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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Not only are ‘Pollyanna’ type people good lie detectors they are also good-hearted people in general. They “value relationships, prosocial behavior and smooth interpersonal interactions”. What wonderful jurors! Maybe. And maybe not.

Imagine that your case involves allegations of conduct that Plaintiff or Prosecutor feels is an assault on social values.  Behavior that Pollyanna would never engage in, and perhaps never even imagine.  Will they be optimistic and think the best of the person, or will they act with punitive vigor (even though that suggests negative thinking)?

According to the research, Pollyanna’s experience more distress about relational transgressions. Curious researchers wondered how that heightened reactivity might translate in the Pollyanna’s perception of communal behaviors [positive] and communal transgressions [negative]. Contrary to popular belief that Pollyanna’s see the best in everyone, the researchers hypothesized that Pollyanna’s would tend toward extremes–judging communal behaviors more positively and communal transgressions more negatively.

They were right. Although participants (across four different studies) were likely to view transgressions negatively, highly agreeable participants (the Pollyanna’s) were more likely than others to judge those behaviors negatively. What is intriguing is that the Pollyanna’s were more harsh when the negative behaviors were related to group or individual relationships. There were caveats:

Pollyanna’s only showed a negativity effect when they could clearly and unambiguously identify the transgression as relational/communal.

There had to be little incentive for the Pollyanna to “regulate away” (i.e., repress, deny, forget) an initially negative evaluation. Why? The researchers also discuss the “tension within the agreeable perceiver”. Essentially, Pollyanna’s are often in a bind because they have “private negative judgments that they cannot or will not express publicly (or would feel guilt for expressing)”. To compensate for this anxiety about public censure, researchers ensured that the Pollyanna’s could privately express their judgments.]

It’s an intriguing study for litigation advocacy. The Pollyanna will judge positive and negative behaviors more harshly and yet, may be averse to sharing those judgments publicly for fear of censure from others. (e.g., they don’t want to be seen as impolite or uncharitable in their public judgments). When you sit around a table with eleven peers where the entire goal is to express your opinion–that would be pretty threatening to a Pollyanna–at least if you think of Pollyanna traditionally (as all positivity, sunshine and light).

If, however, jurors were educated about the importance of judgment in litigation and the Pollyanna therefore saw it as a duty to be clear–even if negative–their behavior may differ. Pollyanna’s are more attuned to relational transgressions and that finding may have general relevance for the trial lawyer:

Criminal defense attorneys would likely want to avoid the Pollyanna as a juror since whether a crime against persons or a corporate malfeasance–the Pollyanna is likely to see the behavior as hurtful to someone and therefore want to punish.

Civil defense attorneys will want to be careful with the Pollyanna juror as well. If there is a way to see the case narrative as a transgression (and most likely there will be), the Pollyanna juror will react more negatively than other jurors.

Plaintiff attorneys may welcome the Pollyanna if the case themes involve harm to social fabric or relationships among the wronged parties. When the claim of Plaintiff is that they have been wronged, the wrong had better extend beyond their own personal and selfish interest. If a case narrative is well-told (and especially if the plaintiff has behaved positively toward others and still been transgressed against), the Pollyanna will be more inclined to embrace the plaintiff view.

It’s certainly an area well worth considering examining in pretrial research and voir dire. The Pollyanna may well be hiding within an exterior that looks like a leader and is highly persuasive. The balance could be in this person’s gentle hands.

Kammrath, L., & Scholer, A. (2011). The Pollyanna Myth: How Highly Agreeable People Judge Positive and Negative Relational Acts Personality and Social Psychology Bulletin, 37 (9), 1172-1184 DOI: 10.1177/0146167211407641

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Most of us are familiar with the strategy of destroying a reputation with a barrage of nastiness. We all bemoan the ‘negative campaigning’ that is ramping up in this election year. But the problem is–it works. That is, “if you throw enough mud against the wall, something sticks”. And as it turns out, it doesn’t even have to be that much mud. New research from the realm of politics has something to teach us about addressing everything from pretrial publicity to opening statements. It’s a somewhat sad commentary on our tendency to “fill in” missing negative information. And a clear directive to pay attention to what we say and don’t say.

Researchers wanted to know how to go about diminishing those people who support universally held values (like wanting what is good for the environment) without being seen as directly attacking the value itself. Their belief was that political communicators “vilify their opponents as extremists in order to discredit their appeals to common values”. Further, they believe that “extremism is depicted as the error of turning a virtue into a vice through dogmatic, single-minded devotion”.

Through a series of experiments, the researchers discovered that simply labeling those on the other side as feminists or environmentalists created a significant backlash against the opposition. When the descriptor “radical” was added (i.e., radical feminists and radical environmentalists”), the negative reaction was stronger. When information on immigration was presented with the opposition being labeled as “extremist immigration lawyers and pressure groups”, participants again rejected the extremist group and supported those saying immigrants cost cities too much money.

The researchers believe this ‘extremist effect’ (i.e., calling someone an extremist) results in negative associations for the listener, and is especially effective in our current political environment.

“The extremist tactic is attuned to a political environment that features conflicting values and an ambivalent public unsure about what its priorities should be.”

We would agree that the current political environment makes this tendency worse–but the tendency is always present. There is a tendency to assume the worst in general, but particularly in litigation situations. The strategy of turning a virtue into a vice in public opinion is a powerful one that has easily transferrable strategy for the courtroom.

For example:

You are a snowmobiling association being sued by environmental groups to block access to public lands. You diminish their position by saying, “Sporting enthusiasts may not get to enjoy our national parks this winter because [radical] environmentalists care more about rabbits than the local economy”.

In other words, you do not attack directly and seem uncaring about the environment. Instead, you tar their position as extremist and tie your position to something positive–in this case, the local economy.

Nelson, T., Gwiasda, G., & Lyons, J. (2011). Vilification and Values. Political Psychology, 32 (5), 813-835 DOI: 10.1111/j.1467-9221.2011.00844.x

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“I know that’s what he said, but this is what he really meant…!”

From early sibling conflicts and on into adulthood, we know the power of innuendo. Now we have academic research findings that corroborate that childhood experience (especially for women). Researchers were curious about how hearing only positive information might still be construed negatively by the listener. They looked at the effect of describing a person when you leave out one of two key qualities that people tune into when judging others– warmth and competence. For example:

“Ryan seems like a fun-loving guy”. If Ryan applied to work in your workplace, how would you expect him to perform?

Or “Molly is very gifted, hard-working and passionate about her job”. If Molly were seated next to you at a social event, how much do you think you would enjoy socializing with her?

The researchers point out that the descriptions in the study contain only positive characteristics. Yet, we tend to interpret deficiencies when what we have heard is only a facet of the person.  There is a tendency to assume that the omitted description is also absent from the person being described. For instance, when only warmth information is expected, giving information on competence will lead to negative inferences on warmth (see Molly, above). They call this “the innuendo effect”.

To study it, they offered vignettes in which peers described a person in one of two contexts: social (a travel group) or work (an academic group). In other words, the descriptions addressed warmth or competence, but not both. They asked participants to imagine being in a group (either social or work-related) for a month and that their task was to choose an additional person to add to the group based on the descriptive vignettes. Some participants were given straight-forward competence descriptions for the work context and straight-forward warmth descriptions for the social context. Others (those in the innuendo condition) had descriptions reversed so that warmth descriptions were given for the work context and competence descriptions were given for the social context.

In the initial study, the researchers found that the innuendo effect was stronger than anticipated. Not only did participants assume negatives when the description was contextually mismatched, (i.e., warmth/work and competence/social) they also assumed negatives when the descriptions matched the context! If someone was described as competent in a work situation, participants assumed they were not warm. A follow-up study showed the innuendo effect was even stronger with female targets than males. That is, we assume the negative more when assessing females.

The main lesson we take from this research relates to the need to be careful of what we don’t say, in addition to what we do.  Overlooking a balancing quality of a person will leave people thinking that they lack the quality that is omitted.  This is particularly true when jurors are looking for character in witnesses or parties.  An executive is expected to be smart and hard working, but if you forget to mention that s/he also volunteers at the community food pantry, the jurors will see the witness as another selfish, career-obsessed person.  Conversely, if someone is a manual laborer (including homemakers), emphasizing their thoughtfulness and dedication will make them more credible and respected.

 
Kervyn, N., Bergsieker, H., & Fiske, S. (2012). The innuendo effect: Hearing the positive but inferring the negative. Journal of Experimental Social Psychology, 48, 77-85

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