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Archive for January, 2010
Simple Jury Persuasion: Using counter-factual thinking to your advantage
We often hear directives to anticipate ever-present juror counter-factual thinking. It’s really tough (and sometimes impossible) to figure out all the imaginative directions jurors can go to come up with their own hypotheses as to what ‘really happened’. So we wonder—why don’t more litigators simply turn counter-factuals to their advantage?
Counter-factual thinking is the label used to describe what happens when we think about ‘what if’ or ‘if only’ alternatives to a regrettable situation. When jurors employ counter-factual thinking in response to litigation, they often think things like:
“If only she hadn’t driven a different way to work that day…”
“What if he had sought out a third opinion?”
“If only they hadn’t decided to have a second child…”
“What if the company had trained their employees not to do…”
Often the answer to these questions are that this horrible thing would not have happened and jurors attribute injuries, death, disability, horrible accident to bad luck, fate, God’s will, or simply shrug and say “bad things happen”.
Advertising researchers take current thinking in the story-telling model a bit further. Krishnamurthy & Sivaraman (2002) found that counter-factual thinking induces careful scrutiny of incoming information. Our thought is that this careful scrutiny is due to the recipient assessing how this new information fits with the story they have individually constructed.
The storytelling model would say that you sequence the order in which you introduce the parties. So, for example, if you are the plaintiff, you might tell the story of the drunk driver irresponsibly running a red light and injuring or killing the plaintiff so that the juror will think “if only s/he had not driven drunk” rather than “if only she hadn’t taken the alternate route that morning”.
What Krishnamurthy & Sivaraman’s work would say is that yes, you tell the story in that order and then you articulate the counterfactual that works for your case for the juror: as the plaintiff (“if only s/he had not driven drunk”); as the defense (“if only s/he had not taken that route”). In other words, you don’t leave it up to the juror to generate the counterfactual—you articulate it for them in opening statement and this will, according to Krishnamurthy & Sivaraman, result in the juror’s carefully scrutinizing the remaining evidence through the filter of the counterfactual that works for your case.
Krishnamurthy, P. and Sivaraman, A. (2002) Counterfactual thinking and advertising responses. Journal of Consumer Research, 28(650-658).
In the face of the unexpected: Be cool
A few years ago, this post might have been illustrated with a photo of John Travolta. But time passes. Now, the essence of unflappable coolness is George Clooney. Trust me on this one.
Recently, George (I call him George) was promoting his film “The Men Who Stare at Goats” at the Venice Film Festival. Reporters were asking questions. George was answering questions. All very straightforward and predictable. No surprises. Until suddenly a ‘reporter’ stood up to ask a question and instead took off his clothes and asked if he could have “just one kiss” from George Clooney.
Instead of being embarrassed, tongue-tied, or otherwise mortified, George is the essence of cool. Watch the video. He listens to the man’s breathless advances, tells the man (as he disrobes) that he has a “nice tie and it’s just long enough!”, ad libs about Peter Sellers, cracks a joke about how embarrassing it is when you take a big chance and it just doesn’t work out—and, at that point, security hauls the man-fan away.
And my point is? My main point is that George Clooney is extremely cool. And my ancillary point is that communication is sometimes required to be off-the-cuff. You cannot plan for the unexpected. Especially when you are in the courtroom. The unexpected can simply burst forth. And at moments like that, the person behind the role becomes visible.
A man named Grafton Hull who happens to be a professor of Social Work wrote a brief article on the importance of what you do when the unexpected bursts forth back in 2003. He could have been picturing George Clooney at that press conference some years in the future. What did Dr. Hull say about communication in the face of the unexpected?
“Be well prepared, never look flustered, keep your cool.”
It’s great advice.
Voir Dire: Do you like tall extroverted men?
We mean on your jury. From our perspective, it depends. You may remember back in the 1950’s there were studies completed that found tall men were influential in groups. As we move into 2010, things haven’t changed a whole lot. A study of jurors in 2000 found that jurors rated the extroverted, tall men among them as the most influential in group discussion (Marcus, Lyons & Guyton, 2000).
Interestingly enough, another study completed about the same time looked at juror gender and decision-making on guilt or innocence. Voss & Van Dyke (2001) found that male jurors focused more on the evidence in terms of their guilt judgments while women considered evidence but also situational factors. Voss & Van Dyke theorized that men are more influenced if the emotional content can be related to the evidence. Women, on the other hand, are more influenced if the emotional content relates to the defendant.
So if your final choice is between a tall, extroverted man and a female juror, and you’re listening to these researchers, do you like tall men?
If you are the prosecutor and the evidence is circumstantial but compelling, you probably should like tall men. According to Voss & Van Dyke, men would focus more on the evidence and the power of that evidence in ascertaining likely guilt. Women would weigh the evidence but they would also consider motivation, alternative possibilities and may slow down the juries march to a guilty verdict.
If you are defense and the evidence is circumstantial but compelling, you don’t like tall men so much. They may be influential in the jury room and persuade other jurors that the evidence is strong enough to convict. A female juror would likely listen more to context and the broader picture.
Research, however well done, shows us but a slice of human behavior. Yes, men and women may process things differently and we may see evidence differently. Somehow though, we doubt that all women think through evidence in the same way, and of course there is a range of styles among men as well. We tend to take information like Voss & Van Dyke’s with a grain of salt and focus more on experiences, attitudes, values and beliefs of jurors. But all other things being equal, information like this can give you a small measure of comfort when you have to make that last strike decision.
Simple Jury Persuasion: Don’t confuse argument with persuasion
Despite what you may have seen on the used car lot, persuasion is not a hard sell. It’s important we not lose sight of the many facets of litigation advocacy. In other words, don’t confuse argument with persuasion. You may argue your case beautifully but you still need to connect with jurors, show empathy and create some emotional response.
We blogged about Aristotle’s ideas on persuasion here. Aristotle talked about three pillars of persuasion: fact, emotion and credibility. A few hundred years later, Manallack (2002) & Hosman & Siltanen (2006) write about what they think is important in persuasion. We’ll focus on just a few of their ideas here.
Manallack writes about the importance of connecting emotionally, of infusing your facts (or evidence) with emotion, of being credible and establishing a common ground with your audience. All of these ideas are compatible with (and critically important to) your courtroom presentation.
Hosman & Siltanen focus on a more specific issue: powerful versus powerless speech patterns. Powerful speech patterns, say these two researchers, are more persuasive and powerless speech patterns tend to elicit more negative thoughts on the part of the listener.
Powerless speech patterns include indirect language, excessive use of qualifiers such as ‘like’ or ‘you know’ and sentences that end with queries—“don’t you think so?” and so on. Passive language ( e.g., “It would be reasonable to… “ versus “It is reasonable to…”) is equally deflating. It is a good exercise to monitor your use of these sorts of speech patterns and to remove them as much as possible from your courtroom communication.
These writers also point out that women and minorities are more likely to have powerless speech patterns. If you are female or a minority group member, increase your self-monitoring for powerless speech patterns. If you have parties, witnesses, clients who have these speech patterns, work with them to minimize or remove the powerless habit of speaking.
Communication can be powerful and persuasive without being argumentative. A hard sell isn’t necessary but clear, direct, straight-forward and confident communication goes a long way toward your credibility and persuasiveness to others.
Deliberations & the role of the presiding juror
You work hard to prepare and present your case so that your client has the best representation possible. Don’t forget to plan for a really important task: teaching the jury how to do their job effectively. Ineffective juries end up not reaching a verdict, not considering the evidence carefully, or simply not paying attention. After all the effort you have put into planning, preparing and presenting your case, don’t leave the effectiveness of your jury to chance.
Ten years ago, Arce, Farina, Novo & Seijo (1999) examined how juries fail to reach a verdict. Their work is still useful today for litigators seeking to avoid the hung jury. Here are some lessons from their research on how to help juries deliberate effectively:
- Teach the jury about the jury charge and the questions they will be asked to consider in the jury room. Walk them through the questions and tell them the answers you would like and the evidence that you think supports those answers.
- Hung juries have poor deliberations. They do not focus on evidence-verdict relationships and they do not attempt to integrate the evidence as they deliberate.
- Teach the entire jury about the role of the presiding juror. Knowing the role played by that juror will help them choose well. The foreperson needs to manage deliberations so that evidence is appraised and destructive arguments avoided. All the jurors, however, can work together to ensure deliberations are respectful and civil.
- Hung juries tend to have presiding jurors who do not know how to manage arguments or guide deliberations through the jury charge. The role of the presiding juror is truly to stimulate thought and debate; not allow the group to settle too early on a particular decision or outcome; and to encourage a focus on facts rather than opinions.
Taking the time to think through instructing the jury on how to deliberate effectively can result in a positive experience for you and for the jurors. Keep in mind that the payoff for jurors is the feeling that they have solved a problem, or made the world a better place. A hung jury or an acrimonious deliberation is as unsatisfying for them as it is for you. You’ve done your job thoroughly when you’ve presented the best case you can for your client and you’ve taught the jury how to do their job as well.
We act as we believe others expect us to act
PsyBlog recently posted about a classic study where researchers examined how attractiveness was related to stereotypes about sociability, humorousness and intelligence. What they found, of course, is that when we believe others think we are attractive—we then appear as more scintillating, sociable and amusing. Their conclusion is that this offers an explanation of why we are different across various social situations.
So imagine you are concerned about how the jury will react to you. You’ve had limited trial experience and you expect that they will figure it out and as you think about it you become increasingly anxious. What the research just described would say about this is that your negative thinking is going to shoot you in the veritable foot.
Instead, visualize how you wish you would present yourself in voir dire. Then do it. Smile. Make eye contact. ‘Like’ the jurors. Appear confident. Show self-effacing humor. Set the tone early on for the jury to see you as likeable, attractive, intelligent and reasonable. As the trial goes on, you are more scintillating and intelligent and entertaining than usual. Which makes you more credible and believable. Hmmm.
Maybe you have a big deposition coming up. A ‘friend’ sent you a videotaped deposition of “how we do it in Texas” and after you stop laughing hysterically you begin to wonder if this is really how you are supposed to depose someone in the Lone Star State. It certainly isn’t what you intended to do. Then you realize that your friend sent it to you to break your anxiety. A friend indeed!
So breathe. Think about your goal. Be grateful that your deposition is not likely to involve fisticuffs with a senior citizen. Be polite and follow your plan.
We are different in various situations. But fortunately we have choices about how we’ll approach different people and situations. Challenge your intrusive anxious thoughts about performance. Play the role of a confident, likable, intelligent attorney a few times and it becomes second nature. It’s who you are. It’s what you do.
Simple Jury Persuasion: How to be more likable
Likability. It’s a tough one. Especially in court where you might be a little nervous and there are so many uncertainties.There are some who say “just be yourself” and we would say “well, if your ‘true self’ is likeable, that’s fine” but there are ways the research tells us you can increase your likability. It wouldn’t hurt to try them out. If you’re worried about whether they will seem genuine, test them in a focus group and see what happens. [Note: We have observed people evidently testing these strategies out in bars, but we don’t recommend this. Too many complicating variables… unless your jurisdiction allows you to play music and serve drinks to jurors. If your jurisdiction allows this, please contact us immediately.]
Similarity, praise and compliance
The first finding has to do with similarity and praise. Researchers have found that two factors stand out as particularly compelling in terms of increasing likability: similarity and praise. Robert Cialdini is one of the gurus of persuasion and communication strategies. A real rock star in the marketing world. He reports that feeling similar to others quite literally draws people together. We stand closer when we learn we have similar political views. And we enjoy sincere praise. We all know how that makes us feel closer to the person praising us (as long as we believe they can be trusted). What Cialdini shows us is that praise generates liking and willing compliance with the wishes of the person praising us.
So find similarities between yourself and the members of the venire and praise them for honesty and willingness to respond to your queries.
Smile and the world smiles with you
Ever caught yourself smiling at a coworker or neighbor just because they smiled at you first? Cialdini calls this the principle of reciprocity. We tend to treat others as they treat us.
If you want the jury to receive you warmly, treat them warmly first. Smile.
Get juror’s commitment publicly
While liking is a powerful force, you also want to get jurors to be committed to what you want them to do. Cialdini says there is powerful evidence to show that when we publicly commit to a course of action through the spoken word or in writing, we tend to follow through. We aren’t suggesting that you ask for commitments on verdict issues, which is obviously improper in most jurisdictions.
Attorneys often ask jurors to commit to deliberating fairly and without bias. But what does that really mean? Instead, focus on something they have already done as a ‘first step’ toward a commitment to fairness. Build a bridge between their commitment to what is acceptable, such as fairness or a commitment to the evidence, and the verdict that you attach to it
“During jury selection we discussed the idea of fairness. Of what justice means. Of how the American jury system is the single greatest protection we have as citizens, because it is citizens, neighbors, voters making the decisions. Not politicians or bureaucrats. It is our community. So it leaves us with the challenge of making our community represent fairness in real life, and doing the right thing not just for the people in this court, but for our county, for our state…”
If they have completed a juror questionnaire, refer to their effort made in an attempt to show where the areas where they might have trouble being fair. Praise them for being thorough in their completion of the questionnaire. Frame completion of that task as step one. Participation in voir dire is step two. Listening intently and maintaining an open mind throughout the courtroom presentations is step three. And step four is deliberating fully and with integrity to allow justice to be done.
Similarity, praise, smiles and a call to action based on past behavior. And voila! You are not only more likable, you are more likely to have actively engaged jurors who want to do the right thing.
We don’t really know why we think what we think
PsyBlog writes that when we tell a good story about why we think what we do about others we are usually wrong. That is, when we try to describe the factors that are important to us in coming to a conclusion/decision about whether we like someone we usually identify factors that don’t actually matter at all.
In other words, when I think about why I judge a person about something—I am usually wrong.
So when mock jurors say “character doesn’t matter, it’s the facts that matter”—this is why they are wrong. They like to imagine that they are objective, and to them this means a dry assessment of the evidence.
But it is more than that, and their effort at constructing a ‘just world’ is a powerful element. It is frankly pointless to try to stop jurors from doing it—you can’t fight human nature.
The best testimony is a hybrid of important facts and a window into the character of the witness and the parties. Character matters, and if your client is woefully lacking, your challenge is to create a context for their inadequacies that mitigates the impact.
He isn’t insensitive—he is a geek.
She isn’t cruel—she is protective.
Sequence your case narrative so that good character shines through and jurors see that even though your client may have made some bad decisions, s/he is likeable and a well-intended person.
What I should have said was nothing: The disaster of a false confession
Vaughan Bell at Mind Hacks blog (one of our favorites) discusses an article in the APS Observer on the psychology and power of false confessions. The article itself is a good read that points out the many reasons for false confessions. It then shifts to a discussion of how lay persons and experts modify their own opinions after learning about confessions. In brief (and you really do want to read the full article) they found that lay people (read ‘jurors’) and experts (read ‘expert witnesses’, ‘forensic experts’) change their evaluation of the non-confession evidence (the other evidence presented) and see it as stronger evidence against the accused.
Situationist Blog also comments on this research quoting the primary author saying ““the most common reaction I get from a lay audience is, ‘Well, I would never do that. I would never confess to something I didn’t do.’ And people apply that logic in the jury room. It’s just that basic belief that false confessions don’t occur.”
This is potentially deadly. We ‘see’ evidence differently if we know someone has confessed. The Innocence Project has hard data on the relationship of false confession to wrongful conviction. But what do you say to jurors?
- If you can’t keep the confession out via a motion in limine, you have an uphill climb.
- You can show them evidence of false confessions and how they are coerced.
- You can teach them about the powerfully biasing effects of a false confession.
- And you can tell them about the Innocence Project’s numbers on how often we wrongfully convict based on false convictions. Ask them to look at the evidence. If they didn’t have that confession, would they convict?
Simple Jury Persuasion: Alpha and Omega Persuasion Strategies
Persuasion strategies that have the effect of making a story more attractive or palatable are known in the research as “alpha” strategies. They are the most commonly used and most commonly understood persuasion tools. For example, when a car sales person lowers the price of the vehicle you are considering purchasing–that can be seen as an “inducement” to purchase or an “alpha strategy”. There are other tools however, known as the “omega” strategies that are used to minimize resistance to the offer being given or the story being told.
Eric Knowles, Ph.D. has done a fair amount of research in the omega strategies. As Dr. Knowles concisely states on his website:
“Rather than adding inducements for action, I study how to identify and dispel opposition to change. Resistance can be avoided, minimized, confronted, reframed, acknowledged, distracted, used up, or turned against itself using a variety of effective, inexpensive, psychological techniques. If an action didn’t have resistance, there would be no need for persuasion.”
Not surprisingly, we like to think about Dr. Knowles ‘omega strategies’ in the context of litigation. But we turn them inside out a bit and think about how to use them to either decrease or increase resistance depending on your goal. (We’re funny like that.) Let’s take just one of the omega strategies and show how this can be done in a litigation scenario.
Anticipated feelings of regret: As we make decisions, we are anxious about making mistakes or somehow being disappointed in ourselves over choices we made. Addressing those fears directly can result in either an increase in resistance or a decrease in resistance—depending on your goal.
“The Defendants are saying the Plaintiff will not live to a full life expectancy so why fund a full life care plan? The one thing you can be absolutely sure of is this: No matter how much money you think she will need for care, no matter how long you think she will live—You are wrong! You can’t know for sure, no one can. So in a very real way, the question for you to answer is ‘What mistake would I rather live with? Would I rather run the risk that she exhausts the money she needs to live a life with some dignity, or would I rather run the risk that she will die prematurely, and her family will inherit what she leaves behind?’”
or
“The plaintiff is right. Ms. Jones has been horribly injured and no amount of money will ever bring her back to the life expectancy she may have had. It’s a very sad thing and we join you jurors and everyone else in this courtroom in feeling the tragedy of her injuries. As a society, we need to care for one another. But as individuals, we are responsible only if we are the cause of the injuries. My client, even though they are a company, is to be treated like a person. Like any person, in any courtroom, seeking justice. It is no more or less than any of us deserve. And the evidence is, that the person that is my client is not responsible for the needs of Ms. Jones. If we are, as a society, let’s gather somehow and have that discussion. But that gathering place should not be this courtroom, and the responsible party is not my client.”
There are other omega strategies, including ‘disruption’ (asking for the unexpected which decreases resistance) and ‘exposing deception’ (“you’ve been fooled by the other side already” which will increase resistance). Using these strategies effectively in litigation requires you to think creatively. Instead of thinking of ways to change the juror’s minds, think of how you can increase resistance to the other side’s case and decrease resistance to your own case.
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