Source of article CourtroomLogic Consulting.
Fake news. It’s the buzzword of 2018 and sadly, some say, it is quickly becoming a huge threat to journalism and democracy. But what exactly is “fake news” and why does it matter in the world of litigation?
Fake news is misinformation that is broadcast, shared or otherwise disseminated to the masses. Typically, we think of fake news as occurring on the internet, but it can (and has) appeared in print media as well. But for now, let’s focus on the internet, specifically, Twitter.
The most comprehensive “fake news” study to date was published March 9th in the journal Science. Written by a team of MIT researchers, Soroush Vosoughi, Deb Roy, and Sinan Aral, “The spread of true and false news online” was borne out of the events that transpired after the 2013 Boston Marathon bombing.
While literally on lockdown in their homes as authorities conducted their manhunt nearby, the study’s authors turned to Twitter to keep themselves tuned in to what was occurring just outside their doors. While some of what was being “reported” on Twitter that night was true, much of it was blatantly false. When discussing the idea for their research, they did not want to focus on whether the user knew or didn’t know that the shared information was false. They wanted to discover why false information seemed to be shared so rapidly on Twitter.
The authors ultimately investigated true, false and half-true news stories that spread on Twitter from 2006 (the year Twitter launched) to 2017. They studied 126,000 rumors, shared by more than 3 million people, more than 4.5 million times. That’s a boatload of data.
I won’t delve into the minutiae of the study, but the research focused on tweets involving seven core subjects:
- Urban legends
- Terrorism and war
- Science and technology
- Natural disasters
If you’re a data-nerd or simply want to know more, I’d encourage you to read the article recently published in The Atlantic. It provides a great summary of the research goals, design, parameters and results. But I’m going to skip to the good stuff:
When we analyzed the diffusion dynamics of true and false rumors, we found that falsehood diffused significantly farther, faster, deeper, and more broadly than the truth in all categories of information.
It took the truth about six times as long as falsehood to reach 1500 people, and 20 times as long as falsehood to reach a cascade depth of 10 [i.e., the number of retweets by a new user].
Translation: Lies are much sexier than facts.
Folks in the Twittersphere share falsehoods far more frequently than the truth. According to the study, falsehoods were 70% more likely to be retweeted than the truth. Interestingly, false political “news” and urban myths are the most frequently retweeted. And, in case you’re wondering, the authors analyzed whether this share-rate was the result of computers, rather than humans. Their study found that those infamous Twitter bots shared true stories as often as the false ones. Humans, not robots, spread the rumors. But why?
Two reasons: novelty and emotion. Now, here’s where the fake news study matters in litigation: novelty and emotion are both key elements in persuasion.
Novelty and Decision-Making
According to information and decision-theory, “novelty attracts human attention, contributes to productive decision-making, and encourages information sharing.” Novel information is also perceived as more valuable to the recipient. If this holds true for the Twittersphere, can you imagine the power of novelty inside the courtroom?
Rather than presenting judges, arbitrators and juries with a traditional legal argument or mundane set of facts, consider creating a theme, story, or argument that is a bit unexpected. Shocking your listener with something completely out of left field will likely hurt your credibility, but presenting something fresh and different might just work to your advantage.
Communicating a novel message can be as simple as tweaking the semantics or phrasing of your themes. But flipping the script and turning what the other side is hoping to characterize as a weakness into a strength can also be extremely effective. Obviously, the facts need to support the message, but presenting the best defense is almost always synonymous with a strong offense.
For example, when representing a defendant in a commercial breach of contract matter, the go-to messages typically focus on how the client met its duties and honored the terms of the deal. What listeners might not expect to hear from the alleged wrongdoer are messages that the plaintiff failed to live up to the terms of the contract, or that the defendant – by doing things different than what the black-and-white language states – actually provided a greater benefit to the plaintiff.
Or, in a wrongful death transportation claim, plaintiff typically goes all-in with “reptile theory” messages of safety. That very message can work just as effectively for defendants: after all, don’t we expect all drivers to be safe citizens on the road?
Emotion and Persuasion
We’ve written a number of times about the importance of creating a trial story, witness Q&A, or argument with underlying emotional elements. The “fake news” researchers focused on eight basic emotions – anger, fear, anticipation, trust, surprise, sadness, joy, and disgust – and found that tweets containing emotional content were shared more frequently than those with non-emotional content.
The takeaway: Emotion sells and it’s persuasive. So, the next time you’re brainstorming potential trial themes, try to tap into a message that either advocates or creates a “feeling.” Your listeners (including judges) are more apt to embrace messages with emotional undertones.
The “fake news” study offers very real lessons for litigators looking to persuade. The purveyors of fake news may have, knowingly or unknowingly, been peddling misinformation, but they tapped into an essential truth: information presented in a novel way, that evokes the reader’s emotions, is more provocative, memorable and persuasive.
Those same lessons apply in the courtroom, where the information is of course legally and ethically required to be truthful. According to the MIT research, the lies that spread so quickly on Twitter did so, not because they were lies, but because the tweets were 1) unique and 2) they elicited an emotional response. Those two elements compelled Twitter users to take action and share.
Lawyers looking to compel action in the courtroom – persuading a judge or jury to make a decision in their favor – should remember that novelty and emotion increase persuasive power. And an argument with both of those elements may up the odds of achieving a desirable outcome.