Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm: 


In the early Sixties as Adolf Eichmann’s Nazi war crimes trial was taking place in Jerusalem, the world was asking, was there something different about those who committed crimes on that scale, or were they just obeying orders? Just a few months later, a social scientist began a series of experiments in a small basement at Yale University to arrive at what’s become probably the most famous finding in social science. Stanley Milgram’s research, first published in 1963, involved a setting where one research participant is a “teacher,” and another (actually a confederate working for the experimenter) is a “learner,” and the teacher is required by the conditions of the study to deliver electric shocks in response to wrong answers from the learner. The shocks start out mild, then gradually escalate. When the shocks seem to be causing severe pain and potentially even injury, and most teachers express a reluctance to keep delivering electric shocks, the authority figure running the study simply repeats, “The experiment requires that you continue.” And they obeyed. 

In the original experiment, fully 65 percent of the teachers continued without refusing all the way to the most severe shocks. And, unfortunately, the finding does not seem to be just an artifact of the era. A recent replication by Polish researchers (Doliński et al, 2017) carries the title, “Would You Deliver an Electric Shock in 2015?” The answer? Probably “Yes.” Fully 90 percent of participants were willing to go to the highest shock level. Dr. Tomasz Grzyb, a study author, said, Our study has, yet again, illustrated the tremendous power of the situation the subjects are confronted with and how easily they can agree to things which they find unpleasant.” The original results and their replication raise the uncomfortable question of just how much of persuasion comes down to the influence of authority. In Milgram’s view, the study illustrates that when our individual moral views are pitted against the pull toward obedience, then in most cases, that pull toward obedience is going to win out. There are a few ways this matters to legal persuasion.  

Obedience to the Law

The legal process, of course, is an exercise in formal obedience. Judges follow precedent, attorneys follow rules of evidence, and jurors follow the instructions, usually at least. Jury nullification exists and jurors are often aware of the possibility, in fact, that they could set aside the law and reach a decision based on their own conscience. But the conscious and intentional version of nullification, at least, seems to be relatively rare. As I wrote in a recent post, jurors want to know why they’re being asked to follow an instruction, but when push comes to shove, they will typically try to follow the law as they understand it.  

Obedience to Experts 

Experts should do their best to actually teach their fact finders, so they’re able to arrive at their own conclusions instead of just trusting the expert. At the same time, part of what the expert conveys is their authority as a qualified, experienced, and capable teacher on the subject. So, while credentials aren’t the main focus, and aren’t necessarily the best place to start, they are important to the overall performance of the expert. That initial credibility granted by the jury is what helps them to become receptive students. 

Obedience to the Standard Practice

One of the more subtle forms of obedience you might see in a courtroom is probably one of the more ubiquitous forms: People defer to what is normal or to what seems to be normal. In the Milgram studies, for example, the implicit message that, “This is how the experiment works, and other people before you followed these instructions,” was probably one of the strongest inducements to keep participants from opting out. Similarly, jurors in a trial will base their reactions on whether an action seems normal or abnormal. If the company is following the industry standard, or if the doctor is doing what most other doctors do, then they’re much harder to blame. 

Some More Than Others

Perhaps the most important fact about the role of authority in persuasion, however, is that it is a trait that varies. At around the same time as Milgram’s study, social psychologists were becoming increasingly fixated on the individual traits that mediate obedience. The “authoritarian personality” is a measurable tendency to follow rules, support strong leaders, and to react negatively to outsiders and nonconformity. In some cases, such as those where you would be asking your fact finders to buck the rules or set aside the expected result, then it is a trait you may want to look for when targeting your strikes during jury selection. 

While we, particularly in individualistic societies, like to believe in the sovereign individual making their own moral choices, the reality seems to be often in line with Milgram’s somewhat depressing finding. 


Other Posts on Authority: 


Dariusz Doliński, Tomasz Grzyb, Michał Folwarczny, Patrycja Grzybała, Karolina Krzyszycha, Karolina Martynowska, Jakub Trojanowski. Would You Deliver an Electric Shock in 2015? Obedience in the Experimental Paradigm Developed by Stanley Milgram in the 50 Years Following the Original Studies. Social Psychological and Personality Science, 2017; 194855061769306 DOI: 10.1177/1948550617693060

Milgram, S. (1963). Behavioral Study of obedience. The Journal of abnormal and social psychology, 67(4), 371.

Image Credit: Eva Rinaldi, Flickr Creative Commons (edited). 

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