Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm:

In all facets of persuasion, and human communication for that matter, we are now used to dealing with a pretty polarized world. Addressing or responding to anything having to do with current events always involves a quick mental check on your audience and what their latitude of acceptance is likely to be. We’re accommodating ourselves to living in a politically-divided world, but are those divisions driven by more than opinion and ideology? Probably. One interesting line of research has been looking into the extent to which the stark differences in political attitudes that we see might be just the surface manifestations of deeper differences in cognition. In other words, we don’t just hold different views, and we don’t just see the world differently, we literally think differently.

One example pointing in this direction is a recent study (Zmigrod, Rentfrow, & Robbins, 2018) looking at nationalism, and specially the tendency to make rigid distinctions between in-group and out-group. Three researchers from Cambridge University’s psychology department, assessed the attitudes of UK citizens on Britain’s exit from the European Union, or “Brexit,” a movement driven by anti-immigrant sentiment comparable to the wave in the United States that, in part, propelled Donald Trump into office. As discussed in a release in ScienceDailythe researchers found that flexible thoughts about national identity also correlated with general flexibility on other cognitive tasks, and that rigid thinking on nationality predicted rigid approaches to other cognitive tasks. Using politically neutral card-sorting tasks that contrast a participant’s flexibility (adapting different approaches) versus persistence (doggedly sticking with the same approach), the researchers found that mental flexibility meant less nationalism, less authoritarianism, and specifically less anti-immigrant attitudes. This suggests that those of us wanting to understand and adapt to audiences should account for the cognitive differences and not just the views that result from those differences. As lead author Leor Zmigrod notes, “In today’s politically-polarised climate, it is important to understand more about the psychological processes behind nationalistic and social attitudes if we are to build bridges between communities.”

It’s About Attitudinal Structure

Litigators, of course, aren’t in the business of pushing politics, but sometimes the cases themselves require some kind of bridges. For example, you might need to convince a conservative panel that workplace harassment is real and not overblown, or that an immigrant deserves the same rights in court as a citizen. Or, you might need to convince a liberal or progressive panel that personal responsibility is important, or that a large corporation might be doing good. In crossing those bridges, it is helpful to understand not just the attitudes, but the broad categories that specific attitudes are nested within.

In the case of the research discussed above, the broad structure of flexibility versus persistence is what determines attitudes specifically relating to nationalism, immigration, open borders, and the European Union. That suggests that all of these are not just surface opinions, but are rather the consequences of cognitive habits and preferences. That explains why people are relatively unlikely to change their own minds on some of these opinions, and also why they’re likely to think of themselves as open-minded and fair on the issues when they’re actually following their own long-term mental habits.

One implication for voir dire is that knowing these habits can be as important or more important than knowing the specific attitudes.

So Measure Attitudinal Structures and Not Just Opinions in Voir Dire

When getting ready for voir dire, it is common for attorneys and consultants to draw up a list of the factors that spell higher risk for your party in the case. That is a necessary step, but it is still important to think beyond just that list. Attitudes are not like a set of possessions that people just carry around. Instead, attitudes are driven by some deeper mental habits. So it helps to also identify the broader cognitive constructions that can drive reactions to your case. Here are a few.

Mental Flexibility.The study looked at one form of flexibility: the tendency to stick to or to set aside previous rules. Another form of flexibility relates to the ability to switch between analysis and empathy, and still another would be the ability to view a controversy in either moral or pragmatic terms. The demands will vary depending on the case, but it helps to ask: To what extent am I asking my jurors to set aside their established ways of thinking?

Authoritarianism. Another important background structure for jurors is authoritarianism, or the tendency to emphasize obedience or submission to rules, as well as an intolerance for ambiguity and a hostility toward anyone regarded as an out-group or inferior. In criminal cases, high authoritarians are “law and order” jurors, and in civil cases they are more likely to support those perceived as the more powerful or less subversive party. 

Need for Cognition. Some jurors will default to the simplest explanation, while others will welcome a cognitive challenge. The difference is a relatively durable personality feature called “need for cognition,” or “the tendency for an individual to engage in and enjoy thinking.” That disposition predicts, not just a willingness to wrestle with the complexity of a case, but also a number of more specific attitudes about social issues.

There are many more broad attitudinal structures, of course, and most also carry their own scales of questions that psychologists have validated. In voir dire, you won’t have the luxury of a full psychological workup on your potential jurors, but if you’ve done a solid job of exploring the styles of thinking that are likely to be higher risk for you in a particular case, you can often identify the questions that matter most.


Other Posts on Ideological Leanings: 


Zmigrod, L.; Rentfrow, P.J. & Robbins, T.W. (2018). Cognitive underpinnings of nationalistic ideology in the context of Brexit, 

Image credit:, used under license