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Archive for the ‘Simple Jury Persuasion’ Category

We are again honored by our inclusion in the ABA Blawg 100 list for 2014. If you value this blog, please take a moment to vote for us here in the Litigation Category. Voting closes on December 19, 2014. Doug and Rita

message framingTrial lawyers (and others who communicate to persuade) are always looking for a “silver bullet” with which to gild their courtroom presentations. Today’s research offers a glimpse at this holy grail… as long as your listeners are either all male or all female. But fear not, there is also something very useful embedded in the results that allows you to improve the receptivity of a mixed gender audience to your message.

Researchers wanted to see if varying message delivery and message framing would make a difference in how the same message was perceived by male and female listeners. In other words, they wondered if you need to communicate differently to a male audience than to a female audience. They examined 2 kinds of message delivery and 2 kinds of message framing in a study focused on being physically fit.

To explore this, they created four (45 second long) videos about the importance of regular exercise (a male actor played the part of narrator “Dr. Linton”, a health expert). The messages on the video were delivered in either an eager or a vigilant style and with either a gain or loss framing. (That means there were four versions of the video: eager delivery style with either a gain message or a loss message or a vigilant style with either a gain message or a loss message.)

On the videos, message delivery was either “eager” or “vigilant”:

Eager: This message delivery system is framed in terms of ideals and aspirations–exemplified by openness to possibilities and not wanting to miss opportunities for improvement. In this condition, the speaker “leaned and reached forward using upward and open hand motions. He also used an upbeat and excited tone of voice.”

Vigilant: This message delivery system is framed in terms of safety and security–exemplified by obligations, duties, and rules and guarding against mistakes and loss. In this condition, the speaker “presented the message while leaning backward and using downward, closed hand motions along with a more somber and staid tone of voice.”

The videos also had 2 kinds of message framing, gain or loss:

Gain: This message was framed to help the listener see the potential gains made from exercising. Here is the gain-framed message used in the study [keywords are in bold]:

Well, that’s a good point. Of course not everyone is physically able. Still, in general I am eager in my practice to encourage people to begin exercising now! A growing body of medical research shows that exercising has multiple benefits. By exercising daily, you stand to gain energy, muscle-strength, and the ability to maintain an ideal body weight. You can also gain optimal mental health and brain function. Overall, with regular exercise you gain both physical health and mental health. These are good reasons for why exercise should be a non-negotiable part of your daily routine. Again, as a health professional, I am eager to help promote positive lifestyle choices.

Loss: This message was framed to help the listener see the ways exercise could keep one from losing physical function. Here is the loss-framed message used in the study [keywords are in bold]:

Well, that’s a good point. Of course not everyone is physically able. Still, in general I am vigilant in my practice to encourage people to begin exercising now! A growing body of medical research shows that not exercising has multiple costs. By not exercising daily, you stand to lose energy, muscle-strength, and the ability to maintain an ideal body weight. You can also lose optimal mental health and brain function. Overall, without regular exercise you lose both physical health and mental health. These are good reasons for why exercise should be a non-negotiable part of your daily routine. Again, as a health professional, I am anxious to help prevent negative lifestyle choices.

What the researchers found was an intriguing gender difference in how the message was received.

Men preferred the eager message delivered in a gain frame while women preferred the vigilant message delivered in a loss frame.

So, based on this research, when speaking to men you would use one style (eager + gain)  and when speaking to women you would use another style (vigilant + loss) for maximum effectiveness. That is all well and good, but since it is unusual to have an all-male or all-female jury, what is the lesson? Fortunately for us, there is more to what these researchers found than just a gender difference in preference for how a message is delivered. What they also found was that it is important for your message delivery and message frame to match.

“One practical implication of our findings is to encourage those who wish to influence others to match their body language to their message. One should eagerly emphasize the benefits to be gained or cautiously present the potential losses that can be avoided by complying with the message.”

This may seem simplistic and to be common sense advice. However, it is something to keep in mind when you are preparing an expert witness. They can speak enthusiastically with regard to benefits and also cautiously about the losses that can be avoided and thus appeal to both male and female jurors who are listening to their testimony.

You may already prepare your experts to use this sort of dually delivered communication. But, now you have a way to understand another reason why it’s effective.

Jacks, J., & Lancaster, L. (2014). Fit for persuasion: the effects of nonverbal delivery style, message framing, and gender on message effectiveness Journal of Applied Social Psychology DOI: 10.1111/jasp.12288


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convincing graphWe’ve written about the lack of evidence for the much-feared “CSI Effect”. But here’s an interesting study about the simple “appearance of science” as opposed to the bells and whistles of high-tech “CSI”-like evidence. All it takes is the use of “scientese” (scientific sounding words)–not to be confused with “lawyerese” (which we wrote about here earlier). Or, if you don’t want to use those big and confusing words, try a simple graph like the one illustrating this post. Or presenting a formula like this: C21H29FO5. Either approach, say today’s researchers, will result in more people being convinced. And get this–in a counter-intuitive twist, those who believe more in science will be more persuaded! Even when they can’t tell you what the “scientese” means.

It’s sobering but, say the authors, there is a reason scientific findings are often communicated with graphs and formulas and even “trivial statistics” to make the article or news release more persuasive. What is that reason, you might ask? Because it works, respond the authors.

Much as we want to believe that facts matter, we’ve all seen cases where they really don’t. Often, the extra-evidentiary fog rules the day and mock trial deliberations are frighteningly unfocused until the facilitators arrive and begin to unravel where things went so very, very wrong. While it is distressing to watch, it is also extremely useful since it shows us how to plug holes in the case narrative so that the facts can matter (or at least jurors who support your case will know what they are and can get others back on track).

Here is some of what you can find in this article:

Brain images are incomprehensible to nearly all of us. What we know though, is that brain scans are scientific. So, to some of us at least, the presence of the brain imagery could signal scientific support. (In other words, it isn’t the “pretty picture” of the brain as much as the association with scientific support that draws the observer in. When this happens, the brain image serves as a sort of signal that there is a scientific basis for the claims.)

On the other hand, the graphs used in this study were not at all like pretty pictures of brain scans. They were simple, almost crude. (The illustration for this post is an example of the level of simplistic graphs the researchers used. Their rationale was that while brain imagery may confuse–these simple graphs would be easy for the observer to understand and gather that they add nothing to the observer’s understanding.) But they did. Participants in one study read information about a new medication which enhances immune function and thus reduces the likelihood you will get the common cold. Half the participants were shown a graph (see below) and half were not.

halo effect insert

The graph was powerfully persuasive. Participants who saw the graph said the medication was more effective and believed the medication would truly reduce illness. “In other words”, say the authors, “while only 2/3 of the people believed the medication would reduce illness without the graph, all but one participant in the graphs condition believed this.”

So the researchers went on to complete more research. They found that those participants who believed more strongly in science were more likely to be persuaded by the graphs. They also found that when they gave a chemical formula to participants (e.g., C21H29FO5), they were also more persuaded. In other words, the more “sciencey” the data seems to be, the more persuasive it is.

The authors today make several salient points we would do well to keep in mind:

People who were given graphs or formulas along with a narrative explanation of the medication had a greater belief in the medication efficacy. (This was true in not only a campus population, but also in an on-line panel and a general population sample.)

Graphs seem to signal a scientific basis for the claims. The effects of graphs hold true even when the graph adds no new information and does not help in deepening understanding of the information or in comprehending the data. The more you believe in science, the more powerfully persuasive the graph.

Let’s make this perfectly clear: a simplistic looking graph with no bells or whistles and that adds nothing to observer comprehension has the power to persuade. Because it’s “sciencey”.

Tal, A., & Wansink, B. (2014). Blinded with science: Trivial graphs and formulas increase ad persuasiveness and belief in product efficacy Public Understanding of Science DOI: 10.1177/0963662514549688

Images from article above.

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not-in-my-neighborhood-coverA couple of years ago we were working for the Plaintiff on pretrial research for a case against a large national healthcare corporation. The Plaintiff had been injured quite dramatically due to what she alleged was the Defendant’s lack of care (i.e., negligence) in selling her what company executives knew to be a pharmaceutical product scheduled for recall. The mock jurors listened carefully and were horrified by the extent of her injuries and then began to work hard to protect themselves from the randomness of the events.

“Well, I would have done some research first to see if there was any bad press on the product.”

“I always read all the fine print. I NEVER simply accept their terms without carefully reading every single word.”

“Even though this is a very common product and her reaction was very rare, she had a choice on whether to use the product so she has responsibility. They certainly never meant to hurt her.”

The facilitator listened to all the comments and simply continued to present the materials. As the day went on and jurors heard the breadth and depth of the Plaintiff’s injuries, they became more and more mired in their certainty that such a fate would never befall them. (We commonly see this in pretrial research where a seemingly random, and thus terrifying, event has occurred that results in horrible injury to or death of the Plaintiff. Mock jurors feel threatened and unsafe and construct narratives to defend against that fear.)

At the very end of the day, the facilitator asked if this behavior (by the Defendant) constituted business as usual. The majority of the jurors opined it did. Then the facilitator asked if this was how they wanted businesses run in their community. That is, did they want this sort of behavior to be business as usual in their community. Jurors blinked and no one spoke for almost 30 seconds. When they did begin to speak, they focused on righting a wrong and on sending a message. They saw the opportunity to protect themselves by awarding exemplary damages to the Plaintiff. Instead of blaming the victim (thus creating a buffer for feeling safer themselves) they could punish the Defendant (and both help the Plaintiff and make their community safer).

In this particular instance, the mock jurors quickly shifted the frame of their reaction, and found for the Plaintiff– they experienced empowerment almost that fast. Sometimes, many times, that doesn’t happen. When an act of extraordinary injustice occurs and is perpetrated by a powerful entity, there is a tendency to give up and think your actions and choices will not make a difference.

Researchers on the East Coast recently published work illustrating this particular effect. They focus on how most of us believe we evaluate injustices equally but the researchers believe our sense/estimation of the power of the perpetrator leads us to apply justice unequally. The researchers refer to this effect as psychological numbing. In short, when we see a powerful perpetrator, we believe our actions will be less effective and we are less willing to join in an effort to sanction or punish them. When large numbers of people are harmed or killed by the powerful perpetrator, we see less possibility in obtaining justice than we do when a small number of victims are harmed.

Over two experiments, the researchers found that:

The more normative (i.e., business as usual) observers saw the unjust event as being, the less likely they were to feel their actions would change the events before them.

Observers assess perpetrator power as a means of assessing how effective their actions will be. They are less likely to take action against a powerful perpetrator than a less powerful perpetrator.

From a litigation advocacy perspective, when we apply the results of this research to our previous mock trial project–we understand it this way. Our mock jurors saw the national healthcare corporation as powerful and did not want to exert energies when it would likely make no difference at all. Once the question was posed as to how they wanted business to be conducted in their town, jurors felt empowered. They wanted to send a message that would be heard and felt by their local organization as well as the national corporation.

The power of the national corporation was brought to the local level (and thereby decreased). Our mock jurors knew the place and they knew their experiences with it. They did not want what had happened to the Plaintiff to happen to them, to their friends, or to their loved ones. It’s a powerful response to a shrug and casual comment of “that’s how business is done”.

“Is that how you want business to be done in your community?”

Glasford, D., & Pratto, F. (2014). When extraordinary injustice leads to ordinary response: How perpetrator power and size of an injustice event affect bystander efficacy and collective action European Journal of Social Psychology, 44 (6), 590-601 DOI: 10.1002/ejsp.2051


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3D-image-water-parkEvidence admissibility issues aside, the answer is, “only if you can do it as well as they did in the 3D movie Polar Express”. As it turns out, 3D isn’t that much more impactful than 2D unless it’s done really, really well.

Psychologists and neuroscientists studying emotion often use film clips for their research. So when these researchers from the University of Utah thought about the influx of 3D films, they wondered if those films would have more emotional impact than the older 2D films–especially for younger viewers (whom we might consider potential jurors). Theoretically, 3D movies heighten the emotional experience (since you really don’t know what to expect or when the character will suddenly reach out from the screen and take a swipe at you). These researchers looked at a few movies that came in both 2D and 3D versions (My Bloody Valentine, Despicable Me, Tangled, and The Polar Express).

Rather than asking their 408 undergraduate participants (between 18 and 64 years of age; 62.75% female; 80% Caucasian, 9.8% Asian, 7% Hispanic, 1.23% Black or African-American, 1.23% Native Hawaiian or Pacific Islander, and .98% as American Indian or Alaska Native) for their emotional reactions to the 2D and 3D movies, they hooked them up with electrodes and measured heart rate, skin conductance (how much they were sweating), and other physiological responses to film scenes during the duration of the five-minute clips they were shown.

What they found, in brief, was that whether a film was 2D or 3D didn’t really matter in terms of the participants reactions. While they reacted emotionally, there were no real differences in how they reacted to the 2D versions of the films versus the 3D versions–with the exception of small differences in “electrodermal responses” between the 2D and 3D versions of The Polar Express. (They reacted more strongly to the 3D version.)

The researchers underscore the fact that the clip was far and away the best example of the 3D technology in the study, and the differences measured were small. But, they say, overall, there were no real differences between the emotional impact of 2D and 3D films.

This is good news for litigation advocacy as the cost of creating a 3D film and animation is high compared to 2D, and the road would likely be fraught with legal wrangling before any 3D film (sanitized of undue influence) made it to the jurors. (You may be interested in reading a Canadian author’s perspective on forensic 3D animation in The Jury Expert.)

Bride DL, Crowell SE, Baucom BR, Kaufman EA, O’Connor CG, Skidmore CR, & Yaptangco M (2014). Testing the Effectiveness of 3D Film for Laboratory-Based Studies of Emotion. PLoS ONE, 9 (8) PMID: 25170878


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defendant is animalHere’s a pretty simple way for Prosecutors to motivate jurors to lock up a Defendant and throw away the key. It’s all about language. There are words you can use to evoke a more negative (animalistic) sense of the Defendant and there are words that, while still describing egregious behavior, are more neutrally descriptive. The researchers say that when the observer sees the Defendant as more animalistic, they recommend a harsher punishment because they see the Defendant as more likely to re-offend, and scarier.

Specifically, participants who were presented the case in the animalistic condition recommended “on average that the perpetrator spend an extra 1-2 years in prison, 33% more time than participants in the non-animalistic condition”.

Defendants who were seen as more animalistic “are viewed as particularly likely to continue to engage in acts of violence” and thus are sentenced to longer incarcerations.

Here are the passages the researchers had their participants read to evoke a sense of the Defendant as either an animal or not…

Animalistic condition: “At around 9pm, the perpetrator slunk onto the victims premises. He crept into the house via the kitchen door. He confronted the victim in the living room. He roared at the victim before pounding him with his fists. The attack was savage and the victim’s blood splattered on the floor, walls, and ceiling. The perpetrator dashed away from the premises via the kitchen door.”

Non-animalistic condition: “At around 9pm, the perpetrator stole onto the victims premises. He crept into the house via the kitchen door. He confronted the victim in the living room. He shouted at the victim before punching them with his fists. The attack was sustained and the victim’s blood painted the floor, walls and ceiling. The perpetrator ran away from the premises via the kitchen door.”

While the researchers acknowledge this sort of description of the crime is not typical of what is used in court–they do believe it is typical of what is often in the media and thus will likely influence people as they make decisions as to guilt and punishment.

From a litigation advocacy perspective, we know metaphors are powerful. Our brains respond to the use of metaphor on multiple levels. When animalistic metaphors are used to describe a Defendant, jurors (and media members in the courtroom) may become caught up in the imagery that is evoked from that language and demand a harsher punishment than might be objectively based on the act and the law. Prosecutors can subtly use this sort of metaphor to describe the behaviors and Defense attorneys will need to be vigilant to replace that imagery with something more human and relatable.

Vasquez, EA, Loughnan, S, Gootjes-Dreesbach, E, & Weger, U (2014). The animal in you: Animalistic descriptions of a violent crime increase punishment of perpetrator. Aggressive Behavior, 40, 337-344