Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm: 


The news cycle these days seems to be dedicated to keeping the question front and center: “Are we as a society losing our grip on facts?” And if we are, I’d add a complementary question, “What does this say to legal persuaders?” An article at the end of last year appeared in Law 36o written by trial consultant, Ross Laguzza, citing data from his own company to support the view that jurors may be on their way to becoming more fact-resistant. For example, 54 percent say “Beliefs guide my life,” as opposed to 46 percent who say “Facts guide my life,” and fully 58 percent agree with the statement, “If you feel really strongly about something you don’t need facts to prove you are right,” with two-thirds of those agreeing say they “strongly” agree. This creates the possibility of a declining reliance on external sources for validity. In deciding whether a drug is safe or unsafe, for instance, 60 percent would go with the opinions of patients rather than the opinions of doctors and scientists. 

We may be reaching the point where a surprising number of people seem to be not as concerned with whether their facts are accurate as long as the story they’re promoting fits in with their system of belief. “The concern,” Laguzza writes, “is that maybe the new normal will be for strong jurors to continue to hold onto their positions because they feel they are morally justified to maintain their opinions even when the evidence and the law are incongruent with their ideas.” In Persuasive Litigator, I have addressed similar questions in a variety of ways over the years: 

  • How do people create and maintain strong beliefs? 
  • What factors cause jurors to be resistant to facts that conflict with those beliefs? 
  • What issues are uniquely resistant? 
  • How do you encourage a resistant audience to be open to changing their mind? 
  • What are the best means of legal persuasion in this fact-resistant age? 

I brought together ten posts that tackle these question of “post-fact” jurors from a few different angles. 

Fight the “Flight from Facts”

Flight from factsWhen the facts supporting one’s beliefs are challenged, one common recourse is to reframe those beliefs in a way that is more resistant to factual refutation. Calling this the “flight from facts,” a new article in Scientific American shares an example: An anti-vaccine believer first notes the purported connection between vaccines and autism, then after those facts are thoroughly trounced, simply shifts their advocacy to something like, “Well, regardless, it’s still my personal right as a parent to make decisions for my child.” In a litigation scenario, we can imagine a similar reframing: 

Juror A: Corporations lie. 

Juror B: Well, in this case, what they said turns out to be accurate. 

Juror A: Yeah, I guess. But I just don’t trust their motives. 

It is called “cognitive consistency.” In the face of factual refutation, you could change your mind. But it is often easier to simply change your rationale. The article entitled, “Why People ‘Fly from Facts‘” reports on research demonstrating that tendency. (Read More). 

Cut Through the “Stickiness” of Prior Beliefs

StickinessHere is one belief I’m pretty sure about: Most of us tend to be pretty sure about our beliefs. As the waning campaign season has continued to demonstrate, we tend to select a chosen belief and stick to it rigorously, even in the face of contrary information. In our personal campaign to understand the world, we are not dictated by the fact checkers. Substantial portions of the American public believe that Barack Obama was not born in the United States and is a Muslim, that childhood vaccines cause autism, that there is no consensus on human-caused global warming, or that the Bush tax cuts increased revenue for the government. All of those beliefs can be refuted with hard evidence, but they’re sticky. For many, the refutation just hardens the resolve to stay with current beliefs. In litigation, jurors may find many forms of misinformation sticky as well. They may believe that if a lawsuit makes it to trial, or even if it is simply filed, then there must be something to it. They may believe that a corporation will always lie, or always put profits ahead of people. They may feel that juries are cash machines motivated primarily by sympathy. They may believe that most or all lawsuits are frivolous, buttressed by misinformation on the McDonald’s Hot Coffee case. (Read More). 

Convert Your Conspiracy Theorists: Research Shows it Can Be Done

  Conspiracy TheoristsThose who count on the human ability to prioritize reason and evidence over unshakable conviction — and all participants in the litigation process ought to count themselves in that group — should take note of the persistence of questions over the President’s place of birth, and the sad take-away that proof can be no match for a committed theory.  After more than two years of persistent and increasingly mainstream innuendo suggesting he was born abroad, President Obama last week retrieved and released an official copy of a long-form birth certificate, which just confirmed what the short-form version — the one used for all official purposes according to the state’s policies — had indicated all along:  Barack Obama was born in Hawaii.  That is a simple, documented fact, that has been sufficient for and all but the wildest fringes of the national media.  But to a cadre of dedicated doubters, that has disturbingly included nearly a quarter of the U.S. population, the proof wasn’t enough, and we are already seeing fresh attempts to call the legitimacy of the newly released certificate into question. (Read More). 

Treat Fact Finders as Information Wolves, Not Information Sheep

Wolves sheepSheep tend to placidly eat what’s in front of them. Wolves, on the other hand, hunt. Now, with that distinction in mind, think about how we now typically gather information. There may have once been a time when the average American came home from work, turned on the television, and just soaked in the news as placidly as a sheep. Now, on the other hand, we hunt our information like a wolf. In addition to being able to target our news from a dizzying array of television channels, including some that are tailored to our ideological preferences, we also rely on the internet to Google-up news stories that precisely fit the focus and the facts that we’re looking for. And when we find it, we don’t simply read it. Instead, we comment on it, we tweet about it, and we argue on Facebook. Even those of us who are old enough probably have difficulty remembering a time when we just received our news instead of engaging with it. Yet despite being information wolves in our daily lives, we expect jurors to be information sheep during trial and simply process what they’re given. We see the resulting strain in the frequent stories of jurors doing their own electronic research. Often, commentators attribute that to the prevalence and availability of technology, but there is something broader at work: Jurors want to hunt.  (Read More). 

Persuade Using Both Alpha and Omega Strategies

Alpha omegaNever heard of “Alpha” and “Omega” strategies for persuasion?  Until recently, neither had I.  But after reading the research, it has changed my way of looking at persuasion.  The terms are based on something called the “approach-avoidance” model (Knowles & Linn, 2004), suggesting that to an audience, every position you might advocate has attributes that attract (“approach”), and attributes that repel (“avoidance”).  Persuasion is accomplished, naturally enough, by making the approach stronger than the avoidance.  Now, you might think, “that is obvious — of course audiences see a pro and a con,” but the real takeaway for advocates is the reminder that you need to speak to both sides of the equation.  Intuitively, we might expect that we make a persuasive case in court by assembling all of the evidence, arguments, and other appeals that show why we are right and they are wrong.  But that all speaks to the benefits of our position — the approach forces.  Those are the “Alpha” strategies that give a judge or jury an incentive (greater credibility or merit) for siding with us. But what about the avoidance forces, the forces that cause an audience to resist our message? If we aren’t also using the “Omega” strategies to decrease that resistance, then we may just be building a convincing case that our audience rejects nonetheless for their own reasons.   (Read More). 

Consider What Drives Resistance to Your Message

ResistanceHaving 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.(Read More). 

Expect Confidence at the Extremes

Extremes“The whole problem with the world,” according to an adage attributed to Bertrand Russell, “is that fools and fanatics are always so certain of themselves and wiser people so full of doubts.” Reading the comments sections in just about any online magazine, it is easy to see those confident extremists. There is something about positioning yourself to the outside of public opinion, either left or right, that conveys a certainty: a belief that you’ve seen a truth that’s eluded the majority. That certainty can be a strength, and it may be an explanation for why, in the political arena, those who get the most buzz are often at the edges, and there may never be a galvanizing and charismatic centrist.

When watching mock jury deliberations, that connection between extreme views and confident advocacy is often on full display. Those with leanings at the poles (the “one’s” or the “seven’s” as we measure their leanings on a Likert scale), are often brimming with confidence, ending up as the most vocal and influential jurors. And research confirms this link between extremism and confidence. (Read More). 

Look Out for the Authoritarian Personality

Authoritarian personalityThe current political campaign season is not just a source of entertainment or concern (depending on your level of seriousness about it); it is also a source of education on persuasion. One important new lesson comes from political consultant and public opinion researcher Mathew MacWilliams in a current essay in Politico. I will usually avoid articles with a title beginning with “One Weird Trick” or “Trait…”, but this one, “One Weird Trait That Predicts Whether You’re a Trump Supporter,” piqued my interest. While many Americans might dismiss the charismatic billionaire’s support as coming from an unsophisticated and possibly racist rabble, it turns out that statistically, it isn’t education, race, ideology, religiosity, or income-level that predicts support for Republican candidate Donald Trump. Instead, based on MacWilliams’ national poll of 1,800 registered voters this past December, there were only two statistically significant predictors of Trump support. One was a fear of terrorism, and the other — by far the more significant contributor — is authoritarianism. (Read More). 

Know the Limits of Political Empathy

EmpathyThe presidential contest is too close to call, but assuming we have a result by the end of the election day tomorrow, one thing is all but certain: Roughly half of the population will be shocked and appalled by the decision made by the only slightly larger other half of the population. Whether Mitt Romney becomes the incumbent president or Barack Obama gains a second term, the nearly half that is on the losing end will see the result as misguided, incomprehensible and dangerous. They will not see it simply as an understandable or rational decision made by those with different information, beliefs or priorities. Instead, the defeated side will see it as a grievous mistake and a ridiculous choice that threatens the country’s future. You’ll be able to feel the breeze from close to one half of the American public shaking their heads in bewilderment.  I might be exaggerating a little, but not much. America’s political attitudes, as many commentators have noted and polling confirms, are more polarized than ever before in modern times. That polarization that some call a new “tribalism” in our political world, is not just a result of a defined set of policy preferences. Instead, it is a clash of increasingly incompatible worldviews, with each side literally not able to understand the other. (Read More). 

Don’t Persuade

Don't PersuadeOf course I don’t mean that literally. Given the title and the content of this blog, it would be pretty ironic if I took a dim view of persuasion. But others — consumers, jurors, and persuasive targets of all kinds —  do take a dim view of persuasion. They want to feel like they’re reaching their own conclusions without the influence or the manipulations of a motivated persuader. So what I mean by “Don’t persuade” is don’t frame your communication first and foremost as an attempt to influence, and don’t make your motives too obvious. The bottom line is that persuasion is best when it minimizes the awareness of “persuasion.” That principle has been demonstrated again in a recent study coming out of the University of Amsterdam. The piece entitled “The More You Say, the Less They Hear” (Asbeek Brusse, Fransen & Smit, 2015) focuses on an “entertainment-education” context (think embedded pro-social messages in a television show, like characters using their seatbelts), and examines how disclosure of the persuasive intent of the message influences its effectiveness. The authors found that when the persuasive intent was highlighted to study participants viewing the message, it resulted in more counterargument by listeners and less overall persuasion.  (Read More). 


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Image credit:  Boing Boing via Tim O’Brian (shared via social media) — @obrienillustration #alternatefacts