By Dr. Ken Broda Bahm:
This past Monday brought tragedy as bombs placed near the finish line of the Boston Marathon caused three deaths and hundreds of injuries. The attacks, at this point bearing the hallmarks of either an international or a domestic terrorist attack, have also reopened a wound in the national psyche, providing the fresh reminder that we live in a world that is never free of the risk of politically motivated violence. In the months and years following the 9-11 attacks, I remember clients asking “how is this likely to affect the jury pool?” In the big picture, of course, that can sound like a somewhat trivial concern, yet as a touchstone for everyone, these tragedies have important implications for anyone wanting to understand the breadth of public opinion. Now that we’ve again witnessed our own insecurity even on U.S. soil, the tragedy has brought new attention to the ways these events change our worldview and our decision making.
Tragedies change the way we think, and the way we think always matters to how we’re persuaded. Even when court cases have nothing to do with the tragic events at issue, those events still establish a context that a legal persuader needs to work within. In a report yesterday on NPR, Alix Spiegel talks to University of Arizona psychologist Jeff Greenberg about the ways the public participates in common tragedies, including reactions that go beyond shock, mourning, and a resolve for justice. Specifically, Greenberg talks about research showing that people become more focused on their own vulnerability and mortality, become more committed to their own belief systems and more polarized in the process, and become less tolerant of differences in others. Those changes influence how we view daily events large and small, and can also influence how jurors make moral judgments in court.
Based on Dr. Greenberg’s explanation and the research he points to, persuaders should adapt to several differences in the aftermath of a national tragedy.
More Immediate Awareness of Mortality
In times of crisis, we’re attuned to our own mortality because the fact of death itself has become more salient. “Alas poor Yorick,” Shakespeare’s Hamlet spoke to the skull, “I knew him, Horatio.” The tragedy lies in the awareness that the bell tolls not just for Yorick, but for Hamlet and all of us. We tend to remember that after a disaster. As Dr. Greenberg shared in the NPR interview, “the thoughts of our mortality tend to linger outside of our conscious attention but still affect us.” To support that, he refers to research conducted after the September 11th attacks showing that in word completion exercises, participants were more likely to gravitate to death-related words, completing “cof” with “coffin,” for example, rather than “coffee,” and this effect persisted for a long time after the tragedy.
What this could mean in litigation could depend on the case, and some claimed damages might seem trivial in the context of what others have suffered. But in other cases — wrongful death, malpractice, or products cases that involve actual or potential deaths — jurors’ greater attention to mortality could play a different role. In normal times, a personal awareness that kind of a risk would be walled off or pushed outside the typical juror’s mindset, making it harder for plaintiffs to call upon the unique and subjective sense of danger they often depend on. After a crisis, however, that wall between normal life and devastation is likely to be a little thinner.
Greater Committment to One’s Own Belief System
This week, we are all Bostonians. And before that, we were all New Yorkers, and we’ve all been residents of Aurora and Newtown. After a crisis, we are reminded of our common humanity and our common sense of national identity. But this immediate sense of pulling together can be quickly followed by a sense of polarization. That at least is what Greenberg observed after September 11th. “At first everybody got closer together,” the psychologist observes, but that only “lasted a few months. And after that, America got more polarized than ever, and people got more invested in their own belief systems, whether they be conservative or liberal.” When our sense of a “just world” and an ordered universe are thrown off, the rock that we cling to is our own core beliefs, which are likely to become stronger and more distinct.
What this means for litigators is that it becomes all the more important to focus on the ways that core beliefs intersect with your case. You do this by conducting community attitude surveys and running focus groups and mock trials. You also do this by carefully constructing questions designed to uncover the beliefs and attitudes that matter most to your trial.
Less Tolerant of Difference
We like to believe that tragedies bring out the best in us, and certainly, the examples of that being true are many: Runners in Boston finishing the marathon only to run an additional two miles to a hospital in order to donate blood. But there is also an uglier side to crisis response: Even as the tragedy pulls us together, it might also serve to pull us apart from those we see as different or dangerous. This might explain why, in the immediate aftermath of the explosion, one runner was questioned, searched, and identified by the national media as a “suspect” because he engaged in behavior – running from the scene – that seems pretty understandable in context…and because he is a Saudi national. That is an instant example of a longer-term psychological response. “When death is percolating close to consciousness, people become more ‘us vs. them,'” according to Greenberg, “They become defensive of their belief system, positive toward those they identify with and more negative to those who espouse a different belief system.”
This focus on difference as threat can play a role anytime your client or witness appears to diverge from the average juror. In a post-crisis atmosphere, you will want to devote more energy to the task of bridging the gap by drawing upon common experience, common beliefs, and common conditions of life.
Persuasion creates a setting where small things matter, and this is especially true in the complex arena of the law. Add in a big thing — something that literally everyone is thinking and talking about — and it can’t help but change the context. The bottom line for the legal persuader is to know the situation.
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Other Posts on Responses to Tragedy:
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Spiegel, Alix (2013, April 17). Boston Blasts A Reminder of ‘The Fragility of Life.’ NPR News. URL: http://www.npr.org/blogs/health/2013/04/17/177562770/Boston-Blasts-Remind-Us-Of-Fragility-Of-Life
Photo Credit: Photoree, Creative Commons License (photo of statue of Hamlet in Stratford-on-Avon, England)