Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm: 

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If I followed the modern ‘clickbait’ style in coming up with a title for this post, maybe I’d go with “You Won’t Believe the Psychological Technique that Creates Greater Influence,” or perhaps, “Twenty Ways to Persuade with Curiosity: #19 Will Shock You!!” As much as we might hate the over-the-top social media versions (not to mention the one-sentence per click slow-loading experience), the more basic strategy works: You can generate attention and influence by piquing curiosity. It works because we’re motivated to discover the answer. Reporting on recent research in Psyblog, the first author in the study (Polman, Ruttan & Peck, 2016), Evan Polman, said, “Evidently, people really have a need for closure when something has piqued their curiosity. They want the information that fills the curiosity gap, and they will go to great lengths to get it.” Over the course of several studies, the researchers found significant and strong effect sizes for using curiosity to motivate people to choose healthier food, to take the stairs, and to watch more ‘highbrow’ entertainment. “People are motivated to satisfy their curiosity, and find enjoyment in doing so.”  

These findings are joined by an even more recent meta-analysis of research on what is called the “pique” technique (Lee & Feeley, 2017). The research reviewed a total of 17 studies showing the effectiveness of curiosity as a compliance-gaining technique. When a panhandler asking for an odd amount, like 47 cents, it piques curiosity, disrupts our normal processing, and makes it more likely that we’ll give. As a strategy of persuasion, it makes sense. The most basic need is to know what motivates, and we are motivated not just by direct or tangible benefits, but also by attractive psychological states like the need for completeness. When our curiosity is satisfied, we feel more comfortable and whole. Legal persuaders can make use of this style. Trials can be long, technical, and boring. For an individual juror, the material being covered can suffer from a lack of personal relevance. If legal advocates can pique curiosity from time to time, then they’ll do better at holding attention and maximizing influence. This post (in case you’re curious) will talk about a few ways of doing that.  

Ways to Create Curiosity in the Courtroom

Many attorneys like to be direct and just lay out the case, thinking that when it comes to your fact finders, it is much better for them to know your case than to be curious about it. But what drives knowledge? Attention. And what makes attention easier? Curiosity. So building and then satisfying some curiosity along the way can be a useful strategy. Here are a few places in the trial process where it can work.  

1. Use Rhetorical Questions

A simple technique is to embed rhetorical questions into your oral arguments and your opening, initially converting a statement (The defendant had no good reason for breach) into a question, (What reason did the defendant have to breach?). Not only would that be a good tactic in opening statement for avoiding an objection for being “argumentative,” but as I’ve written before, it also reduces persuasive resistance by activating the frame of inquiry, not advocacy. 

2. Tease Some of Your Reasons

Presenting all of your good stuff as early as possible might seem like a good idea. But there is research to support the idea that holding off on some of them (the old advertiser’s, “But wait, there’s more” tactic) can be a good way of maintaining interest. A litigator, for example, could note, “There is much more evidence of intent in this case, but for now, let’s look at this memo…” In addition, the act of just numbering your reasons explicitly is a good way of sending the message that there is more to come. 

3. Defer an Issue in Witness Examination

Letting a witness and a jury know that an issue will be covered down the road can be a way of building anticipation. The message of “We’ll get to that later…,” can help to put some emphasis on an issue to a juror. In the case of an adverse witness, the attorney taking a deposition or conducting an examination can also apply a little “stress as strategy” in order to hold back on an issue that a witness is likely to be dreading.

4. Build a Demonstrative Exhibit Over Time

When using a demonstrative exhibit that pulls together and frames prior testimony, there is something to be said for putting it up a little at a time. You can do that either technologically (a PowerPoint build), or in the old fashioned way (markers on a flip chart), and either way can help to pique a little curiosity about what it is all building up to. Adding a piece to a list, chart, or diagram across a number of witnesses, can help to tie the testimony together.

5. Use a Prop

Using a prop with an initially unexplained purpose can add some drama to the presentation as well. Pushed to an extreme, of course, it can be a distraction. But ceremoniously placing an unopened box on the table before you begin, for example, can pique juror interest for a while at least as they wonder, “What’s in the box?” In one of my cases, for example, the presenting attorney put a very large stack of paper in front of him as he began opening statement in a products case. Near the end of the opening he said, “But the key question is, ‘What did the company know about these dangers?’ Well, you’ve probably wondered about this stack of paper: These are all the studies that the company knew but did not disclose…

6. Pose a Problem at the Beginning of Opening, Answer It at the End

Another technique for generating some curiosity might be to raise an issue at the beginning of an opening statement but then save the answer for later at the end. For example, early in the opening, you might ask, “Now, you might wonder what would make an established and reputable company choose to break its word? Well, for now, I am going to continue to preview the evidence and walk through the timeline, and at the end, I think the answer is going to be clear.” Then, at the end, return to that question: “Earlier I asked, what would make a reputable company break its word? At this point, the answer is clear: greed, pure and simple.”

7. Preview Your Closing

Of course, you can also apply the same approach, but extended over the course of the full trial. For example, if you are really confident on a few particular points, you could say something like this: “It is early in the case, and they’ll have a day or weeks to put in evidence. But there are three questions they won’t be able to answer, three holes in the proof that none of their testimony or exhibits will be able to fill.” Leaving those three problems unidentified then puts the jury in the frame of mind to look for holes as the other side puts in their case. Finally, at the end of the case in closing, you can say, “Remember what I said in opening? Well, the three holes that were never filled are…”

This tactical approach is at odds with the attitude that says, “Just put the evidence out there and let the fact finders decide.” The jurors themselves might want directness and not strategies. At the same time, it is undeniable that the manner matters: How you put the evidence in has a direct effect on how it is noticed, processed, and retained. And techniques that build curiosity have the opportunity to provide greater engagement and better influence.

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Other Posts on Motivation: 

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Lee, S. & Feeley, T.H. (2017). A meta-analysis of the pique technique of compliance. Social Influence, 12 (1).

Ruttan, R.R., Polman, E., & Peck, J. (2016) “Using Curiosity to Increase the Choice
ofShouldOptions.” Poster to be presented at the Judgment and Decision Making Pre- Conference
at the Society for Personality and Social Psychology, San Diego, CA.

Image credit: 123rf.com, used under license