Researchers have found that the mere act of posing a question such as “How likely are you to buy a Starbucks coffee today?” increases the likelihood that the person asked will do just that. It’s called the ‘mere measurement effect’. By simply having the question posed, we are likely to fulfill it positively. And what is powerful is that we do not see the question as intending to persuade us (therefore, we do not attempt to resist).

The researchers puzzle over the ethical implications of this finding for survey research (what if by simply asking people how likely they are to engage in risky behavior, you actually increase the probability that they will?). We are more interested in the application of this finding to jury deliberations.

• How likely are you to speak up in deliberations?

• How likely are you to insist that the reasons for the jury’s verdict don’t include [sympathy/race/emotion, etc.]?

• How likely are you to carefully consider the evidence presented?

• How likely are you to listen carefully for contradictions in testimony that alert you to a lack of truthfulness?

• How likely are you to be the sort of juror you would want deliberating in a case that you might file for yourself?

The possibilities are endless. Like any valuable tool, you do not want to over use it. But when you want something to happen and don’t want the jury to resist your directive—wield the ‘mere measurement effect’.

How likely are you to try this strategy?

Williams, P., Fitzsimons, G. J. and Block, L.G. (2004). When consumers do not recognize ‘benign’ intention questions as persuasion attempts. Journal of Consumer Research, 31, 540-550.

We talk a lot about how race plays a role in litigation but we also need to talk about the role of the dominant culture and sub-cultures. In this country, the dominant culture is white. There are subcultures of multiple varieties but members of the subcultures (whether they be Hispanic, African American, Vietnamese or Asian) have special knowledge of both the dominant culture and the subculture because they live in both worlds. This knowledge can be powerful on a jury.

We did a focus group a few years ago where the plaintiffs were an African American family and the grandmother matriarch of the family was deposed on video. The story was a very sad one. Her daughter had died in an industrial accident, leaving young children who were being raised by the grandmother along with their father. Her testimony was stoic and the mock jurors were not impressed with her. They spoke of her lack of emotion and interpreted it as her being in this “for the money”.

And then a thoughtful young Asian male spoke up. “She reminds me of my Grandmother,” he said. And he explained her stoic attitude as one stemming from pride and discomfort in showing emotion to strangers. And the room turned. Jurors wanted to find reasons to like the Grandma. Seeing her seeming distance and aloofness as pride mixed with grief made sense to them. They imbued a young Asian male with knowledge of the African American sub-culture because he said something that resonated with them.

The lesson for the litigator is simple. If you have witnesses or parties who are immigrants, members of ethnic minority groups, or simply present in a fashion that makes them appear odd or uncaring—frame their presentation as a likable and sympathetic characteristic.

• Establish an identity for your witnesses, both through your opening statement and through testimony that precedes their own.

• Tell jurors ‘why’ the witness comes across as they do.

• Have other witnesses testify as to their integrity, warmth, caring, and discomfort in strange environments.

• Show them caring for family members or grandchildren in a loving way.

• Show them with pets or in volunteer activities.

Clarence Darrow said a lot of memorable things. One of them was about the main job of the trial lawyer being to help the jury like his (or her) client. His belief was that if the jury likes your client, they will find ways to support your client. We believe that too.

Brumbaugh, A. (2002). Source and nonsource cues in advertising and their effects on the activation of cultural and subcultural knowledge on the route to persuasion. Journal of Consumer Research, 29, 258-269.

The study of rhetoric is rooted in classical Greek philosophy and the mastery of rhetoric/argument was then seen as a desirable skill. ‘Rhetoric’, in modern times, is often used dismissively and seen as meaningless and perhaps manipulative as intimated in the phrase “mere rhetoric”. During the Presidential campaign, President Obama’s gift of rhetoric was often used to minimize the impact of his message—“oh he’s good at talking all right, but what is he saying?”

In the courtroom, you can use the same strategy. Frame opposing counsel’s oratory as ‘rhetoric’ and that becomes a code word between you and the jury for “meaningless and perhaps manipulative”. You, on the other hand, have “reality”—a truthful and honest account. (Just make sure you back up that assertion with some facts.)

Other strategies to underscore your adversary’s verbiage as meaningless rhetoric could include presenting yourself as consistent (where your opponent is inconsistent or ‘flip-flopping’) and producing scientific data to back up your claims (Symon, 2000). These tactics make your own presentation persuasive while throwing doubt onto your opponent’s presentation.   [Because these terms can be culturally loaded due to their use in the political sphere, be careful in choosing your dismissive or laudatory terms.  We recently advised a client to change his description of a wildly creative witness from “rogue” to “an innovator” because of the association with a former governor and budding news commentator.]

Symon, G. (2000) Everyday rhetoric: Argument and persuasion in everyday life. European Journal of Work and Organizational Psychology, 9(4), 477-488.