because biologists in the 1960s believed that the forebrains of birds and reptiles were made of basal ganglia. But it turns out they aren’t. In addition, the idea that these sections of the brain could operate more or less independently like three brains, also hasn’t held up in the face of modern neuroscience, because the brain tends to operate as a unified whole. 

In light of Thomas’ critique, Ball and Keenan’s Reptile perspective stands out as illustrating scientific beliefs that persist more because they are useful than because they are valid. It persists and sticks not because there is strong evidence that it is true, but because it feels “complete” and has, as Stephen Colbert would put it, “Truthiness” independent of its truth. The idea that our persuasion is controlled by a reptile mind, as Thomas notes, “makes a weird kind of intuitive sense. We’re bundles of instincts and inhibitions and desires that don’t fit neatly together. It’d be comforting, in a way, if we could pin those conflicts on little lizard brains.” But saying that persuasion isn’t controlled by a reptilian underbelly is not the same as saying that our brains are logical, analytical, and predictable either. They’re not. Instead of one neat and simple driver of decisions being found in the survivalist reptile, we need to continue to look at the more complicated picture of behavioral drivers that are nuanced, individual, and situational. 

Step Two: Recognize that What is Left is Different, But Still Valuable

So what is the Reptile theory without the part about the reptile brain? It is a practical perspective that is as good as its results. Independent of the doubtful neuroscience, the ability to make one’s case stronger by applying Ball and Keenan’s advice is what matters. As the Los Angeles plaintiffs’ attorney Sonia Perez Chaisson put it succinctly in The Jury Expert“We care not at all about brain anatomy and solely about whether the Reptile works.” 

And by all indications, it works. But it most likely works not because its adherents have found a way to communicate directly the fact finders’ primitive reptile brains, but simply because attorneys are recognizing that motivation exists and picking a very strong motivation to speak to. Instead of applying the rational-legal model of jurors reasoning their way to a conclusion by applying the law to the facts and deducing to a verdict, the Reptile practice forces attorneys to speak to what would make jurors care about the verdict. The principle of motivated reasoning is that once jurors, or any other decision makers, know what decision they want to reach, then they’ll have no problem coming up with reasons to support that conclusion. The decision comes first and the reasons are filled in later. So, once you identify the motivation and tie that motivation to your case, you are more than halfway there. If you excise all of the brain-speak from Ball and Keenan’s book, I read them as saying, “Speak to the motivator. Make it an individual motivator, and make it an important motivator.” Whether that motive is attributed to the brainstem or to the neocortex matters not a bit. 

Step Three: Find Your Own Motivation

A central part of Ball and Keenan’s argument is that the Reptile approach is a tool that helps one side, not the other. “The Reptile prefers us,” meaning plaintiffs, “for two reasons: First, the Reptile is about community (and thus her own) safety – which, in trial, is our exclusive domain. The defense almost never has a way to help community safety. The defense mantra is virtually always, ‘Give danger a pass.’ Second, the courtroom is a safety arena,” they write, “so when we pursue safety, we are doing what the courtroom was invented and maintained for.” Defendants might quibble that the more limited purpose of the court is to resolve the claim before it, and not to broadly enhance society’s safety with each verdict. But at the level of personal injury, product, and medical malpractice suits, Ball and Keenan do have a point in emphasizing that it is often easier for the plaintiff to invoke safety than the defendant, except in those cases where the defendant’s own conduct is the more salient source of the danger.

But remember, the part of the theory that says, “safety is all that matters” is also the part that is based on the dubious “Triune Brain” theory. Security may be a very powerful human motivator, but once we’re freed from the reptile analogy, it is far from the only human motivator. Smart defendants will tie their own case to a powerful principle that is at stake: responsibility, innovation, or fairness. It can even be a strong appeal to empower jurors to resist the pull of an emotive safety-based verdict, and instead base their decision on evidence, science, and facts. Even within the assumptions of the Reptile perspective, there is one source of insecurity that can be hung on a plaintiff’s case: The idea of being manipulated can be very threatening. In one of Don Keenan’s Georgia trials in 2010, for example, the insurance defense counsel called out the Reptile strategy by name, and previewed what Keenan was likely to do in closing. Just like any other strategy, it becomes less effective when it is known and named. 

It is all but certain that plaintiffs’ lawyers will continue to talk about safety. And there is good reason for that. Recall the unimaginably sad event this past Friday: Another mentally ill gunman with access to military-style weaponry, this time killing twenty children aged six and seven, along with seven adults. It is impossible to think about a tragedy like that without feeling an insecurity and a lack of safety surrounding your own loved ones, your own children. That is a powerful response, and this time it seems, it is powerful enough to be pushing aside the “now is not the time” line regarding discussions of this country’s response to guns and mental illness. You don’t need to invent a reptilian subculture of the mind in order to understand that motivation and to see that empathy sometimes takes the lead.  

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Other Posts on Motivation: 

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Ball, D. & Keenan, D. (2009). Reptile: The 2009 Manual of the Plaintiff’s Revolution. Balloon Press. 

Thomas, B. (2012). Revenge of the Lizard Brain. Scientific American (Blog), September 7th: URL: http://blogs.scientificamerican.com/guest-blog/2012/09/07/revenge-of-the-lizard-brain/

Photo Credit: Chodhound, Flickr Creative Commons

November 15, 2012

Consider a Blind Expert Witness

By Dr. Ken Broda-Bahm: 


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Justice may be blind, but hired experts can see pretty darned
well in our litigation system. No, a responsible expert won’t lie
in order to support their client. But yes, a knowledge of who the
client is can’t help but have at least a subtle influence on the
resulting testimony. But that is our adversarial system, right?
Both sides hire the best they can find who are willing to support
their theories, and the two sides fight it out, aided by
cross-examination and a skeptical and attentive jury. That is the
idea, but in practice, there are a few problems with that model.
For one, the adversarial model can end up elevating the value of
the less common expert opinion to the point that a view that,
maybe, only one in a hundred experts would sign on to becomes one
of only two expert opinions presented in court. For another, the
jurors themselves may be desensitized by the knowledge that all
parties are paying for their opinions and simply decide to set
aside the “hired guns” and figure things out on their own. Yet a
third problem is the effect that this model has on the experts
themselves: Academics who are used to following the facts
wherever they lead, without prejudgment or bias, are
uncomfortably thrust into an adversary system and find themselves
working not wholly for the truth, but in order to advance their
client’s case.

Of course, all that shouldn’t be taken as a statement that
experts as a class are dishonest. That isn’t what I’m saying.
I’ve worked with many experts, and to a person they’ve been
honorable and careful women and men who understand that they
cannot mislead the jury and cannot risk being seen as just
another lawyer. But they also cannot take their eye off the
ultimate purpose of their testimony and the reason they were
hired. It is fair to wonder if there’s another way. According to
one model, proposed in a 2010 article in the New York
University Law Review
(Robertson, 2010) and recently tested in an
experiment published in a forthcoming edition of the Journal
of Empirical Legal Studies
(Robertson & Yokum, 2012), there is a
simple solution that would improve both the accuracy and the
credibility of expert testimony: blind experts. No, I don’t mean
hiring Stevie Wonder as your expert witness, I mean
employing a system that keeps the expert blind to the identity of
the client until the initial report is completed. The idea has
implications for how you might think about your experts now and
in the future, so this post will explore that idea. 

The Idea: Blind is Better

Christopher T. Robertson, a law professor at Harvard University
and the University of Arizona, proposed the idea two years ago in
an article simply entitled “Blind Expertise” (Robertson, 2010). The piece provides a
comprehensive examination (for cheaters, a Readers’ Digest
condensed version is available here) of the benefits and the implementation of
a system that would allow parties to employ experts who are
initially blind to the party they’re working for. The following
is what Robertson proposes:  

  • If they wish, parties would contact an intermediary
    organization. Members of that organization, also blind to the
    identity of the party, would then select from a pool of
    prequalified experts based on criteria provided by the
    party. 
  • The hired expert would learn about the case via a screened
    set of materials and, without knowing the identity of the hiring
    party, would draft the preliminary expert report laying out the
    main conclusions. 
  • If the conclusions are not helpful to the
    hiring party, that party would simply pay and walk away. The fact
    that a blind expert was consulted would not be subject
    to discovery. 
  • If the conclusions are helpful, on the other
    hand, the blindfold would be lifted and the expert would be able
    to testify not only about their conclusions, but also about the
    process and the fact that their initial report was produced under
    blind conditions.  
  • In the event that a party chooses to use a blind witness,
    that party would need to disclose all prior blind witness
    arrangements (to prevent the party from trying multiple times
    until they get a ‘hit’ with a blind expert). 
  • Nothing would prevent either party from hiring a paid expert
    instead of or in addition to the blind expert. 

The benefits of using initially blind experts in this manner,
according to Robertson, is that their opinions are more likely to
be consistent with the scientific mainstream, more comfortable
for the experts themselves, and more likely to be viewed as
credible by jurors.   

The Study: Blind is More Credible

To test the result of blind experts on jurors’ views of expert
testimony, Robertson and University of Arizona Colleague David
Yokum (Robertson & Yokum, 2012) conducted
an experiment using 275 mock jurors. The national sample reviewed
video recordings of a 35-minute staged medical malpractice case
with experts on each side testifying on the question of liability
in a failure to diagnose a case. Participants were randomly
assigned to conditions in which either the plaintiff or the
defense expert (or neither, in the control condition) was
identified as a blind expert, and the researchers also varied
whether jurors did or did not receive a special instruction from
the judge telling jurors that they “may,” based on the method,
consider a blind expert to be more credible. 

The researchers found that, even without that special
instruction, the blind expert was significantly more credible and
significantly more persuasive. When all other aspects and facts
in the case and the content of the opinions were kept the same,
the use of a blind expert doubled the odds of a favorable verdict
and significantly increased damage awards for the plaintiff, or
decreased damage awards for the defense, by over $100,000 dollars
in each case. 

And remember, that is when there is no change to the content of
the testimony, other than the description of the blind procedure.
It is also quite conceivable that a blind witness would perform
better because they would be more confident, would feel more
unbiased, and could come across as more of a teacher and a “third
voice” in the litigation. These traits could heighten blind
expert’s persuasiveness even more. 

So What Are the Implications? 

One, Consider a Blind Expert. 

As Robertson highlights in the 2010 article, there are some
reforms that should be undertaken before the practice of using
blind experts becomes widespread. For example, reforms should
ensure unsuccessful reviews don’t become part of discovery, and
also discourage litigants from adopting a “try, try, again”
strategy in the event that an initial blind review isn’t in their
favor. However, with guarantees like that, or maybe even without,
it is easy to imagine some cases that would benefit greatly from
a blind approach. For example, think about a medical malpractice
case in which the defense is very confident that nine out of ten
experts, maybe even ninety-nine out of one hundred experts, would
find no breach of the standard of care. Under the current system,
the plaintiff could still find that atypical expert and, to the
jury’s eyes, the “one-in-a-hundred” becomes “one-in-two” in the
courtroom. If, however, the defense expert was selected blind,
and the plaintiff’s expert was a hired gun, it is more likely
that jurors would see an obvious difference and a wide
credibility gap.

Of course, it is also clear that there are cases where it
wouldn’t be wise to use a blind expert. If your side of the case
requires testimony that cuts against the consensus of likely
opinion, then it would still make sense to use a hired expert.
There could also be cases where it would make sense to use hired
testimony to supplement a blind expert (perhaps requiring
modifications to cumulative testimony rules), because the hired
expert is more qualified or a better teacher.  

There are clearly some elements that need to be worked out, but
it is an intriguing idea. And medical malpractice defense
seems like an ideal setting for trying it out. 

Two, Play Up the “Blind” Features in Your Conventional
Experts.

Even if you don’t move to a blind expert model right away, the
idea and the research provide a good reminder to emphasize those
aspects of conventional expert testimony that are likely to
strike jurors as less biased and more credible. The following are
messages that add credibility to hired witness testimony. 

I said the same thing, or consistent things, before I was
hired, in previous publications and presentations.  

I could have gone even further (on damages, liability,
etc.), but I didn’t.

Their expert uses the same methods, makes the same
assumptions, or reaches the same conclusion. 

In short, it makes sense to take a close look at your expert
witness testimony and emphasize those areas that, from a juror’s
point of view, highlight the quality and the independence of the
opinions.  

While the research reviewed in this post may point to a way to
offer more effective expert testimony in at least some contexts,
for the present we are likely stuck with experts who are
themselves stuck in an adversary system. In most cases, those
experts will be perceived as hired guns. But as one earlier study
(Cooper & Neuhaus, 2000) demonstrated,
that perception is likely to be most damaging when testimony is
unclear or communicated poorly. So, for now at least, it is best
to hire a hired gun who teaches effectively.

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Other Posts on Expert Witnesses: 

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ResearchBlogging.org
Robertson, C. T. (2010). Blind Expertise New York University Law Review, 85,
174-256


 

Robertson, C.T., & Yokum, D.V. (2012). The Effect of Blinded
Experts on Jury Verdicts Journal of Empirical Legal Studies,
9
(4), 765-794

Photo Credit: Ken
Broda-Bahm

October 29, 2012

Appeal to Your Juror’s “Temporary Identity”

By Dr. Ken Broda-Bahm: 

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It is Halloween time again, and everyone who is a kid or young enough to party like a kid, is preparing their temporary identity for the night: a pirate, a witch, a vampire. This year, apparently, the trending looks are less traditional, including “Angry Birds” and costumes for this year’s angriest bird of all, Big Bird, are flying off the shelves. Of course, the idea of temporary identity, of being something else for a short period of time, isn’t limited to October 31st. It is something that sets the stage for human communication in every context. In different situations, we adopt different personas. There is overlap, of course, but when you think about it, there are probably some pretty clear distinctions between the “work-you,” “friends-you,” and “family-you.” 

There is also a “juror-you.” That is, there are differences between the identity a juror assumes during trial and the identities that person may hold in any of their other life contexts. While we might think of attitudes and personalities as something fixed and immutable — something that a person “has” — it is more accurate to see them as highly changeable and sensitive to the situation — something that a person “does,” and does differently in different contexts. We’ve raised the issue previously of jurors being in different “decisional mindsets” at different stages in the trial. In this post, I’d like to take that point a little further and discuss ways to get jurors into a preferred role or identity during trial. I’ll be choosing two early moments in trial, voir dire and opening statement, where a juror’s understanding of her role can be critical, and providing suggested language on ways to encourage and adapt to a juror’s temporary identity at that stage. 

Identity Matters

I got to thinking about the importance of a juror’s temporary identify after reading a recent piece by Maggie Koerth-Baker in The New York Times Magazine. In that essay, “The Mind of a Flip-Flopper,” she explores the idea of changing minds, initially in the political “Romney-Obama” sense of revising political positions, but then ranges into a diverse body of research on how we decide and redecide. Much of it, she writes, has to do with flexibility in identities: “Our identities, of course, are also stories we tell ourselves about ourselves. In some cases — if we want to think of ourselves as thoughtful and open-minded — we can adopt identities that actually encourage flip-flopping.” Drawing a parallel to juries, she also draws from research on an unusual setting for deliberation known as the Oregon Citizens Initiative Review. As part of the state’s “Healthy Democracy” program, Oregon addresses popular ballot initiatives by pulling together “a panel of randomly-selected and demographically-balanced voters,” who then hear from the campaigns for and against the measure prior to drafting a “Citizen’s Statement” that is published in the voters’ guide: a kind of mini-verdict from an unbiased group that has looked closely at the measure.

If that sounds a little like a jury, it is meant to. Like a jury, it can sometimes lead to decisions one wouldn’t expect from looking at popular attitudes alone. Koerth-Baker quotes Penn State professor John Gastil who shared the example of Oregon Measure 73 focusing on mandatory sentencing. To those who gave it only a little thought — the majority of the population —  the idea of strict and fixed criminal sentences held widespread appeal. To the panel, though, the negative consequences far outweighed the positives and the panel voted 21 to 3 to oppose it. According to Gastil, that finding played an important role: “You got a shift from two-thirds in favor to two-thirds against just by reading the report.” 

The point is that a working group can end up assuming an identity where “facts suddenly matter.” A jury is such a group. Rather than simply importing and applying the baseline attitudes they brought in the courthouse door, those individuals who are selected become “jurors” and that role can mark them internally as surely as the sticky badge marks them externally. The trick for litigators is to adapt to and cultivate the best aspects of that special identity as you prepare and present your case. 

Create and Speak to a Preferred Juror Identity…

Addressing the juror in their appropriate role matters in all phases of trial, but let me speak more specifically to two of the early stages. 

During Voir Dire

During voir dire, especially attorney-conducted oral voir dire, attorneys have an early opportunity to put a frame around the venire members and help them see their activity and their statements in an appropriate light. That role is not to be “auditioning” for a part, and it is neither to be in a contest with the court or counsel. Rather, the identity you most want panelists to embrace is the identity of one who is openly and honestly sharing views in a context that makes those views critically important.  

It is also not, at least from a juror’s perspective, about admitting to something called “bias.” By that name, bias is a bad thing that no panelist is comfortable admitting. Instead, voir dire is about the kinds of knowledge, attitudes and experiences that everyone has. 

Here is one example of how counsel might appeal to a juror’s temporary identity in voir dire: 

My part in this process requires that I ask you some questions about your experiences and your views on several issues. It isn’t my goal to single you out or to embarrass you, but our jury trial system is based on the idea that cases need to be decided by people who have no strong attitudes at the start of the case that would influence how they understand and use the evidence. We all go through life forming opinions based on our experiences.That is normal. But it means that not every juror is right for every case. For example, I live in Denver and I’m a big football fan, and a big John Elway fan. So I wouldn’t be the right kind of juror for a case against the Denver Broncos. There isn’t anything wrong with that, it just wouldn’t be the case for me.

By framing the questions in that fashion, you can help a potential juror understand that admitting to a strongly-held attitude doesn’t mean failing some kind of test, but instead means helping a worthwhile process. 

During Opening Statement

After jury selection, the next opportunity to encourage jurors to embrace a particular identity is opening statement. That is typically the time when attorneys talk about how grateful they and their clients are that the jurors are sacrificing their time, how important jury service is, and how it is second only to military service in the good it does the country. That can be an important message, but the lesson for counsel is that a little goes a long way, and it is often a message that sounds best coming from a judge. Too much from an attorney, and it sounds like flattery and ingratiation. 

The better message is to reinforce and empower jurors’ identity. Tell them what they are there for. At the stage of opening statement, they are there to hear what the story is about. But they don’t want to be in the passive role of an audience, or just consumers of information. And they also aren’t there to be a judge of which attorney has the better persuasive skills. Instead, the opening is an ideal time to tell jurors that they are there in order to be active, to be investigators of the facts, to try and find answers. One way to introduce that role might be as follows:

As both sides begin this case, we are given the opportunity to speak to you directly. That is an opportunity we won’t have while we are presenting the evidence. In fact, we won’t have it again until closing argument. We aren’t given this opportunity to provide an opening statement so that we can argue to you. We aren’t given it so that we can tell you a story. And we aren’t given it so that we can show off our persuasive skills. No, we are given this precious opportunity in order to help you in your role. To assist you in working with the testimony you are about to hear, to help you to be investigators. Because that is what you are. Not passive listeners, not critics, but active determiners of what is and is not factual in this case. To help you in that investigation, I want to share what I expect the evidence to show in this case. 

That message can precede an opening that is strong, and an opening that does indeed tell a story while staying on the right side of the “argumentativeness” line. The most important theme is that the jury is in control: They’re the ones reaching their own conclusions based on the evidence and facts, the arguments, and their own process. 

Rather than being a mask or anything false, this temporary identity we are asking jurors to assume is something that helps your case as long as you take care in shaping it and in strategically appealing to it. If jurors see the verdict as their own unique product, they are empowered. If they see trial as merely a persuasive contest between two sides, however, they can easily see it as all trick and no treat.

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Other Posts on Mindset and Persuasion: 

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Photo Credit: Mags20_eb, Flickr Creative Commons

October 25, 2012

Account for Selective Perception: 2012 Presidential Debate Series, Part Four

By Dr. Ken Broda-Bahm: 

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“Were they even watching the same trial I was?” Lawyers will sometimes wonder, after talking with jurors or hearing a post-trial interview, how perceptions can be so different. At times, it can be hard to believe they’re reacting to the same set of facts. We witnessed this type of scenario earlier this week after the third and final presidential debate focusing on foreign policy. Or, I should say, debates, because by all accounts, there were two debates that took place Monday night. There was one debate where Obama was “masterful” and “dominated,” while Romney was “heavy on agreement,” “rambling and generic” and “choking.” Then there was another debate, apparently on the same campus at the same time, where a “desperate” and “seething” Obama was “rude and interrupting,” while a cool, calm, and steady Romney “passed the ‘commander-in-chief’ test.” 

Of course, in a political context, one would expect the donkeys and the elephants to emerge with different post-debate impressions. That is because of selective perception, or as the social scientists call it, “confirmation bias.” We have a tendency to look for, and to notice, that which we expect or want to be true. In the final presidential joust, those with the narrative of a failing and grasping president saw one debate, while those with the narrative of an uninformed and inconsistent challenger saw another. Far from being just a phenomena of political or partisan conflicts, however, selectivity is a factor in all human perception. When we treat a juror or judge as just a collection point for neutral facts, or a machine for fair analysis, we miss that point. In this post, I round out our presidential debate series by looking into a few things this polarization of perception has to say about how cases, as well as witnesses, can be perceived during trial. 

In what’s become the hallmark of a very long and very close campaign, the examples of specific events, comments, and nonverbals from Monday’s debate that observers perceived quite differently is a long list. In a debate focusing mostly on our relationship with Israel and countries that threaten Israel, one exchange stands out. In one of the few very strong moments for Mitt Romney (based on my own perception, of course), is when in advancing his argument over the President’s “apology tour,” Romney turned to the President and said, “The reason I call it an apology tour is because you went to the Middle East and you flew to Egypt and to Saudi Arabia and to Turkey and Iraq. And by way, you skipped Israel, our closest friend in the region, but you went to the other nations. And by the way, they noticed that you skipped Israel. And then in those nations and on Arabic TV you said that America had been dismissive and derisive. You said that on occasion America had dictated to other nations. Mr. President, America has not dictated to other nations. We have freed other nations from dictators.” Agree or disagree, it is not a bad piece of rhetoric.

While Romney’s supporters keyed in on that language, Obama’s supporters keyed in on the response, where the President implicitly called out Romney’s own recent visits: “When I went to Israel as a candidate, I didn’t talk to donors, I didn’t attend fundraisers. I went to Yad Vashem, the Holocaust museum there, to remind myself of the nature of evil and why our bond with Israel will be unbreakable. And then I went down to the border towns of Sderot, which had experienced missiles raining down from Hamas. And I saw families there who showed me where missiles had come down near their children’s bedrooms, and I was reminded of what that would mean if those were my kids, which is why, as President, we funded an Iron Dome program to stop those missiles. So that’s how I’ve used my travels when I travel to Israel and when I travel to the region.”

The point is that how you react to that argument and response serves as an accurate litmus test of your political orientation. There is more than enough information in the exchange that people of either political hue can find the evidence they need in order to believe their candidate came out on top. There is at least as much complexity in litigation, and if a case has survived summary judgment and made it all the way to trial, it is almost always the case that a reasonable jury or judge could go either way. 

So it is not just the information that you need to worry about, but the motivation that will lead your fact finders to select some information and not other information. You can’t escape selective perception, but you can work to channel its impact. Here are three ideas. 

Choose the Appropriate Frame

How you describe what someone is about to hear is critical to what they notice and don’t notice about it. That is why opening statement is so important: it sets a frame around the evidence. The same principle can apply to witnesses as well. Let’s say that you have a key witness and you know the witness can come across as defensive and hesitant, as if he is hiding something. At the very beginning of that witness’s direct examination, you could reframe the behaviors that lead to those attributions. For example: 

Attorney: Have you ever testified before? 

Witness: No, and I’m a little nervous just to be in this chair. 

Attorney: I notice that you are speaking very softly, is that the reason? 

Witness: Yes, I hate speaking in public…but I understand it is my duty in this case.

In that way, the same behaviors that could be selectively interpreted one way (defensive, hiding, guilty) can be reframed another way (nervous, inexperienced). 

Focus on the Utility of the Information

One interesting recent study (Knobloch-Westerwick & Kleinman, 2012) suggests a novel strategy for reducing the tendency to confirm existing beliefs through selective perception. Apparently, when research participants perceive the information as directly useful to themselves, then personal utility has a chance to override confirmation bias. Looking at the way people gathered information during the 2008 presidential campaign, the researchers found that when participants believe their favored candidate is likely to lose, they are more willing to consider and be influenced by a wider spectrum of information about the opposing candidate because, in their view, they’re learning about their future president. 

In trial, attorneys should always connect information to its utility to jurors who value the act of making what they see as a reasonable and impartial decision. In my experience, even jurors who have developed a strong leaning during trial will still take deliberations very seriously. If you convince jurors that your information is not just true but useful to jurors during their future deliberations, you are increasing the chances that they’ll perceive and retain those facts. 

Pretest the Perceptions

Even where selective perceptions cannot be fixed, they should at least be known. I’ve noticed that litigators will sometimes feel they have a strong case because there is a way that jurors could view it strongly. What you need to know is roughly what proportion of jurors will choose that way and what proportion will see it another way. This is a big reason for conducting a mock trial or a focus group on your case: At the end, you will understand much more about the spectrum of ways that different jurors can see your case. But beyond simply testing your case story, it is also frequently useful to test a particular piece of that case — a key witness, a specific contract provision – that fact finders may end up viewing in different ways. Once you know the range, you can tailor your message so that it favors the best perceptions and target your juror strikes with an eye toward those likely to have the worst perceptions. 

I’m actually a little sad to see the debates ending, and I understand I might be somewhat unique in that view. My own selective perception sees these broad public arguments as a rare chance for all of us to focus on some common examples and draw some common lessons. Well, there is always 2016…Clinton versus Ryan?

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The 2012 Presidential Debate Series:

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Other Posts on Perception: 

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Knobloch-Westerlick, S. & Kleinman, S. B. (2012). Preelection Selective Exposure: Confirmation Bias Versus Information Utility. Communication Research 39:2, 170-193. 

Image Credit: Designed by Nick Bouck, Persuasion Strategies, based on imagery by _mixer_, Flickr Creative Commons

October 18, 2012

Be Assertive, Not Aggressive: 2012 Presidential Debate Series, Part Three

By Dr. Ken Broda-Bahm: 

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Everyone loves a second act. In the buildup to the presidential debate on Tuesday, President Obama’s supporters were hoping for turnaround from what was widely described as a lackluster performance in the first debate: He needed to find his edge, fight harder, and call out his opponent Mitt Romney more often and more forcefully. One could almost hear the cheerleaders, “Be…Aggressive…Be…Be…Aggressive!” And there is no doubt Romney supporters were chanting the same, betting that their candidate could continue to capitalize on a stronger than expected performance that has buoyed him in the polls leading up to next month’s election. 

But there was one practical obstacle for both candidates: The “town hall” format that involved questions being asked not by a moderator, but by a cross section of New York area citizens selected by the Gallup organization. Both candidates needed to come out swinging, but especially in the live presence of undecided voters, they needed to find a way to do so without looking disrespectful or rude. In other words, the candidates experience the same conflict that every attorney faces in the courtroom: the need to attack without losing credibility, to unsparingly criticize an adversary while still maintaining an image that is respectful, professional, and courteous. In that context, one wonders whether the need is really for aggressiveness — for attorneys or political debaters — or whether it is for assertiveness. The two are close cousins to be sure, and at times the difference can be in the eye of the beholder. But in this post, I will draw from three specific vignettes from the debate to see if we can separate the two. 

Aggressiveness or Assertiveness: What’s the Difference?

Just to get a sense of why it matters to politicians, lawyers, and others who seek to persuade, let’s take a look at a recent study that – based on the title at least – you might not be inclined to just pick up and read: “The Two Pathways to Being an (Un-)Popular Narcissist.” That’s fitting, based on the tendency for politicians, and maybe some trial lawyers too, to be a little narcissistic, enduring the pressure and criticism in exchange for the attention and the power. Looking into the difference between the positive and negative versions of narcissists that have been seen in the many studies (they’re either charismatic and admired or irritating and reviled), a group of German researchers found that the difference comes down to which of two paths these narcissists chose to take in communicating with others. As extroverts, narcissists — like some politicians and lawyers – in some circumstances take an assertive route (commanding and expressive behaviors), and in other circumstances take an aggressive route (combative, condescending or arrogant behaviors). In two studies, the team discovered an individual’s popularity or unpopularity during a group exercise varied not based on their level of narcissism itself, but according to viewers’ ratings of the behaviors as either aggressive (unpopular) or assertive (popular).

This sums up one of the more central needs of politicians, as well as trial lawyers: To be commanding and expressive without being combative or arrogant. And whether we see an individual as narcissistic or not, it makes sense to apply these conclusions not just to a defined personality type, but to a communication situation. Whenever presenting oneself to the public, or standing in front of a jury, advocates can choose to project assertiveness and avoid aggressiveness. The definition of assertiveness versus aggressiveness tends to be subjective, but we know it when we see it. The German researchers’ list isn’t a bad starting point: The difference is between being commanding and expressive (assertive), and being combative, condescending or arrogant (aggressive). And that takes us to the second presidential debate. A few moments are worth reviewing to note where advocates can choose a better or a worse path. 

Binders Full of Women: Don’t Risk the Perception of Condescension

If Big Bird was all the rage after the first debate, after Tuesday’s debate it has been all about Mitt Romney’s references to the “binders full of women” he reviewed as Governor of Massachusetts in selecting his diverse cabinet. To be fair, his basic point was one that both Democrats and Republicans should embrace: Search actively and employ flexibility to make sure your team is diverse because there are important benefits to that diversity. The problem was that the way he stated it was inartful at best. After describing his goal to diversify his cabinet picks he said, “I went to a number of women’s groups and said, can you help us find folks? And they brought us whole binders full of — of women.” In the day after the debate, that version was questioned by those same women’s groups, noting that the initiative, along with the binders, came from the women’s groups, not the governor. But setting that aside, the description still conveys a spirit of tokenism – the fungible “women” who can be simply pulled from binders and inserted into staff positions. Then Romney went further, using the story of accommodating his chief of staff who needed to be home at a reasonable hour so she could be “making dinner for my kids and being with them when they get home from school.” And again, at an individual level for his chief of staff, that is probably reasonable, accurate, and fair. But used as a general example and a response to the original question focusing on pay equality, it plays easily to the stereotype of women’s incomplete work life and gendered roles in the home, the very stereotypes used to justify unequal pay in the first place. 

Not surprisingly, the comments were viewed by many, including women’s groups, as condescending, dated, and out of touch. The perception of being talked down to blunts assertiveness, and even as it doesn’t contain the hostility we normally associate with aggressiveness, it nonetheless reinforces the notion of a speaker’s superior position that lies at the core of the dark side of narcissism. As we’ve written before, persuaders, including attorneys, have a strong need to assess their message and avoid both the reality and the appearance of condescension. 

Labeling Libyan Terrorism: Make Sure You’ve Got Your Facts Straight

Responding to a question on the attack in Benghazi that killed four Americans, including our Ambassador, Romney went on the attack. “It was a terrorist attack and it took a long time for that to be told to the American people.” Obama responded that, “the day after the attack, Governor, I stood in the Rose Garden and I told the American people and the world that we are going go find out exactly what happened, that this was an act of terror.” Thinking that he had the President in a lie, Romney took aim, “I want to make sure we get that for the record because it took the President 14 days before he called the attack in Benghazi an act of terror.” “Get the transcript,” Obama responds, but moderator Candy Crowley didn’t need it, saying to Romney, “He did call it an act of terror,” but then to be fair, she clarified what should have been Romney’s larger point, “it did as well take two weeks or so for this whole idea of there being a riot about this tape to come out. You are correct about that.” Romney could have left it at that, but he returned to his original point saying “It took them a long time to say this was a terrorist act” then questioning himself, “am I incorrect in that regard?” Turns out he was. The transcript of the President’s remarks the day after the attack confirms that Candy Crowley and the President were correct. The mistake obscured what, for Romney, would have been the better argument about the misleading information on the attacks being due to spontaneous demonstrations over a YouTube video. 

In this case, an aggressive swipe was answered by an assertive command of the facts. The moral here is as obvious as it is difficult to put into practice: Especially when you are on the attack, be factually correct about everything. The smaller inaccuracy will overcome the larger point every time. 

Forty Seven Percent: Pick Your Moments

One of many criticisms of the President after his first debate was that he failed to mention what had been the campaign’s sharpest weapon in recent weeks: the secretly recorded comments about the “47 percent” who “are dependent upon government, who believe that they are victims, who believe the government has a responsibility to care for them…”  leading up to “so my job is not to worry about those people – I’ll never convince them that they should take responsibility and care for their lives.” While Obama’s campaign had been pounding the challenger’s campaign in advertisements, it went unaddressed in their first meeting, perhaps because Obama wanted to personally take the high road, or more cynically, because he wanted to deprive Romney of the opportunity to make a high profile response. On Tuesday, however, the 47 percent did get its mention. 

“I believe Governor Romney is a good man, loves his family, cares about his faith,” he started out genially enough, “But I also believe that when he said, behind closed doors, that 47 percent of the country considered themselves victims who refuse personal responsibility, think about who he was talking about.” He went on to mention those receiving social security, veterans, students, and people with incomes low enough that they pay substantial payroll and sales tax, but not income tax. The critical point may have been the timing of these remarks. By coin toss, Obama was speaking last, so he saved those statements for the very end of the debate when Romney would not be able to respond. Of course, Romney had already responded saying he “cares about 100 percent of the American people” and returning to that “100 percent” figure three additional times in the debate. Still, the President strategically chose his moment for that one. He not only preceded it with a compliment to blunt the aggressiveness, but also left that message hanging in the air as the debate closed. 

By thinking about examples like these, advocates can learn a fair amount about how to strike the balance: to seize the assertive high ground without being seen as taking the aggressive low road. A rough checklist for advocates in making sure they’re on the right side of that line would include the following: 

  • Am I on firm, clear, and accurate ground? 
  • In attacking, have I communicated understanding and respect for the other party? 
  • Is my verbal and nonverbal tone consistent with that respect? 
  • Have I positioned the attack in such a way that a fair and reasonable audience should care about it? 
  • Will I still end up ahead once the other side responds?  

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The 2012 Presidential Debate Series:

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Other Posts on Persuasion in the Public Sphere: 

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ResearchBlogging.org Küfner AC, Nestler S, & Back MD (2012). The Two Pathways to Being an (Un-)Popular Narcissist. Journal of personality PMID: 22583074

 

 

Image Credit: The Other 98%, Facebook Share on 10/17/12. 

  

October 4, 2012

Look Like You’re Winning: 2012 Presidential Debate Series, Part One

By Dr. Ken Broda-Bahm 

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Amid the spin and analysis in the immediate aftermath of last night’s lead-off Presidential Debate, much of the reaction is focused on appearance and style, with some wondering if Obama was on the receiving end of a kind of “Nixon/Kennedy” moment with Romney looking cool, confident and “presidential” while the President himself frequently looked detached or irritated. Specifically, critics focused on how much time Obama spent looking down, often leaking facial reactions or nodding his head while Romney was speaking. Now, at one level that kind of criticism can feel palpably unfair. After all, with the critical issues facing the nation, should we really be making a leadership choice based on demeanor and nonverbal style? Naturally, no, as in trial, the best decision is a substantive one, but our attention to substance is still mediated by our perception of strength and confidence. Delivery matters. On that score, the takeaway from both pundits and polls is that Romney had the upper hand. As the iconic Democratic consultant James Carville put it, “It looked like Romney wanted to be there, and Barack Obama didn’t want to be there.”

Regular readers of this blog know that I like to write about politics, and one of the reasons is that it is a continuous source of accessible lessons for anyone who is seeking to persuade. And the imperative for me is always to look for the practical relevance to the attorney in court. In this case, there is a big takeaway: Look like you’re winning. In the days prior to the Denver debate, the polls had been moving clearly in Obama’s favor, particularly in the key battleground states like Ohio, Florida, and Virginia. In that context, the first debate was viewed as Romney’s opportunity to regain some momentum and turn the tide in those crucial swings, or at least bolster his own faltering troops. While the debates generally don’t lead to important changes in opinion, in this case they do lead to an important lesson for persuaders in all contexts, including the advocates at the podium, the witness in the box, or even the party representative sitting at the table. Rather than being just a winning spirit or mindset, confidence – at least as perceived by an audience – is a behavior. This post looks at the key behaviors advocates, parties, and witnesses can use in court to look like they’re winning. 

The Inevitable Attention to Reactions

One important factor in the way the debates came across on television screens was the use of split screens. Instead of multi-camera operation that might show both candidates, then zoom into the one speaking, then cut to a different angle, debate organizers made the choice to simply split the screen showing a static shot of both candidates at all times while they were speaking. What that does is give as much attention to the reactions and nonverbal tics of the nonspeaking candidate as it does to the speaker. One study (Scheufele, Kim & Brossard, 2007) found that in the 2004 Bush/Kerry debate, this binocular view of the the debate led to more extreme judgments, with the previously supported candidate being viewed even more positively and the opposed candidate moving in an even more negative direction. Viewing the debate with the screen divided to show the candidate speaking on one side and the candidate waiting to speak on the other, there is nothing for the eye to do except drift over and look for reactions from the listener.

In last night’s debate, Governor Romney used his “time off” while Obama was speaking to glance down briefly but then give Obama his full attention while maintaining a relatively fixed (but positive and alert) expression that didn’t change much even as he was being criticized. President Obama, on the other hand, spent much more time looking down, frequently pursing his lips or giving a tight smile, or even affirmatively nodding as his opponent criticized his performance and policies. The overall impression was that Romney was engaged and bringing the fight, while Obama was on the defensive or even defeated. 

Heightened attention to reactions are not unique to the split-screen setting of a presidential debate. Reactions can also dominate in a court room, where you can at times almost feel a breeze created by all the jurors swinging their heads at once to take in the other side’s reaction to something that was just said on the witness stand. I’ve written before on the best practices in “off stage” behavior in court, and the short list includes the following: 

  • Do maintain an alert eye gaze toward the speaker
  • Do keep a relaxed, but still engaged facial expression
  • Don’t nonverbally react to a particular topic or statement
  • Don’t signal that you are tired, bored, impatient, or distracted

Beyond just avoiding the poor optics of defensive listening, I think the more specific question is how communicators maintain the impression that they’re actually winning. At that level, I think there is an interaction between content and attitude as conveyed through nonverbals. 

Make Sure Your Attitude Matches Your Desired Content

Think about President Obama’s desired message on the economy: Yes, we are in tough times, but we are slowly making headway, so now is the time to move forward instead of lapsing back to the failed policies of the past. Keeping that theme in mind, the attitude that should accompany it during speaking and listening times should be one of patience and confident optimism. Even – and perhaps especially – when being attacked by an adversary, that patient and confident expression should be unflappable. 

The same goes for a witness or an advocate. A theme is not just a sentence in the introduction to the opening statement, it is a frame of mind that should determine how you react to the other side. If your personal injury defense theme is that this was a tragic accident and no one was to blame, then that theme should guide your reaction when the plaintiff attacks. Bristling defensiveness and counterattacks are inconsistent with that theme, while an understanding patience – both in words and in demeanor – is more in line with that message. 

And Make Sure Your Content Matches Your Desired Attitude

Attitude doesn’t really stand alone, and most trial lawyers would probably agree that the best way to look like you’re winning is to actually be winning. Independent of that key bit of advice, though, advocates need to remember that there is an interplay between content and tone. 

For example, many analysts this morning are wondering if President Obama could have appeared more powerful and in control if he had been on the attack more often. Indeed, much of the ammunition that the Democratic campaign had been lobbing against the Republicans in recent weeks — the 47 percent comment, Bain Capital’s outsourcing, Romney’s tax rate and undisclosed returns — were entirely absent from the debate. In one of the President’s few high points of the debate, he went after Governor Romney’s lack of specificity. He noted that Romney promised to make his tax cuts revenue neutral by closing loopholes, but he won’t say which ones. He will replace the Dodd-Frank financial sector regulation with something, but he won’t say what. He is going to keep the popular provisions of the Affordable Care Act like coverage for preexisting conditions, but he won’t say how. “And at some point I think the American people have to ask themselves is the reason that Governor Romney is keeping all these plans to replace secret because they’re too good? Is it because that somehow middle class families are going to benefit too much from them?”

The President’s supporters ended the night wanting to hear more of that, and wanting to see more of that fighting spirit. If the President or his advisers felt that looking “presidential” meant holding back on the attacks, then they might want to scrutinize that strategy before the next debate. By the same token, if Mitt Romney’s message is one of a confident plan to take us forward, then the preliminary verdict is that he conveyed that, at least at the nonverbal level, even if all the details of that plan are not fully fleshed out.  

There are two more presidential debates and one vice presidential debates coming up, and I’m hoping that some interesting persuasive lessons can be drawn from each of them. Stay tuned. 

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The 2012 Presidential Debate Series:

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Other Posts on Legal Lessons of Political Speech: 

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Scheufele, D. A., Kim, E., & Brosssard, D. (2007). My Friend’s Enemy: How Split-Screen Debate Coverage Influences Evaluation of Presidential Debates. Communication Research 34, 1: 3-24. 

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