Source of the following article Persuasive Litigator.

by Dr. Ken Broda-Bahm: 


Having assisted on a large number of jury selections, I know there are a few attorneys who will say, “Give me the dumb ones — I’ll tell them what to think.” But by and large, the attorneys have what I call an “intelligence bias.” That is, they think that their side of the case is essentially correct (because that is what advocates do), so they think the smarter jurors will understand that. But that can’t always be right — especially when that bias exists for both sides. Based on a research article in Political Psychology, there seems to be a lot more complexity to the question of whether the intelligent are going to be good or bad in any given case. Looking at a close cousin and companion of intelligence, sophistication, the study (Nai, Schemeil & Marie, 2016) looks at how that plays off against resistance to persuasion.

The researchers measured the political sophistication of 604 research participants, then asked their views on climate change. Specifically, they asked whether they supported a reduction in economic activity in order to reduce global warming. After they answered, they were exposed to arguments designed to refute whatever position they had just taken to see how much they could be persuaded. They also tested the role of induced anxiety (a fear appeal) as part of this process. The result? Sophistication has an effect, with higher sophistication translating into greater resistance to persuasion. Anxiety also had an effect, with higher anxiety meaning less resistance to persuasion. But the most interesting finding was an interaction between sophistication and anxiety. For those higher in sophistication, those who would otherwise be more resistant to persuasion, anxiety decreased resistance. In other words, expect the sophisticates on your jury to resist changing their minds, unless they’re scared. That adds some nuance to the basic question of liking or hating intelligent people, and suggests a more careful look at what drives resistance. 

Think About Resistance

Persuaders like to think about what will convince the audience to accept their views. But they should also think about what will cause that audience to resist that message. I’ve previously written about this distinction between the attraction and avoidance factors in persuasion, also called alpha and omega strategies, with the attraction or alpha factors being those that address why we would want that outcome, and the avoidance or omega factors being those that address the reasons why we would not want that outcome. For instance, thinking about two kids thinking about sneaking out or some other forbidden activity: “It’ll be fun” is the alpha appeal, while “and there’s no way we’ll get caught” is the omega appeal. Advocates often give disproportionate attention to the alpha side of that equation, but what is going to shut down your message is the omega side. So think about what that resistance might be in your case and for your jurors. 

Think About Sophistication

And think about where that resistance might come from. According to the research, the more sophisticated your audience is, the more likely they are to be dug in on that omega side. In other words, if they have an attitude that runs counter to your case, they’re less likely to be talked out of that position. That might run counter to attorneys’ common sense expectations, tending to equate sophistication with open-mindedness. You might listen to a smart and sophisticated person expressing an attitude adverse to your side of the case and think, “Sure they might feel that way…but they haven’t heard any evidence yet. They’re smart, so once they hear the whole story, I think they will see past that bias.” Don’t be so sure. The more sophisticated juror has access to more angles on the issue: The more you’re able to argue, the more they’re able to counterargue. 

Think About Anxiety

Apparently, that’s true unless they’re induced to feel greater anxiety about the issue. Among the nonanxious, high sophistication leads to greater resistance. But among the anxious, the opposite occurs: High sophistication leads to less resistance. This is potentially a new way of explaining why the Reptile perspective on plaintiffs’ persuasion works. Beyond the theory that there is a ‘reptile brain’ controlling our decisions, a theory that there’s good reasons to doubt, the Reptile approach can be seen as a way of reducing persuasive resistance. If you take those jurors least likely to be moved by sympathy, they are likely to be higher sophistication defense-oriented jurors. They are more likely to resist the idea that there are valid plaintiffs’ cases. But anxiety reduces that resistance, so framing the case as a personal threat to the juror and her community is one way of dampening the resistance that she otherwise might have. 


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