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Simple Jury Persuasion: Don’t tell me what to do!

Monday, February 27, 2012
posted by Rita Handrich

My [newly turned] 18-year-old daughter loves this phrase. She loves many such phrases and I have learned to become non-reactive over the [eighteen] years I have known her. So as I read the title of this article, I grinned as I thought of my newly adult youngest child. Herein lie lessons for trial lawyers attempting to emotionally reach jurors (as well as parents of young adults everywhere).

Courtroom communication requires telling a story that will resonate with jurors and lead them to support your view of the case, client, and facts. In service of those efforts, we often attempt to elicit the empathy of jurors for our own client and situation.

Some jurors see this as ‘spin’ or ‘manipulation’ and resent it. Other times, attempts to use empathy can backfire if jurors are threatened by the random nature of the situation and the injuries to the plaintiff.

Researchers wanted to figure out if eliciting empathy resulted in motivation resulting from internal variables (like altruism) or a motivation based on external pressures. Their belief is that the type of motivation [i.e., internal or external] is related to the persistence and frequency of the helping behavior. First, they elicited empathy to examine how the ‘state’ (a fleeting condition) of feeling empathy would be related to willingness to help another person.

They found that using empathy to elicit helping behavior resulted in more internal desire to be helpful. Then they looked at whether a personal tendency to be empathic toward others would result in a greater desire to help. They found this to be true as well. In other words, those inclined to be thoughtful of others also tend to be helpful to them.

So they did one more study to see if participants who were instructed to emotionally involve themselves in the story of a depressed woman (“vividly imagine how this would be”) would be more willing to help her than those told to be “as objective as possible” and to avoid “getting caught up in imagining what this person has been through”.

These are interesting instructions as they are akin to directives many jurors will hear in personal injury cases (depending on what side is talking to them). The findings from the third study were consistent with the earlier studies: when participants ‘empathy was activated, they were more internally motivated to offer aid.

It may be part of why one of our favorite litigation strategies works so well. It elicits empathy with no judgment attached. It simply asks every individual on the jury to access their best self. Indirectly, it challenges them to take the perspective of the injured other, elicits their empathy and activates their internal desire to make things right.

Pavey, L., Greitemeyer, T., & Sparks, P. (2012). “I help because I want to, not because you tell me to”: Empathy increases autonomously motivated helping. Personality and Social Psychology Bulletin

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