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Simple Jury Persuasion: Keep them from going with the immoral flow!

Friday, January 14, 2011
posted by Douglas Keene

This isn’t a ‘feel good’ post about research into how we are driven to do good. Instead, it’s a post about how we don’t mind doing bad if it’s easier than doing (the more difficult) good. Those folks who advertise with the ‘easy’ button know a good thing when they see it. And it’s an important issue to keep in mind when you are engaged in efforts to persuade.

It seems to be about being lazy and preferring to simply ‘go along to get along’ or to “lie by omission, cheat without doing much legwork, or bypass a person’s request for help without expressly denying them”.  If we can close the elevator door in someone’s face and make it appear accidental—we will.

Turning a blind eye to what we ought to do is easier than actively doing the wrong thing. Researchers (Teper & Inzlicht, 2010) describe this tendency by summarizing what past research shows:

it is easier for people to refrain from engaging in moral behavior than it is for people to explicitly refuse acting morally, thus actively transgressing”.

They give the example of research (Johnson & Goldstein, 2003) where people were asked if they would like to “opt out” of an organ donation program (an active transgression) rather than choosing not to opt in (a passive transgression). Fewer people ‘opt out’ (and thus actively transgress) than those who are given the opportunity to simply not opt in. As Teper & Inzlicht conclude:

it is more difficult for people to directly deny their help or to actively break rules than it is for them to simply avoid acting prosocially”.

In litigation advocacy, the applications of this research are straightforward. You want to frame jurors’ choice in as active a way as possible:

“Your choice is simple. You either award enough money to cover costs for care for the entire projected life expectancy or you let the plaintiff run the risk of living her last years in poverty.”

“Your choice is simple. You either recommend death or life for my client. With life, there is hope for redemption. With death, there is not.”

“Your choice is simple. You have the power to cripple [the defendant corporation] and our ability to fix problems. You either shut us down or give us the chance to make this right.”

And so on. An active challenge that represents making the world better will be harder for the jury to refuse. You might also use one of our favorite techniques to reinforce the likelihood jurors will see this choice as about their moral center and about the fact that they are truly good people.

Teper, R., & Inzlicht, M. (2010). Active transgressions and moral elusions: Action framing influences moral behavior. Social Psychological and Personality Science

Johnson, E. (2003). MEDICINE: Do Defaults Save Lives? Science, 302 (5649), 1338-1339 DOI: 10.1126/science.1091721

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