By Dr. Ken Broda Bahm:
The current cover of The Rolling Stone, usually reserved for the popular idols of our time, bears the face of Dzhokhar Tsarnaev, the Boston Marathon bombing suspect, complete with Hollywood good looks and a rock star sulk. That hasn’t gone over so well. The magazine is no stranger to controversy and expected some push back, yet still seems a bit surprised by the level of condemnation that ensued, with stores across the country including CVS, Walgreens, Kmart and several other national chains refusing to carry this issue. In response, the magazine’s editors emphasized the national importance of a story on how a popular and bright young man was radicalized into committing such a heinous act. That response, however, misses the point of the outrage: We are talking about the cover of The Rolling Stone! That is holy-of-holies as far as cultural honors are concerned, infused with an iconic meaning that is captured nowhere better than in that old song from Dr. Hook and the Medicine Show. We tend to assume that whoever occupies that cultural spotlight is receiving idol treatment. There are exceptions, like Charles Manson’s cover turn, but that led to a similar outcry in 1970.
The lesson is that people respond strongly to the symbolism of any message, and that is an important takeaway for persuaders of all stripes, including litigators. Jurors, of course, respond strongly to the symbols we invoke in argument (the callous villain or the unwitting victim for example) and also to the symbols of the courtroom itself (the bench, the bar, and the jury box). But in this post, I want to turn my attention to a different set of symbols that drive the beliefs and behaviors of lawyers as advocates. These symbols can also be thought of as kinds of idols to the extent that they represent something beyond themselves. Just like the cover of The Rolling Stone is taken to mean much more than “we have a story on this inside the magazine,” there are aspects of a litigator’s practice that are freighted with meanings that aren’t always obvious. Going all the way back to a key early enlightenment thinker, I will share some thoughts on how these idols can influence a litigator’s effectiveness.
But first, a quick relevant aside. For a law blawger, the equivalent of being on the cover of The Rolling Stone is being on The ABA Journal’s Blawg 100.
What is an ‘Idol’
We think of an idol as an object of religious worship or, ironically, as a pop star. But the term has an older meaning that is more relevant to persuaders. Dictionaries define an idol as “a person or thing regarded with blind admiration, adoration, or devotion,” or as “a mere image or semblance of something, visible but without substance, as a phantom.” Apart from famous personalities or carven images, an idol can also be an idea: a belief or a way of generating beliefs.
One of the first philosophers to explore this notion of an idol was Sir Francis Bacon (1561 – 1626). Viewed as one of the inventors of empiricism and the scientific method, Bacon is also one of the first to take an interest in not only what we know, but how we convince ourselves of what we know. One of his most famous contributions on that score was his Theory of the Idols. Taking aim at what he considered to be the chief intellectual fallacies of his time, Bacon focused on four “images of the mind” that receive veneration, but are without substance. Commentators since have recognized that Bacon wasn’t just describing his time, but was instead identifying four general categories of mental mistake, and many of the themes that he introduced are still, more than 400 years later, being explored in books like Thinking Fast and Slow and The Righteous Mind.
Thinking about how litigators create and maintain beliefs about what works in persuasion, some of these idols still have a strong hold.
The Idols of the Tribe
These false notions, Bacon says, “have their foundation in human nature itself, and in the tribe or race of men.” They reflect our tendency to believe that which is believed by others. Psychologists are well aware of this bandwagon effect as logicians are of the ad populum appeal. For legal persuaders, it means that if you hear the same thing enough times at enough CLE’s, then you accept it as true without wondering how it is proven. A perfect example is the familiar claim that 80 percent of jurors make up their minds in opening statement. But is it true? As Dr. Karen Lisko has written, this has been one of the most persistent urban myths in legal persuasion. While there was a study showing that percentage forming an initial leaning after opening, the study was in 1958 and that study, as well as nearly all related studies since, have shown that jurors don’t always stick with initial leanings but, instead, shift throughout trial. Indeed, one study (Hannaford et al., 2000) showed that 95 percent of jurors will change their minds at least once during trial. So, the lesson is: It ain’t over after openings.
The Idols of the Cave
Using the metaphor of a cave for the individual mind, Bacon says that everyone “has a cave or den of his own, which refracts and discolors the light of nature; owning either to his own proper and peculiar nature; or to his education and conversation with others; or to the reading of a book…or to the differences of impressions.” In other words, who you are can’t help but influence how we perceive. That, of course, is the dominant principle driving jury selection, but it affects attorneys as well. When a case is won or lost, litigants often can’t help generalizing from that possibly idiosyncratic experience. So your worst juror was a school teacher: Does that tell you something about school teachers, or does it tell you something about just that individual? Even as we understand the logic of a hasty generalization, it can be incredibly difficult to set aside our own experience. And that is something that can just get harder as one gets more experience. Great litigators are those who regularly doubt what they’ve learned only in the cave of their own experience, and instead question that experience by running it by others as often as possible.
The Idols of the Marketplace
Arising from “commerce and consort” with the rest of society, Bacon says the idols of the marketplace are based in language. “For it is by discourse that men associate,” he says, and “therefore the ill and unfit choice of words wonderfully obstructs the understanding.” We give words power, and tend to assume that the way we understand them equates with the way others will understand them. For litigators, it suggest that we fall in love with our language. Because a trial theme speaks to us, passionately, we assume that it will do the same for jurors. But without testing it, we don’t know. The pitch that feels perfect may just be a perfect mirror of our own opinions. Similarly, there is also no special magic to the language on which law is based. As Bacon argues, “nor do the definitions or explanations wherewith in some things learned men are wont to guard and defend themselves, by any means set the matter right.” In other words, the legal words aren’t the final words. The jury or the judge will inevitably filter, interpret, and apply the concepts in a way that makes the most sense. So, good advocates speak to the likely understanding more than to the proper understanding.
The Idols of the Theater
Bacon’s last idol focuses not literally on theater, but on the theatrical role played by other belief systems which, as he says, “have immigrated into men’s minds from the various dogmas of philosophies, and also from wrong laws of demonstration.” These uncertain methods of proof are just “so many stage-plays, representing worlds of their own creation after an unreal and scenic fashion.” The modern object of Bacon’s scorn is easily recognizable in the pseudo-science or pop psychology driving some broadly accepted views of persuasion like “Neuro-linguistic programming” (witnesses look up and to the right when testifying) or the Reptile perspective that elevates a so-called reptilian brain to the point that its basic survival instinct is believed to oversee all of our brain’s capacities. Though the Reptile and other perspectives are valuable for reasons other than their scientific truth-value, it is a good idea to apply a healthy dose of skepticism and a “how do you know that” attitude to all general claims about what works in legal persuasion. And of course, I include this blog in that assessment as well: Don’t just trust me. Instead, think about sources, reasons, and the underlying social science and philosophy.
The bottom line is that we are creatures of mental habit, and even if we cannot escape those mental habits, we can respect and acknowledge the power they have. “The understanding left to itself,” Bacon wrote, “takes the same course.” Much good could be done if lawyers, like Bacon, insisted on a distinction between what is known and what is merely believed. They already insist on that distinction when it comes to the facts of the case, and should be equally committed to that distinction when it comes to understanding legal persuasion.
Finally, if you’ve made it all the way to the end of this post, you might wonder at how I get from Dzhokhar Tsarnaev and The Rolling Stone cover to bias in litigation settings, to misperceptions of trial attorneys, and ultimately to a 16th Century philosophy of knowledge (six degrees of Francis Bacon anyone?).
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Other Posts on Persuasion Philosophy:
- Know Your Philosophy of Persuasion (Top ‘Perspective’ Posts)
- Know Whether You Need a Guru or a Scientist
- Leading Motives and Trailing Personal Stories: Lessons in Jeffrey Toobin’s “The Oath”
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Photo Credit: Eva Rinaldi Celebrity and Live Music Photographer, Flickr Creative Commons