Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm: 

Favored facts picOn June 5th, three men used a van and knives to conduct an attack on pedestrians near the London Bridge and Borough Market. Just one week later, another man used a van in an attack on people leaving a mosque near Finsbury Park. Are we likely to frame both events evenly as “terrorism,” and to give them the same kind and degree of attention? According to some recent research, the answer is “probably not.” When terrorism is perpetrated by Muslims, as in the London Bridge attack, then we more easily define it as “terrorism,” and give it a greater focus. When terrorism is perpetrated by a member of the majority, as in the Finsbury Park attack, then we are less able to characterize it, and more likely to see it as the act of a psychologically-disturbed loner. That is the conclusion of a recent study (Kearns, Betus & Lemieux, 2017) by Georgia State University researchers, “Why Do Some Terrorist Attacks Receive More Media Attention Than Others?” 

Shankar Vedantam, NPR’s social science correspondent, discussed the study on a recent Morning Edition segment. Looking at American coverage in mainstream print sources and CNN.com, the study found that people are more likely to label it “terrorism,” and to give it four and a half times the amount of coverage, if the attacker is of the Muslim faith. A white person, they note, would have to kill an average of seven more people to receive the same coverage as the Muslim attacker. The researchers also conducted an experiment where they described an attack and held the details constant while varying only the identity of the attacker. “What we found,” according to Georgia State University criminologist Erin Kearns, “is that when the perpetrator was Muslim, people were much more likely to consider it to be terrorism than when the perpetrator was not Muslim. In those cases, people are more likely to say that perhaps it’s a hate crime or not be sure how to classify it.” That ambiguity and selectivity applies not just to terrorism and anti-muslim bias, it also reflects a more general tendency to amplify those facts that fit the frame and to minimize and discard the facts that don’t.  

What’s in a Frame? 

It was linguist George Lakoff who wrote that, “To be accepted, the truth must fit people’s frames. If the facts do not fit a frame, the frame stays and the facts bounce off.” Anyone who has been in a political argument immediately recognizes that. To someone who sees a world under threat from Islamic terrorists, every attack is a meaningful confirmation, while events that don’t fit that mold are relegated to the category of ‘something else.’ And it is not just hardened ideologies that are safely stored in frames: The same principle applies in varying degrees to all of the narratives that we use to construct our own sense of what is real. 

If you’ve spent time watching mock jurors deliberate on a case, then you’ve had a precious opportunity to see those frames in action. As they move through the evidence, it is clear that there is no blank slate. Instead, they each have a general sense of how the story, and evidence that confirms that story, is important, clear, and meaningful, while the evidence that would undermine that story is inconsistent, confusing, or weak. While you generally can’t convince someone to simply abandon their frame and pick up a new one, you can often convince them that a fact really does or really doesn’t belong in that frame. 

Playing the ‘Frame Game’

The legal setting trains attorneys to focus on the inputs to the process: the testimony and the law that you get to present to a jury. But it is also critical to think about the context, and where those inputs are likely to land. That means thinking about the frames that your jurors are likely to bring with them to the courtroom and apply to your case. 

I think there are three questions that all advocates should ask about their venue, case, and likely jury. 

One, What’s the Relevant Narrative?

Just as we impose organization in a Rorschach test — seeing an elephant or a flower and not, say, just a blot of ink — we also apply organization to a new story. Implicitly, we decide what kind of story this is, fitting it into the archetypes of the stories we think we know to be true. And chances are good that in any given scenario, there are a number of possible stories that could apply. For example, in a commercial case involving a breach of contract, it might be: 

A story of greed and betrayal — one party taking advantage of the other. 

A ‘deal’s a deal’ story of one side simply having buyer’s remorse over the agreement they made. 

A ‘perfect storm’ story of factors outside of the parties, like the market itself, causing the problems. 

The choice of which one of these stories comes to the fore is likely to be driven by the particular venue, the time period, and the response to the case itself. But the first question focuses on what the salient background story is likely to be. A focus group conducted early on is an excellent way of scoping out the story or stories that jurors are likely to bring with them. 

Two, Which Facts Are Going to Feed that Narrative? 

Jurors will be told to, and will genuinely try to, pay attention to everything they hear. But it is inevitable that those facts which reinforce the narrative they hold will have greater prominence. It will be as if a giant highlighter has been applied to all the facts that fit the frame they want to apply. 

Assume that, from the choices of stories above, we think the salient one for our breach of contract case is likely to be the first: A story of greed and betrayal. Depending on the case, that might help or hurt you. If it helps, then you’ll want to emphasize it, repeat it, and apply all the tools we have to make it sticky, including demonstrative exhibits and metaphors. If it hurts you, on the other hand, then you will want a strategy. In this case, embracing the weakness or ‘steering into the skid‘ might mean accepting at least part of that narrative, and acknowledging that profit is indeed what is motiving your client, and that is a good thing because, in this case, it encourages the right behavior. 

Three, Which Facts Are Going to Fight that Narrative?  

Facts that fall outside your juror’s preferred frame are going to have trouble getting traction in that juror’s mind. If they’re inconsistent with the story the juror already implicitly takes to be true, then these facts will be not understood, not trusted, or not remembered. Or maybe, they’ll just be ignored. 

Still focusing on the contract breach story of greed and betrayal, the facts that fight that story might center on the breaching party’s legitimate motives, the ultimate good done by the action, or the other party’s own greed. One side, of course, will want those facts to be noticed, accepted, and remembered. But a strategy based on simple emphasis can backfire, with the advocate insisting “This is relevant!” and an audience implicitly responding, “No, it isn’t.” In all likelihood, you won’t be able to overturn a frame that your audience has already applied, there is a chance, however, that you could amend or broaden it. 

Sure, to my client, this is about turning a profit. Some might call that ‘greed,’ but focusing on profits is what a business is supposed to do, because that is what brings the jobs and the benefits to consumers. But it isn’t just about my clients productive ‘greed,’ it is also about the other side’s greed in trying to get something for nothing by agreeing to terms and then crying ‘foul’ when the situation changes. 

The particular frames and responses will be specific to your case, and will be ideally discovered by road testing your trial story with a mock trial or a focus group well in advance. Seeing the mock jurors make sense of your case will go a long way toward helping you see your case, not as a one-way presentation of evidence and law, but as a two-way interaction between what your targets already think and where you want them to go. 

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Other Posts on Cognitive Frames: 

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Kearns, E. M., Betus, A., & Lemieux, A. (2017). Why Do Some Terrorist Attacks Receive More Media Attention Than Others?.

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