Archive for October, 2009
Warning your jurors about the position that someone else will try to convince them of often results in increasing their resistance to persuasion. Researchers in persuasion tell us that when we are warned about what is to come, we immediately begin to engage in what is called “anticipatory counter-arguing” prior to even hearing the message (Jacks and Devine 2000). Instead of their focusing on the crucial argument of the other side when they hear it, they respond to the inevitable opposition theory with “Hey, that other lawyer warned us you were going to say that ! Ahaa!” By letting jurors know what is to come from the other side, you cue them to begin ‘yes-butting’ the other sides’ position very early on.
And, lest you think this tendency is the sole province of younger jurors, there is evidence that resistance to persuasion tends to increase over time, with the middle-aged more likely to have strong pre-conceived notions that enable us to counter-argue opposing positions (Wood 2000).
An early warning can increase jurors’ resistance to persuasion by your opponent.
Jacks, J. Z. and P. G. Devine (2000). “Attitude importance, forewarning of message content, and resistance to persuasion.” Basic and Applied Social Psychology 22(1): 19-29.
Wood, W. (2000). “Attitude change: Persuasion and social influence.” Annual Review of Psychology 51: 539-570.
This is one of the scariest comments uttered during jury selection. The scary part is that it has little meaning, but if you aren’t politely persistent, it can hide the truth. The problem is that “I can see it from both sides” is the cognitive equivalent of “I am still breathing”. Unlike the image to the left, which might be initially awkward to visualize in both forms, the two sides of an issue are pretty easily spotted, especially since the jurors have just been told what the two sides are. What is left unsaid is “I can see both sides, but I like what I see on one side much more than the other”. What the response means is, “I don’t want to have to think very hard about my assumptions or preferences”. Not meaningful, not helpful, and you might be stuck with it. [The implications of this message for voir dire will be dealt with in an upcoming entry in our “Simple Jury Persuasion” series.]
Mock jurors often make this statement in group deliberations as they attempt to articulate the opposing parties’ positions. While they often present a superficial understanding of “both sides”, sometimes their belief that they understand things thoroughly can be pretty shocking.
This past week, I ran across the info-graphic illustrating American political views created by David McCandless & Stefanie Posavec. It is more insightful than the cartoonish format would initially suggest. Their work depicts a wealth of information on values, attitudes and beliefs that normally takes books to communicate. Instead, they offer up a modern version of the pictogram with amazing amounts of information from both liberal/progressive and more conservative points of view.
In a way, this is a lesson for litigators. Simply because of the amount of time you spend on a case, you develop a form of tunnel vision. You see your side. As for the other side? Much harder.
That is why, when preparing for a mock trial or focus group, we recommend that lead counsel takes on the opposing counsel role. It’s the very best way to see things from their perspective, and, in so doing, you also see holes in your own case that were not visible to you before.
The act of taking on the ‘other’ perspective, allows you to both see and hear things differently. A recent study profiled in Science Daily illustrates that how you present/articulate/characterize your side of the story defines precisely who will hear it and who will not hear, or perhaps even distort it. When even experienced litigators are fearful of rolling the dice with a jury trial, it makes a lot of sense to consider that other perspective and craft your case presentation to increase your odds of being heard by both sides.
The image on this post is a famous example of seeing something from both sides—the optical illusion allows you to see either an old woman or a young girl.
I like to work on cases that I care about. Who doesn’t?! Life is more meaningful when we spend it on activity that has personal meaning, right? As a litigation consultant, I am faced with cases with facts that are obviously compelling, as well as others whose appeal is, shall we say, ‘non-obvious’. What my kids ask me, though, is “are you working for the good guys?”
What a simple question. “Are you working for the good guys?” And how complicated. But it is, at bottom, what jurors want to know, too. And it is the challenge of every trial lawyer and every litigation consultant to find a path to “yes” when asked that question. In morally ambiguous cases the answer may become “there are no bad people in this story, it is simply sad.” Or “these are good people who really lost their direction.” But the challenge is to find a way to feel good about them.
My experience working with new attorney clients is that the first time we work together, like any ‘first date’, is a bit tentative. I feel my way around their approach to doing things, and they learn my strategic ideas. The second time is more fluid, as most second dates tend to be. When we have an opportunity to work together a third time, we do it as friends and collaborators.
Several years ago a client/friend and I had a meeting about a new case for which he had sent me the documents for review, and at the beginning of the meeting I said “I really like this case”. He burst out laughing and said that he knew I was going to say that, and he questioned whether I was seeing the case realistically. What ensued was an extremely fruitful exchange of ideas about the risks of the case, the points of attraction, and what it will take for a jury to “like our case”. What he realized (and now, years later, what he has come to expect from me) is that part of my task is to see the path jurors need to take to “like our case”, as well as the detours that will cause them to find against us.
As a determined optimist, I want to believe that a verdict in favor of my clients represents justice. That is what juries want to believe as well, and the job of a litigation consultant is to assist the trial counsel to illuminate that path. If I can’t find a way to make a positive verdict for my client feel like a good thing, I can’t expect a jury to. Juries are extremely good at detecting authenticity. Belief about the merits of our case, even with the conscious awareness of its flaws, is the tightrope we walk every day. Thousands of jurors have told me what they care about, and where the threads of tolerance are woven into the fabric of their beliefs and values. We keep this knowledge foremost in our minds, from discovery to resolution.
So yes, kids. I am working for ‘good guys’. But the opposition might feel that they’re working for good guys, too.
There’s a really good reason for obtaining verbal and/or non-verbal agreement from your panel during voir dire. Not only does it begin the process of building your relationship with potential jurors, it is also a means of predisposing them to continue to be in agreement with you as time goes on through the trial.
Here’s how it works: The principle itself is one of “commitment and consistency” (Mills 2000). You can be more persuasive by obtaining what you might think of as ‘small beginning commitments’. This might be around issues such as traffic that morning, finding parking by the courthouse, or even a comment on the weather. You establish yourself as comfortable with them, as caring about their comfort, and you make good eye contact with them.
As you move through your voir dire, you are asking for opinions, asking about agreement from the panel on various issues, and letting them know you want them to feel comfortable with the burden they take on as jurors in a pending trial. Research on persuasion tells us that people like to see themselves as behaving consistently. When you establish a pattern of agreement early on in voir dire, those who will eventually become jurors are more likely to continue to agree with you as long as you are reasonable in your requests/presentation of evidence. (This is why skilled negotiators begin with the ground rules first—to establish that all-important pattern of agreement.)
Agreement in small things can lead to agreement in larger things.
Mills, H. (2000). Artful Persuasion: How to command attention, change minds, and influence people, AMACOM.