“‘Attitude alignment’ refers to the tendency of interacting partners to modify their attitudes in such a manner as to achieve attitudinal congruence.” (Davis & Rusbult, 2001)

Researchers have studied this phenomena for years. We want to share two ways this concept is studied: attitude alignment between romantic partners and attitude alignment between strangers. The way strangers persuade or influence each other is obviously different than between people who know and trust each other. Or at least we have to hope so.

[Please put up with a bit of psychobabble here.]   It turns out the important variable is that of normative influence versus informational influence. Romantic partners tend to use normative influence—as in applying peer pressure aimed at the partner’s desire to be liked/loved—to obtain the expressed attitude change of their partner. Strangers, on the other hand, rely more on informational influence—focusing on issue-relevant matters and offering stronger arguments in support of their opinions.  Have you ever had your spouse or date annoyed at you for being hyper-rational when what they wanted was for you to be charming and cajoling?  There you go!  Or maybe that was just me…

When we apply this notion to jurors—who are generally strangers to each other—the importance of giving jurors the information to take back to the deliberation room becomes clear. Peer pressure to conform (the exertion of ‘normative pressure’) is less likely to be effective than focusing on relevant matters and offering strong arguments for their differing opinions (the exertion of ‘informational influence’).  For those jurors who are emotionally driven, they need more of the normative influence, but overall the informative is more powerful.

This past year, we heard a fair amount about ‘hold-out jurors’ who would not support a death penalty sentence (for example, here and here). The death penalty is a unique circumstance with strong feelings on either side and deeply held values that may make consensus impossible.

In litigation situations which are not culminating in literal life and death decisions, it helps to give jurors clear evidence and information that they can take back to the jury room.

• Go through the jury charge item by item and talk to jurors about the evidence you have presented that supports your desired finding on each issue.
  • When there are multiple pieces of evidence to support your assertions, remind the jurors of all of them.  Jury instructions may say that the verdict is about the quality of the evidence, not necessarily the quantity of it, but jurors often disagree.  They like piles evidence.
• Memorable visual exhibits and demonstratives can also support your case in the deliberation room. Remind jurors that a specific graphic shows the evidence for this specific issue on the charge.
• In case planning you want to start at the end (with the jury charge) to plan how you will present the case to the jurors. What evidence supports what aspect of the charge? What visuals can help jurors understand the relationships in this part of the charge?

Know what jurors need to know to apply informational influence and achieve true ‘attitude alignment’ in the deliberation room.

Davis, J.L. and Rusbult, C.E. (2001). Attitude alignment in close relationships. Journal of Personality and Social Psychology, 81(1), 65-84.

It’s tempting to push a hard sell to jurors. You have lived with the case for so long that ‘if only’ they knew the facts they would surely agree with you. You may even find yourself selling your case in voir dire. We’ve written about the hard sell idea before and we would say it’s what happens when you confuse argument with persuasion. We are not fans of the hard sell although we understand the temptation.

Is the alternative a ‘soft sell’, where jurors are offered what to conclude from the evidence? They may be told via expert witness testimony (“so what this means is…”) or through other direct examination queries (“so you could not possibly have done what the plaintiff claims you did”). The problem with the soft sell approach is that jurors may resent your drawing conclusions for them, or it can seem too simplistic. We are all familiar with the theories on different learning styles and certainly all aware of the lure of the internet as a juror ‘aid’ to understanding case facts.

It’s probably not surprising to regular readers of this blog that we are proponents of the ‘no sell’ approach to litigation persuasion.  It’s sort of like the overheard whisper of Joe Biden to President Obama at the announcement of health care reform legislation. That stage whisper went viral. It’s like the power of an overheard whisper.

We think the best way to the hearts and minds of jurors is to tell a story that contains all the dots and allow jurors to connect them on their own.  The gentle stretch to that is to have witnesses testify about how they connected the dots, so the jurors can be comforted that if they go there, too, they won’t be alone. To trial lawyers it can feel like working without a net. The reality is that a simple story, told honestly and clearly, with structure clarified through the use of timelines and terrific graphics, lets jurors use hindsight productively to see your case theory/story clearly.  Do it with thematic repetition, and the perspective sinks in.  It is scary the first few times—this idea of trusting jurors. The advantage is that jurors sense your trust in them and it inspires them to be the best versions of themselves as they deliberate.

Newcomers to the observation rooms in focus group facilities are often taken aback by thinking participants are staring at them through the glass. What they don’t initally realize is that on the participants’ side of the ‘window’ is a huge mirror. Jurors check their hair. The fit of their jacket. They check for food in their teeth. And they watch themselves while they are talking. It is an interesting reminder of how frequently our self-preoccupation intrudes into our thoughts on other matters.  To paraphrase the great Willie Nelson song, “We are always on our minds…”

Researchers have found time and time again that when we think we are being watched, we behave better. We are more thoughtful. More principled. In short, we are the best versions of ourselves.  This starts when we are quite young. Researchers offered children Halloween candy (“take just one piece”) and then turned their backs. Kids who had to see themselves taking the candy in a mirror complied with the request to “take just one piece” more often than kids who did not face a mirror.  Similarly, when college students were exposed to mirrors in an experiment on self-awareness, they littered less than students not exposed to mirrors.

We’ve seen this in our pretrial research also. You don’t need mirrors to raise self-awareness. What we’ve found is that if you make jurors aware of their biases (without shaming or humiliating them), they are less likely to act on those biases. We’ve written about this in the context of racism here and here and here.

We saw this most powerfully in a recent case where jurors were told the story of a family from another country who had sought medical attention in the US. Horrible and preventable things happened to their child. Jurors focused on whether the family was a charity case, why they were staying in the States rather than returning to their home country, whether they had entered the country legally or by nefarious means, and why they had not been easier for the physicians to interact with around care issues. The tone was toxic and heated.

We told the story a second time to a different group. This time we told the jurors this was an affluent family who had come to the States for every major medical issue in the past ten years. This group (demographically identical to the first group) was much more focused on the loss, the mistakes, and the negligence. While there were still some expressions of veiled racism—the tone was much more tentative and apologetic. And others rebutted the bias with case facts.

The difference was in raising the flag of self-awareness. You don’t need a mirror to make this sort of impact. You simply need to subtly raise the specter of the possibility of bias and that results in jurors who are more self-aware and more likely to act as the best versions of themselves possible.

My first car was a 1968 Volkswagen. Robin’s egg blue. Twelve years old when I purchased it and lovingly restored by a retired man who brought it back to like new condition. Bad defrost system. Non-existent air conditioning. Way fun to drive. I loved that car. Mainly because it was my first.

Volkswagen played up the ‘ugly’ VW in their ads. They pointed out that it was not beautiful like other vehicles. They focused on safety and quality control. They turned the weakness (“it’s funny-looking”) into a strength. One of their slogans was “Ugly is only skin deep”. They giggled at the lack of beauty and played up fuel consumption, price point, German engineering and quality. It worked. VWs were everywhere.

You can put this idea to work in litigation advocacy. Part of the reason VW advertising was so persuasive is that they identified weaknesses first. They were therefore seen as modest, honest and trustworthy. The idea has actually been examined in the context of litigation advocacy. Back in 1993, Williams, Bourgeois and Croyle looked at what happens if you expose a weakness your opponent will expose given the chance. They called this ‘stealing thunder’. What they found was that if you raise the bad fact yourself, it plays well for you. If, on the other hand, you let your opponent raise the bad fact—it has twice the impact. Jurors see that you did not tell the whole truth—they do not like you as much and they certainly do not trust you.

So be brave. Get out in front of your bad facts. Turn that weakness into the strengths of likeability and trustworthiness.

Robert Cialdini is perhaps the most well-known voice of persuasion. He knows how it’s done and how to do it right. He also has a sense of humor and we like that. He explains how Luke Skywalker turned Darth Vader from the pursuit of evil through the use of ‘social labeling technique’.

Luke Skywalker: I’ve accepted the truth that you were once Anakin Skywalker, my father.

Darth Vader: That name no longer has any meaning for me!

Luke Skywalker: It is the name of your true self. You’ve only forgotten. I know there is good in you.

In brief, you assign a label to a person and then make a request of them consistent with that trait. Tybout and Yalch used this technique in political contests to increase the likelihood of voting among citizens (“you are above average and therefore more likely to vote and participate in community events”). Voting was increased almost 10%!

Cialdini recommends use of this strategy to cement relationships with your clients (“we appreciate the trust you have placed in us and we will make good on that trust”). Or to encourage a gifted but tired associate (“you are so hardworking and perseverant—remember the last case where you….”). And, of course, he cautions against using this for evil. Only assign trait labels that are accurate.

As in a comment to the jury—“I’ve been impressed with your attention and consideration of the evidence and I know you will take that same energy into your deliberations”. While Cialdini doesn’t know our readers—we do. And we know you would never use this technique for evil. We sense much good in you…

It isn’t enough that your witness is likeable.  Although it doesn’t hurt. You want your witness (and your parties and your own self) to go beyond being likeable. You want jurors to actually identify with your witness (your party and yourself). What’s the difference?

Liking only requires positive sentiment. We see someone positively. We see our friends positively.

Identification involves a ‘likeness’ to the other. We see ourselves in them. We understand why they felt what they felt and why they did what they did. We think their actions are relevant to our own lives.

When we both like and identify with another, it may lead to empathy that, in turn, can result in less resistance to persuasion because we ‘understand’ the party to the litigation.

In other words, “liking + identification = impact”. Clarence Darrow famously said the “main work of a trial attorney is to get the jury to like his client”.  In 2010, we’d take it a step further—the main job of a trial attorney is to get the jury to both like and identify with the client.

The Omega strategies in persuasion are much less well-known than the alpha strategies (direct persuasive tactics). The Omega strategies are subtle, often indirect and work to reduce the target’s resistance to being persuaded. As we did with the Alpha strategies in last week’s Simple Jury Persuasion post, we’ll list the strategies with brief definitions and then describe how you would use these tactics in the courtroom. Some of them are useful while others are not such a good fit for the adversarial environment of trial.

• Sidestep resistance (redefine the interaction—you are consulting not persuading). There are multiple strategies you might use to sidestep resistance. Knowles & Linn (2004) offer several of these that seem to fit in the courtroom.

Redefine the interaction: You can reframe the trial process as a sharing of facts with the jury to allow them to weigh and examine the story and determine what the best outcome is for the parties involved.

Minimizing the request: Instead of requesting a large sum of money (or opposing an amount in damages)—break down the damages you want into smaller units and explain ‘why’ that is an important figure.  Then move on to the next element of damages and explain why that one is deserved. And so on. The leap from one smaller request to another smaller request is easier for jurors than a lump sum request.  Research has also suggested that the more lines on a verdict form, the more money is awarded.

Raise the comparison: Instead of asking for the Cadillac damages package—ask for a nice Chevy with lots of extras. Then tell the jurors about the Cadillac package. This makes your very nice Chevy look reasonable in comparison.  Offering choices to the jury conveys to them your trust in their judgment.

• Address resistance directly (address target’s reluctance by lowering costs, offering guarantees, et cetera)

While this could be risky, it has its place in your strategy toolbox.  And it needs to begin during voir dire.  Talk about why good people could feel reluctant to accept your view, and why that pull needs to be set aside.  Allow them to feel okay about the feeling, and ease their transition to a favorable conclusion.  We have come to believe that it is unlikely that you are going to come up with a point of resistance that some alert juror isn’t already stuck on.  You need to take control of that conversation if you can.

• Address resistance indirectly (build target’s confidence, self-esteem, self-worth to remove reluctance)

Help jurors understand complex information with clear and paced testimony (including solid visuals to help in cognitive processing). As jurors become ‘more expert’ in trial-specific information, they will feel better about their capacity to process the evidence and less resistant to coming to a decision supportive of your client.  In closing, observe to the jury that some had said during voir dire that they didn’t feel qualified to judge, as they didn’t know anything about engineering, or medicine, or banking… And then remind them that you promised to provide them the necessary information, if they would provide the commitment to learn and the open mind necessary to understand.  Now they have what they need.

• Distract resistance (distract target to interfere with their focus on counterarguments)

This is the Boston Public or Ally McBeal tactic of courtroom litigation. We don’t recommend this one either. You run the risk of appearing unprofessional or manipulative.  In criminal cases, though, it can be appealing when the stakes are all-or-nothing.

• Use resistance to promote change (frame message so that resistance to the message promotes change—as in ‘reverse psychology’)

You probably are not surprised that we feel uncomfortable using reverse psychology (“members of the jury, please find for my opponent”) in the courtroom. However, there are also ways you can decrease resistance by simply acknowledging the resistance exists. We blog about this here. In court, you may want to use this idea as follows: “You may struggle to accept this, but…” or “This may be difficult for you to believe but it is true that…”. For some reason, mentioning resistance does not strengthen it but rather diffuses it!

Overall, the use of omega strategies in the courtroom is more complex than using the alpha strategies but may be very worthwhile. We hope you’ll consider these ideas as you plan your next trial.

Knowles, E. and Linn, J. (2004). Approach-Avoidance Model of Persuasion: Alpha and Omega Strategies for Change. In E. Knowles & J. Linn (Eds.). Resistance and Persuasion (pp. 259-282): Lawrence Erlbaum Associates: New Jersey.

Today’s is a long post.  Get a beverage.

We’ve blogged before on alpha and omega strategies in persuasion but want to take a bit more time to explain the differences between the two strategies. This week, our Simple Jury Persuasion tip focuses on the alpha strategies in persuasion. Alpha strategies are a direct form of persuasion where the goal is simply to entice the listener to join with you on the particular topic. The following are among the most common alpha strategies—you’ll see familiar ideas here—but applied to the courtroom rather than to sales (the most common forum in which these principles are taught).

Make messages more persuasive (create strong arguments)

We’ve written almost 30 posts on increasing message persuasion thus far—so this isn’t a short answer. Read through our posts on simple jury persuasion and remember to make your case story vivid, emotionally appealing and, where appropriate, use humor.

Add incentives (“inducements” for compliance)

Most jurisdictions will not allow you to slip jurors extra cash or even chewy chocolate chip cookies. But you can let jurors know that you respect and like their willingness to participate on the jury and that you see their thoughtful consideration of the evidence positively. In other words, communicate that you respect and like them.  Recognition, admiration and respect are powerful inducements.

Increase source credibility (make the source more expert or attractive)

This refers to you, your witnesses and your client. See our blog posts on witness preparation for insights on preparing your witnesses and your client. We also have multiple posts on presenting yourself (for example, here and here and here). You also want to pay attention to how you present your expert witness. Overall, pay attention to a unified and credible presentation for everyone involved in your case.

Provide consensus information (show that many, many people are doing it, thinking it, wanting it)

This can be tricky in the courtroom setting. You can imagine a statement like “all my past jury trials have resulted in acquittals” would not go over so well with either your opponent or the judge! You can use this concept to talk to your expert witness during their testimony. Ask them to talk about alternative hypotheses to their testimony (for example, the opposing side’s expert witness position) and have them address why the opposing expert’s ideas are not the consensus of the scientific community. Or, if the opposing expert does represent the consensus opinion, have your expert talk about why that consensus opinion is in error, or how it doesn’t fit the current picture.

Emphasize scarcity (few opportunities, few products, scarcity makes products more attractive)

Another tricky concept to use in the courtroom. Focus here on your appreciation for the juror’s time (see strategy #2) and let them know you will present your case as briefly and concisely as possible.  Their time is scarce, but in a hurried world, so is vigilant thoughtfulness and careful consideration.  You are asking them for the trial trifecta—time, attention, and integrity.  You know they can deliver, and you appreciate it. You want to be careful about encouraging them to deliberate briefly—as time pressured deliberations are more likely to result in shortcuts (such as using stereotypes for processing information) in the deliberation process. While there are times your case will benefit from what is called heuristic processing, it’s a risky business.

Engage a norm of reciprocity (small favors from you obligate the recipient to return the favor)

Small favors in court can be many things.  It is seen in asking the judge to allow a bathroom break, or noting you are trying to make technical information ‘make sense’ because you found it confusing when you first heard it, or self-effacing smiling with the jurors when they laugh at something you did (or forgot to do). Reciprocity can be enhanced if your likeability and consideration for jurors is enhanced. Perhaps their reciprocity to you comes in the form of repeating your case themes in the jury room. Who knows?

Emphasize consistency and commitment (create small actions or reframe target’s prior actions to seem consistent with the requested behavior)

Getting jurors to commit to a small action is an effective way to get them to comply with a later request. So, for example, getting them to commit to hearing the whole story before leaping to judgment in voir dire can make them more likely to deliberate carefully if you request that in your closing statement.

These 7 alpha persuasion strategies are ones you can employ over and over again in the courtroom but they do require some planning up front in terms of how you are going to use them/incorporate them into your case presentation. Our next Simple Jury Persuasion post will be on the omega strategies (indirect, resistance-reducing techniques) and how you can use them in the courtroom.

Knowles, E. and Linn, J. (2004). Approach-Avoidance Model of Persuasion: Alpha and Omega Strategies for Change. In E. Knowles & J. Linn (Eds.). Resistance and Persuasion (pp. 259-282): Lawrence Erlbaum Associates: New Jersey.

Many of us know about counter-factual thinking and use the story model as a guide to help us disrupt juror tendencies to engage in counter-factual thought (i.e., “if only she’d gotten a second opinion”). Counterfactual thinking results from hindsight bias (the tendency to believe events are more predictable than they actually were in the moment). You can also, however, use ‘anticipated future regret’ as a persuasive device with jurors.

This is called ‘pre-factual thinking’. If counter-factual thinking represents thoughts such as “if only he’d taken his usual route to work”, pre-factual thinking is represented by such thoughts as “what if I find it cheaper somewhere else?”.  In essence, you would have jurors consider their own future regrets as to any decision they may make:

• “No matter what number you choose for future healthcare needs, you’re going to get it wrong.  Because no one can be sure.  So the question becomes— ‘Which mistake would I rather risk?’  Would you rather risk that [plaintiff] has a bit more money than necessary to provide medical care, or risk that the money runs out too soon, and she lives her last years in poverty?”

• “This is a small business with a really good idea stolen by their competitors. Would you rather tell them ‘too bad’ and end their efforts, or reward their creativity and encourage additional development?”

• “This company is huge. You’ve all heard of them. Most people have purchased their products. Will you feel better about rewarding a plaintiff going after ‘deep pockets’ or helping a large business keep providing the products we all use at a reasonable price?”

Think about how you can present rhetorical questions to the jury to evoke concerns about future regrets. Pose questions to witnesses that allow them to address potential ramifications of one choice over the other. Use closing statement to again cue the specter of future regrets. Tell your story effectively. Help jurors consider the impact of their choices.