Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm:

When you stand in front of a jury, laying out your opening story or closing your arguments, who are you talking to? “To the jury, of course.” Yes, but which jurors in particular?  The conventional wisdom is that you should be talking to your tougher audience. In other words, in thinking up and framing your persuasive appeals, you should be doing so in a way that is focused on those who are likely to be most strongly leaning the other way, on the theory that if you can persuade them, then you’ll persuade everyone else. This worst-case focus is important in order to avoid the habit of “preaching to the choir,” in the sense of talking mostly to your natural supporters. For example, a plaintiff focused on sympathy or a defendant focused on personal responsibility will get head nods, but those will come from the jurors who would support you anyway. The better practice is to focus on those you want to convert.

But “convert” can mean several different things. If a juror switches from “weakly pro-plaintiff” to “weakly pro-defense,” that might be the same degree of shift as another juror switching from “weakly pro-defense” to “strongly pro-defense.” Our natural focus is on the first juror, who switched sides after all. However, both shifts are important, and in the unique setting of deliberations where jurors don’t just vote, they argue and compromise, the juror who converted to a strong supporter might be the more important shift. So, for advocates, it is not just important to think about who they’re talking to, addressing both their natural supporters and natural opponents, but it is also important to think beyond just “support” and “oppose,” and to focus on strength and commitment to opinion.  Because in deliberations, you won’t need passive supporters as much as you’ll need advocates. In this post, I will share some research and practical advice on this mindset.

Broaden Your Focus Beyond Valence 

A recent study (Bechler, Tormala & Rucker, 2019) focuses on perceptions of attitude change, and the difference between “Qualitative Change” or valence, for example changing from pro-plaintiff to pro-defense, versus “Quantitative Change” or change by degree, meaning changing from weak pro-defense to strong pro-defense. In the study, they find that people tend to see qualitative changes as greater and more important, even when compared to quantitative changes of the same degree. The reason is simple, they note, “qualitative change is easier for people to detect and understand.”

In other words, even when attitude changes are by the same amount, we perceive a change in valence (from positive to negative, for example) to be a greater change than a change in degree. That may be understandable both inside and outside of the courtroom. After all, it is easy to think in the binary terms of those who are for us and those who are against us. All shifts of opinion are worth thinking about, however, and a jurors strength of opinion may actually be the most important factor.

Look at Strength of Opinion in Mock Trial Research

An ideal time to look at the key role played by strength of opinion is in your pretrial jury research: a focus group or mock trial. As you watch deliberations, you will get a tangible sense of how large a role strength of opinion plays as you watch your passive supporters just sit there, while the more committed advocates address the other side’s arguments and try to persuade. Deliberations are a unique persuasive setting where simple agreement is not enough, and the gold standard is to work toward having jurors who are both motivated to argue for you and armed with enough arguments and evidence to be successful at it.

In the mock trial setting, you should always measure not just the jurors’ leaning, but also the strength of that leaning. While we will often pay particular attention to those who switch from supporting one side to supporting the other side, the comparable shifts in certainty for one side or the other can be just as important to consider. By observing what motivates and strengthens the jurors, you are studying the key levers of persuasion in your case.

Think About Strength of Opinion in Arguing Your Case 

When dealing with a real jury, you naturally won’t have that measurement of opinion. You will still have your own sense of where jurors are at. On that score, it helps to not just ask yourself, “Do I have that juror, or is she on the other side?” but to also think about how convinced, how strong your jurors are, and how prepared they are to advocate on your behalf. You won’t always know the answer, of course, but keeping the question in mind will help you to sharpen your points.

For example, I have always thought that opening statement is the time to frame the story, presentation of evidence is the time to convince them that you’re right, and then closing argument is the time to arm your supporters to argue, using evidence and reasons against your those jurors who might oppose you. So, for your final turn at the lectern, you want to not just point them to the evidence, you want to tell them where to find it and use exhibit numbers so they will make notes or remember. You also want to engage in some predictive argument:

When this point comes up during deliberations, someone might respond with

[the other side’s argument]. When that happens, you will want to point that individual to several things… 

So, I think the mindset is that you aren’t just persuading, you are thinking about your strongest supporters and equipping them for battle.

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Thanks for reading. I am a litigation consultant (bio here) specializing in mock trial research, witness preparation, jury selection, and case strategy, generally (but not always) in high-value civil cases. If you have a comment, a request for a future topic, or a concern about a current case, contact me now


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Other Posts on Attitude Change: 

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Bechler, C. J., Tormala, Z. L., & Rucker, D. D. (2019). Perceiving attitude change: How qualitative shifts augment change perception. Journal of Experimental Social Psychology, 82, 160-175.