Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm: 

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On October 1st, a gunman opened fire on a crowd of concert attendees, injuring nearly 500 and killing 58. In response, the President offered condemnation and condolences, but said the event should not be politicized and offered no policy changes. Thirty days later, a man drove a rented truck through a crowded bike and pedestrian area, injuring a dozen and killing eight. In response, the President used executive power to further increase vetting of foreign immigrants, called for an end to diversity-based immigration, and intensified his emphasis on a Southern border wall. Then yesterday, a gunman killed at least 26 in a Texas church, and the President was back to the more general message: Americans should “stand strong,” but no policy changes are needed. Why the difference? One explanation is that, in the first and third instances, the perpetrator was native-born and white, but in the second instance, the perpetrator was an immigrant from Uzbekistan. 

No one, including the President, is going to consciously decide, “Well, the white shooters are more similar to me than the New York driver, therefore, despite the greater carnage, I will have a less-intense reaction to those cases.” However, there is good social science to support the idea that this is exactly what is going on, at least in part. When it comes to evaluating both those who have done wrong and those who are the victims of that wrongdoing, our reactions will be strongly influenced by our empathy, which is in turn strongly determined by similarity. In other words, we are less punitive when the perpetrator is like us, and we are more punitive when the victim is unlike us. In this post, I’ll share some recent research on this tendency and discuss the implications for legal persuasion. 

The Research: Empathy Comes from Similarity

In one recent study, a Romanian researcher (Pascal, 2017) tested out brief stories in which the similarity of either the transgressor or the victim was varied. Using two examples (one involving cheating in a romantic relationship while the other involving abuse by a police officer), the researcher looked at both personal similarity (common demographic traits) and situational similarity (common past experiences). The study’s results show “both personal and past situational similarity to the transgressor determine less severe moral judgments, while personal and past situational similarity with the victim have the opposite effect.” In general, empathy mediates that effect. “By assigning less blame to the actor,” for example, “individuals symbolically excuse themselves should a similar situation happen to them” 

This preference for the similar is demonstrated not just behaviorally, but within the brain as well. Another study released this year, explained in a ScienceDaily release, involved researchers from Finland hooking participants up to functional magnetic resonance imaging (fMRI). While looking at blood flow to various parts of the brain, the researchers showed participants a truncated version of the movie My Sister’s Keeper. In the movie, a woman is refusing to donate an organ to another woman, her sister. The researchers, however, varied whether the potential organ recipient was  her biological sister or a sister adopted by her family as a baby. Even with that small distinction, a distinction that 90 percent of participants said would not matter, the researchers still saw major differences in the fMRI. When participants believed they were genetic sisters, researchers saw more activity in regions of the brain associated with feelings and moral choices, with the biological sister’s plight seeming to be significantly more tragic.  

The Implication: Similarity isn’t Set

If the conclusion, per Professor Pascal, is that “individuals prefer and evaluate more positively other individuals that resemble them,” then litigators might just think it is good luck to have a client who is similar to the jurors, and bad luck to have one who isn’t. However, it isn’t as simple and fixed as that. Similarity varies depending on what factors are salient and emphasized in a given case. 

Fact finders can also be primed to consider similarity. If you emphasize and play up the factors that build a bridge of some kind between your fact finders and your client, you are increasing the chances of greater empathy. On the other hand, if you ignore or play down those factors, you are reducing that effect.    

The Recommendation: Develop Similarity

When your case would benefit from greater empathy, the challenge is to leverage the similarities and to find some basis for a connection. 

The research suggests that there are two bases: personal and situational similarity.   

Develop Personal Similarity

In the Romanian study, the factors of personal similarity that were varied were simply gender age and profession. That is probably a good foundation, but there are other personal characteristics that matter as well, including race, religion, residence, and political leaning, to name a few. 

Develop Situational Similarity

Also in that study, participants’ situational similarity was operationalized as personal experience of having been in a similar role in the past. That is more abstract and potentially more flexible than personal similarity. It suggests that you can build a connection by invoking a wide range of personal experiences. At one time or another, it is likely that we’ve all been the new person in an unfamiliar situation, we’ve all trusted someone who let us down, we’ve all experienced treatment that we considered unfair, and we’ve all been accused of something we didn’t do. 

With some analysis of your case, and a little introspection and creativity, you can likely find that line of similarity that connects your client or witness to their fact finders. 

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Other Posts on Empathy: 

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Bacha-Trams, M.; Glerean, E. Dunbar, R.; Lahnakoski, J.M.; Ryyppö, E.; Sams, M.; Jääskeläinen, I.P. (2017) Differential inter-subject correlation of brain activity when kinship is a variable in moral dilemma. Scientific Reports, 2017; 7 (1) DOI: 10.1038/s41598-017-14323-x

Pascal, E. (2017). Being similar while judging right and wrong: The effects of personal and situational similarity on moral judgements. International journal of psychology. July. URL: http://onlinelibrary.wiley.com/doi/10.1002/ijop.12448/full

Image credit: 123rf.com, used under license