Tag Archives: risk assessment

January 24, 2013

Scare With Care

By Dr. Ken Broda-Bahm: 

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If you’ve seen the Pixar animations feature Monsters, Inc., you might remember the slogan of the company in the title: “We scare, because we care.” Plaintiffs’ attorneys, particularly those who are followers of the Reptile approach to persuasion, may well have the same slogan. Since the perspective focuses on the idea that our primitive or ‘reptile’ mind is motivated by threats to our own security, trial lawyers using that approach will base their case on the threat and insecurity stemming from a defendant’s conduct, and frame a plaintiff’s verdict as a solution to that fear. Arguing that the events at issue in a case pose a threat to jurors and their loved ones, they suggest that the only solution is to use the power of the verdict in order to check that behavior. So based on this outlook, fear is useful: It’s a human motivator that plays a role in getting jurors to see a case in personally relevant terms and plaintiffs will add that they aren’t the only ones playing to fears. Defendants, they’ll say, have also either explicitly or implicitly played to fears: fear of false claims, runaway verdicts, and greedy plaintiffs, for instance. 

As much as it plays a role in what we think motivates jurors, however, fear is not so simple. As I’ve written previously, “The problem with an unvarnished fear appeal is that it can backfire by causing its intended audience to withdraw from the subject matter.” In that same post, I reviewed a study showing that extremely dire threat appeals based on global warming actually led to a reduced belief in global warming (Feinberg & Willer, 2012). That is not to say that fear is never a good motivator, but fear appeals need to account for the complexity of human risk perception. This post shares a couple of lessons from a few studies illustrating the broader point that risk assessment is situational, nuanced, and difficult to predict. So, even when your case is able to invoke a threat, motivating decision makers and persuading, based on that threat, is not as simple as just pushing a button. 

Risk Assessment is Risky Business

The thing about a fear appeal is that fear motivates not just action, but cognition as well. Thoughts that are too threatening invite counterargument, or they may not be processed, remembered, and acted upon. If a threat isn’t accompanied by a clear tool for managing that risk, then it may just wash over us without changing our thinking at all. Apart from that effect on approach and avoidance, however, there also appear to be some important categorical differences in the types of fear appeals that motivate. 

Recently, Shankar Vedantam, the social scientist and author who writes the Slate column called The Hidden Brain, sat down with NPR host David Greene for a conversation on how we think about risk in the wake of the Newtown, Connecticut school shooting and similar events. Apparently risk assessment isn’t a purely rational calculation of probability and severity. Instead, Vedantam notes, “social scientists have known for a long time that there are dangers whose risks we underestimate, and there are dangers whose risks we overestimate.” When your case calls for jurors to understand a risk accurately – or, I should say, favorably – it helps to guard against those cognitive biases that would cause a fact finder to underestimate a risk you want to identify as high, or overestimate a risk you want to identify as low. The field of risk assessment sports a very broad literature, with grist for many blog posts. At this point, however, I’d like to just pick two themes that are particularly applicable when litigators are using or responding to a fear appeal. 

One, Focus on What We Fear, Not What we Dread. 

We might use the terms interchangeably, but there is a difference. As Vedantam noted, social scientists “talk about the difference between things that we fear and things that we dread. So we fear cancer and heart disease and traffic crashes, but psychopaths, serial killers and airplane crashes are things that we dread. When a danger seems like it’s inexplicable, when we have absolutely no control over it, when suddenly, out of the blue, it causes mass casualties, this causes not fear, but dread. And when it comes to dread, that’s when we tend to overestimate the risks.” When talking about guns, for example, we don’t worry about accidents nearly as much as we worry about mass shooters, even though the former are many times more common. This distinction might also explain the study on how we think about global warming. Focusing on the most dire predictions also treats the phenomena as “unmanageable,” and therefore something that is less likely to motivate action in response. 

This carries a lesson for legal persuaders. It may be tempting to invoke the biggest fears on the theory that those will be the greatest motivators, and because those are the risks that are likely to be overestimated. But aiming for the higher end of the fear spectrum can get you into the category of “dread,” and that leads you into the territory of risks and threats that jurors consider “unmanageable” — the kinds of fears that can result in an apparently apathetic or unmotivated (e.g., “shit happens”) response from jurors. The better course in thinking about your trial message and story when addressing fears or threats to jurors, is to focus on those that are realistic, tangible, and — most of all — manageable. If you invoke a fear, then you must also point to a clear message allowing jurors to control and alleviate that fear.  

Two, Address Fear in Social Terms.

Risks don’t exist in a vacuum but are given meaning within our social frameworks. A current study (Galesic & Garcia-Retamero, 2012), looked at the quote attributed to Vladimir Lenin, “one death is a tragedy, one million is a statistic,” and looked for the tipping point at which risks cease to become more meaningful. Unlike what we often see in social science research, there is a clear answer in this case: about a hundred. That is, our perception of a risk increases up to the point that it threatens one hundred people. A risk to ten is greater than a risk to one, and a risk to one hundred is greater than a risk to fifty. After that, however, greater risks are dreaded at about the same amount. In other words, something that threatens a thousand is not viewed as ten times worse than something that threatens ‘only’ a hundred. Instead, it is viewed as about the same level of threat. 

Why do we top out at around a hundred? The researchers suggest that it is because that is about the size of an average social circle. We can conceive of the number of people that we know and interact with on a regular basis. Perhaps these days that could mean the number of people in our Facebook networks. When we see risk posing a danger to a group about the size of our circle, then we see a risk that is about as big as it can possibly be. Based on that, it looks like Lenin had a point: We attach meaning to what is tangible, but risk is not as meaningful when it reaches a level of abstraction. The job of the legal persuader is not only to stick to the more concrete numbers, but also to incorporate the broader point of addressing risks in social terms. A given product, for example, doesn’t simply threaten or protect “people,” but “fathers,” “daughters,” and “grandmothers.” The risk, when viewed in the context of our familiar social networks, will always be more tangible and more important.  

As a final word, the persuasive strategy we have to fear is not just fear itself. It is really an oversimplified approach to fear. There are no automatic or simple routes to human motivation. 

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Other Posts on Fear, Reptiles, and Motivation:

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Galesic, M. & Garcia-Retamero, R. (2012). The Risks We Dread: A Social Circle Account. PLOS One. URL: http://www.plosone.org/article/info%3Adoi%2F10.1371%2Fjournal.pone.0032837

Gigerenzer, G. (2004). Dread Risk, September 11, and Fatal Traffic Accidents. Psychological Science, April. URL: http://pss.sagepub.com/content/15/4/286.abstract

Slovik, P. (1987). Perception of Risk. Science 236:4799, pp 280-285. URL: http://www.uns.ethz.ch/edu/teach/0.pdf

Photo Credit: Cogdogblog, Flickr Creative Commons

January 27, 2011

Whose Risk Is This? Take Personal Responsibility in Sports Litigation

By: Dr. Kevin Boully 

There is danger in all sports, anyone who plays them takes that risk for themselves.”
-Mock Juror in recent sports litigation research

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Athletes choose to play sports that involve risk.  Athletic teams, coaches and organizations are aware of the risk just like players.  So, how much personal responsibility does an individual athlete have for safely participating in his or her chosen sport?  What must the player and the organization do to make sure all possible safeguards are in place to reduce risk?  Who should be held most responsible?

Jurors (and judges, arbitrators and mediators) confront these basic but critical questions in sports-related lawsuits like that of former college football player Stafon Johnson.  This week, Mr. Johnson sued the University of Southern California and ex-assistant conditioning coach, Jamie Yanchar, claiming negligence in the 2009 weightlifting incident that resulted in severe injuries to Mr. Johnson’s throat, threatening his life, ending his college football career, and potentially limiting his professional career. Continue reading

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