Your Trial Message

Your Trial Message

(formerly the Persuasive Litigator blog)

Account for Both Cue and Rebound

By Dr. Ken Broda Bahm:

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The prospects for persuasion in some cases can seem quite dismal. Those who are most committed to a false belief, and therefore most in need of persuasion, are also those who are most likely to turn away information that questions those existing views. Indeed, the act of hearing and responding to opposing views can make your target all the more committed to the belief you’re trying to change. A recent Mother Jones Article reports on one such situation, focusing on the views of parents who oppose childhood vaccination, believing that this preventative step carries great health risks including autism. The article reports on research showing the apparent impossibility of changing the minds of the anti-vaccine crowd. The researchers from Dartmouth College and Exeter in the U.K. (Nyhan et al.,  2014) set out to test four different messages based on information shared by the Centers for Disease Control. Not one of the messages had a significant effect in getting the anti-vaccine group to accept the argument that vaccinating carries much less risk than not vaccinating. Worse, several of the corrective messages actually backfired and made viewers even more opposed to vaccination. 

The goal was to find out what persuasive approach worked best. One message focused on showing the science refuting any connection with autism. A second message focused on the higher risks and consequences of diseases in unvaccinated children. A third message consisted of a story of an unvaccinated 10-month-old child who experienced a life-threatening fever as a result of that decision. A fourth shared imagery of diseases made more likely by avoidance of vaccines. All four failed, in some cases dramatically. In response to the first message, Mother Jones reported, “the likelihood of saying they would give their kids the MMR vaccine decreased to 45 percent (versus 70 percent in the control group) after they received factual, scientific information debunking the vaccine’s autism link.” So, it is not exactly a ringing endorsement of the potential for human persuasion. Because these results are already well reported in the Mother Jones article, as well as a second related article, I am going to instead take a detective’s view of why that backfire effect might occur. The two likely suspects point to a couple of important principles that apply broadly to persuasion.

 

We have written before on the importance of imagery, as well as narrative structure in persuasive messages of all kinds, so we might expect that the pro-vaccine message based on the story, as well as the one based on the pictures, would be the most effective. Surprisingly, though, they were the two messages most likely to backfire. “Hearing the frightening narrative actually increased respondents’ likelihood of thinking that getting the MMR vaccine will cause serious side effects…” the article reported, and “looking at the disturbing images increased test subjects’ beliefs that vaccines cause autism.”

Thinking about that counterintuitive result, let me propose two mechanisms that could explain it, each with an important lesson for legal persuaders.

Counterarguing

When you hear information that you know conflicts with a current belief or attitude, your mind is busy — not busy listening or evaluating, but busy thinking of responses. Those responses are necessary to maintain your cognitive consistency, your ‘belief homeostasis,’ and to more broadly feel that you’re right. Based on these responses, a message might backfire if the counterarguing it invites is stronger than the message itself. Anti-vacciners, for example, listened to the message while their brain is working overtime looking for flaws and answers to the argument. At the end of that process, they may be more sure that they’re correct just as a consequence of the fact that they’ve exercised their internal self-justification muscles.

The same can happen in litigation: The defense attorney in an oil and gas royalty case, for example, who stands before a jury trying to convince them that energy companies are honest and put the best interests of customers first, is likely to face a wave of internal counterargument that could leave the jury even more committed to their perceptions of energy companies’ self-interest and greed.

So how do you stop counterarguing? You need to frame the message so that the listener is initially tricked into turning their counterarguing off. For example, I would have liked to see the vaccine message study test an approach that provided some initial agreement with the anti-vaccine parents’ views. If the video admitted, for example, the fact that there are some side-effects to vaccination that, while rare, are very serious and genuine. The listener thinks, “okay, I agree with that…” and, for awhile at least, they stop counterarguing, and in those moments they might even hear something that changes their mind. That might be the solution for the litigator as well: Start by admitting that the company is driven by a profit motive before moving on to explain that profit, in this case, motivated the right actions and not the wrong ones.

Cuing

Cuing refers to the fact that a message can bring something to mind, and what is brought to mind can be more important than the message itself. The mode of argument can make some ideas more salient. In the case of the study, the lead author Brendan Nyhan of Dartmouth explained, “If people read about or see sick children, it may be easier to imagine other kinds of health risks to children, including possibly side effects of vaccines that are actually quite rare.” Even though the point of the message is to argue the opposite (“risks to children are greater without vaccines”), the effect of the message could be to get people thinking about health risks which they then, based on current attitudes, associate with the vaccines themselves (“thinking of any health risks at all makes me averse to vaccines…”).

This same cuing effect can happen in litigation as well. A plaintiff attorney’s emphasis on the extent of injury might call to mind jurors’ stereotyped images of the malingering plaintiff, with the result that the more the focus is placed on quality of life, the more the juror comes to doubt the actual injury.

So how can you stop cuing? Well, the truth is, you can’t. But you can keep that phenomenon in mind. In a mock trial, pay attention to what the jurors are spending their time on in deliberation. It is often a surprise to clients in personal injury and products claims, for instance, that the mock jurors will spend more time focused on the plaintiff’s actions rather than the defendant’s. Attorneys may inadvertantly cue that focus when they send the message that this is a case about the plaintiff, thereby putting their actions and choices in the center of the spotlight.

One final word: The fact that sometimes people are impossible to persuade and just dig in even stronger in the face of facts and argument — that’s why we have peremptory challenges. That’s also why we counsel using your precious voir dire time to find out about those hard beliefs, and not to try to talk your panelists out of them.

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Other Posts on Internal Persuasive Drives: 

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Nyhan, B., Reifler, J., Richey, S., & Freed, G.L. (2014). Effective Messages in Vaccine Promotion: A Randomized Trial. Pediatrics. Published online March 3, 2014. doi: 10.1542/peds.2013-2365. 

Photo Credit: eschipul, Flickr Creative Commons