Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm:

Social scientists who study political orientation are realizing that it is something more than discrete attitudes about issues or candidates. Research shows that one’s identification as “liberal” or “conservative” also has to do with brain wiring. For example, some studies have found that conservatives tend to be more motivated by fear and are primed to respond to threats to established order, while liberals are more motivated by anger and want to right wrongs. New research extends our understanding of that orientation by tying it to different styles of information processing. Researchers from University of Texas at Austin and University at Buffalo, New York (Yang, Chu & Kahlor, 2018) looked at two national surveys conducted in the month leading up to the 2016 election in order to assess what motivated additional information processing on the issues of climate change and the election itself.  

The researchers found fear and anger on both topics, and the two emotions manifest in both liberals and conservatives. However, anger and fear induced different styles of processing information. Anger, it turns out, creates feelings of greater information sufficiency and certainty, and hence leads to less effortful information processing. Angry people know, and act. Fear, on the other hand, creates feelings of information insufficiency and doubt, and thus leads to a search for more information. This model is called the “Risk Information Seeking and Processing” model, or “RISP,” and builds on the idea popularized by Daniel Kahneman’s “Thinking, Fast and Slow,” that we selectively use two different tracks for deciding something, sometimes being willing to engage in tough thinking and an effortful process to reach a decision (slow), and sometimes defaulting to the quick or “heuristic “ route based on habits, prior views, and surface cues (fast). The researchers found that the choice of routes is complex, depending not just on political ideology but on the topic and on one’s emotional state. In general, however, fear motivated greater processing and anger motivated less processing. It is safe to say that, on a jury, you will have both liberals and conservatives, and within your case, there will be features that potentially evoke both anger and fear. It is useful to think about the interactions, so in this post, I will share a few thoughts.

Fear and Anger Are Different Tools

Savvy litigators know: When you’re persuading a jury, or even a judge or arbitrator, you don’t want to just argue and convince. Instead, to at least some extent, you want to motivate. Maybe you even want to rile up your audience and empower them toward a particular solution. Even the defense wants to access that motivation, because resisting a plaintiff’s verdict is still an action, and still potentially serves to uphold a principle.  In triggering these motivations, fear and anger are different tools. A case based on fear might focus on the risks of an accident, and the possibility that this kind of danger could apply to any of us. In contrast, a case based on anger might emphasize the flawed decision making and the perceived immunity of those who allowed this danger to persist. Of course, a well-rounded case should include both, but the question of where you want the primary emphasis is an important one. If, as the research suggests, fear tends to lower certainty while anger tends to raise it, that might inform the choice of where you want to put the greater emphasis.

A Different Way of Looking at How Fear-Based Litigation Strategies Work

I have frequently written on the Reptile strategy of trying plaintiff’s cases by appealing to fear. In particular, I’ve noted that the approach can be thought of as a way of appealing to conservatives. Why would plaintiffs need a way of appealing to conservatives in particular? Because they’re the ones most likely to distrust lawsuits as just so much crying over spilled hot coffee. An additional wrinkle on this point is added by the current research. If fear also ends up motivating higher levels of information processing, then depending on the case, that could be good or bad. If your case benefits more from a quick knee-jerk reaction, and if more thought tends to reveal more flaws in your case, then you might not want a highly-motivated audience. Lawyers tend to be biased in believing that the smarter the jury is and the more they study the case, the more they’ll come to believe your side, but logically, that can’t be true for both sides. It helps to ask honestly whether you want high information processing or not. And, if not, you may not want to base your ultimate strategy on fear.  

…Or Perhaps a New Way of Thinking About When to Use Fear and Anger

In contrast to fear, anger produces feelings of certainty and less of a need to engage in effortful thinking in order to find more information. When feeling anger, the perception is that one has enough information and is ready to act. These different motivations suggest that each might be useful, but at different times during the case. In opening statement, when you want to prepare jurors to actively receive your evidence, a framework based on fear might encourage that motivated style of information processing. In closing argument, however, when you want those same jurors to feel that they now have enough information and are now ready to act, then anger might be the more appropriate emotion. This notion could serve as a useful rule of thumb for some cases: Open with fear, close with anger.

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Other Posts on Emotional Appeals:

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Yang, J. Z., Chu, H., & Kahlor, L. (2018). Fearful Conservatives, Angry Liberals: Information Processing Related to the 2016 Presidential Election and Climate Change. Journalism & Mass Communication Quarterly, 1077699018811089.

Image credit: 123rf.com, used under license, edited by the author.