Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm:

Inoculation is a well known, persuasive technique. The idea is that, instead of waiting for your opponent to share a piece of information or lay out an argument, and then responding by showing that the information or argument is wrong, the advocate should anticipate that move and make sure your audience knows in advance how to react to it once they hear it. This approach of preemptively addressing bad arguments or misinformation, colloquially called “prebunking,” means more than just getting there first and answering the claim. The research indicates that you should focus not just on what the other side is saying, but also on why that may seem like a good argument but isn’t.

A recent study (Cook, Lewandowsky & Ecker, 2017) looked at arguments regarding consensus on human-created climate change, and specifically two techniques used by those wanting to play down that consensus: The “false balance” fostered by the media in typically inviting one expert on each side of the question, and the “fake expert’s” approach of creating lists of climate doubters consisting of commentators or academics who generally don’t have a background in climate science. The study found that explaining in advance what these techniques involve and why they might be misleading helped to neutralize the influence of misinformation. Researchers even addressed the boomerang tendency of climate skeptics to become more committed to that skepticism after hearing information supporting human-created climate change. Learning the why behind the techniques helped to neutralize that effect as well.

The take-away for litigators: Don’t just present your arguments as though you’re painting on a blank canvas. Instead, anticipate and react to what an intelligent and prepared adversary is doing as well. And inoculating against that adversary means not just saying, “You’re going to hear this…and here is why it is wrong…” It means saying, “You’re going to hear this…and here is why it might sound right…but here is why it’s wrong…”

Here are three things to appreciate about this focus:

It’s About Technique

The factor that led to the results in the study is an explanation of what it is about the technique that makes it misleading. “It is possible,” the authors write, “that inoculation shifted attention from a heuristic surface level to a deeper level of analysis, allowing people to detect patterns of deception.” Simply showing your targets that you have an argument and that it is, in your view, a better argument is not enough. When you are able to explain why your adversary’s argument might appear to be legitimate while still being flawed, you are giving them the tools they need to understand and to resist that argument.

It’s About Freedom

What your persuasive targets also need is a motivation. In this case, the motivation to not be misled is driven by a preference for freedom. I have written previously that one of the most reliable persuasive techniques is to emphasize your audience’s ultimate freedom to decide as they wish — the “but you are free” appeal. The researchers noted in this case that presenting information supporting climate change tends to backfire with one group: free-market supporters who distrust the regulations that are expected to accompany recognition of climate change. However, inoculation on the ways a technique might mislead worked with that audience. “When informed of misleading techniques,” they write, “free-market supporters resist being misled as they see this as a violation of their right to be well informed.”

And It Doesn’t Have to be Specific

One question on inoculation can give advocates pause: “How much of their argument am I supposed to give?” You want to give enough so that you’re being clear and fair, but not so much that you’re doing their work for them. In the study, the authors obtained the best results by keeping it somewhat general. “It is also noteworthy that the inoculations in this study did not mention the specific misinformation that was presented after the inoculation, but rather warned about misinformation in a broader sense by explaining the general technique being used to create doubt about an issue in the public’s mind.”

So, applying these ideas, a technique-focused inoculation in a trial context might sound something like this:

One part of the process leading up to trial is called discovery. Essentially, it means that each side shares what it has with the other side. And we’re a big company, so what we have and what we shared is a lot. So that means the plaintiff has a golden opportunity to cherry-pick the notes, the memos, the emails that show us in the worst possible light. So that’s what we expect them to do: They will find and show you communication that looks bad. Even if it is not typical, even if it is not relevant, even if it doesn’t even come from the decision-makers in this case, if it looks bad, they’ll use it. Why? Because it might raise a cloud of doubt in your minds, and make you question us. And by all means, we want you be skeptical, we want you to hold our feet to the fire when it comes to the specific contract at issue in this case, and when it comes to the specific evidence. But base that evaluation on the right information, not on any cloud of doubt that plaintiff tries to create with cherry-picked atypical and irrelevant documents. 

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Other Posts on Inoculation: 

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Cook J, Lewandowsky S, Ecker UKH (2017) Neutralizing misinformation through inoculation: Exposing misleading argumentation techniques reduces their influence. PLoS ONE 12(5): e0175799. https://doi.org/10.1371/journal.pone.0175799

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