Source of the following article Persuasive Litigator.
By Dr. Ken Broda-Bahm:
How do you protect yourself against the nasty flu that is going around this winter? Well, you can partially protect yourself with a vaccination. Introducing your body to a weakened form of the bug helps to build up your ability to resist when exposed to the real bug later on. That is the way inoculation theory works in human communication and persuasion as well. To take a recent example, researchers at the University of Cambridge looked at what could build greater resistance to the onslaught of false news stories, and found that an online game they developed actually works as a kind of vaccine. As outlined in a current ScienceDaily release, the game “puts players in the shoes of an aspiring propagandist to give the public a test of the techniques and motivations behind the spread of disinformation — ‘inoculating’ them against the influence of so-called fake news in the process.”
What is most interesting about this game, available free online, is that works to build resistance to fake news by allowing players to learn more about strategies and techniques one would use on the other side to manipulate news and social media in order to generate anger and mistrust. While that might hold some implications to how people handle false news, I am interested in the broader point about inoculation. In a persuasive setting, inoculation works, and the process is parallel: Let people understand the strategy, including why and how it would be used, and they will become better consumers who are less susceptible to blunt versions of that strategy. This approach can be applied to a number of problematic arguments — appeals that may be convincing on face, but become a bit more obvious in the eyes of jurors who appreciate the technique. In this post, I will share some examples of a few common areas for inoculation.
Inoculate Against Sympathy
When you believe that the other side is going to play on the simple emotions surrounding a loss:
A tragedy occurred, and no one here can forget that. At the same time, the proper focus of a legal case is never on the emotions, but is always on the reasons, the evidence, and the law on the question of responsibility. Sympathy tells you nothing about responsibility, so it doesn’t have a proper role in a trial like this one. Still, one side or the other can sometimes feel the pull of playing on sympathy — because it is there, because it is human…or because it distracts from the reasons, the evidence, and the law. It is okay to feel it, but know that when you feel it, that feeling isn’t helping you answer the questions of this case. Emotions are fine, distractions are not.
Inoculate Against Apology
When you believe that a party that has done something wrong plans to reduce their responsibilities and damages by making an apology for that action:
When someone is caught, here is the thought that goes through a person’s mind: ‘What can I do to lesson the damage to me?’ That’s the thought that has been going through this Defendant’s mind since the incident. The answer? ‘Maybe I can seem sorry and contrite, maybe I can apologize. Maybe if I do, that will drain away some of the anger. Maybe if I do, that will make people forget about the decisions — the clear and knowing choices – that I made leading up to the incident. ‘Maybe if I apologize,’ they are thinking, ‘I will be off the hook.’ Look for that, and be careful, because it sometimes works.
Inoculate Against Mystification
When you believe that the other side is going to hide in complexity and details, and encourage jurors to feel that it is too complicated for them to work out on their own and ‘just trust the experts’ instead:
The other side is going to try to make this as complicated as possible. They are going to show spreadsheets, and schematics, and detailed diagrams of every sort, and they are all designed to communicate complexity. Why? Because they want you to distrust the common sense reaction that you will have when you see these two products next to each other: that first impression that will tell you that they’re defending a copy or our trademarked product. Instead of trusting that reaction, they want you to get sucked into the details and think that, with that much complexity, there must be an important difference. But don’t fall for it. Don’t let their details make difficult what is, for your own eyes, easy. Don’t lose your grasp on your own common sense.
Inoculate Against Oversimplification
On the flip side of that, the other side might be the one trying to distract the jury away from the important details by encouraging them to adopt an oversimplified view of the case.
The other side in this case is going to keep repeating a two-word mantra: “It’s simple.” They are going to want to focus on what is easy-to-grasp, and what is memorable. They are ultimately going to want you to opt for what is simple and easy instead of what is thorough and accurate. The judge has told you that your job is to resolve this case based on the law. And to do that job, it will take some work and some attention to detail. It is certainly doable, and I have no doubts that you can do it, but I’m not going to lie to you: To do it right — not easy, but right — you will need careful attention to the details, and not just the simple themes, of this case.
That same approach can apply to any situation where you want to build juror resistance to an argument. The common factors in this approach are: a) Exposure: Tell them what the appeal is or will be; b) Response: Tell them why that appeal is wrong or incomplete; and c) Alternative: Tell them how they should proceed instead.
Other Posts on Inoculation:
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