By Dr. Ken Broda Bahm:
Politics isn’t just a good way to start an argument, it is also a pretty reliable predictor of general leanings in litigation. Out of all of the demographic traits that we have looked at — factors like sex, race, education, and income — reported voting behavior is in most cases the most reliable way to tell whether, as a baseline tendency, a given juror is more likely to favor a plaintiff or a defendant. Generally speaking, Democrats will be more open to a plaintiff’s case and to higher damages, while Republicans will be more likely to side with the defense or with lower numbers. We have written in the past on several of the ways that differences in political orientation also translate into more subtle differences that are meaningful to litigators. Liberals and conservatives, for example, respond differently to fear appeals and have distinct thresholds of tolerance toward a variety of groups. Recent research (Stern, West & Schmitt, 2013) points to one additional difference in the ways liberals and conservative perceive group consensus, and the degree of motivation members of each group have to feel like they are unique. Conservatives tend to overestimate consensus, believing themselves to be part of a like-minded community. Liberals, on the other hand, tend to underestimate consensus, believing themselves to be unique individuals distinct from the mainstream.
Chadly Stern, Tessa West and Peter Schmitt of New York University conducted an online survey, asking participants to self-identify their political leanings, indicate their own agreement with a number of political and nonpolitical statements, and then estimate how much others of their own political persuasion would agree or disagree with those statements. Liberals believed that their own views differed substantially from other liberals, while they were actually quite similar. Conversely, conservatives believed that their own views were widely shared by those on their side, when there were actually some important differences. As the authors note, these individual differences between liberals and conservatives appear to be reflected in broader differences between liberal and conservative media outlets and social movements. Because jurors are reacting to cases both as individuals and as implied representatives of a community’s judgment, these findings should add to litigators’ repertoire for audience analysis and adaptation.
Research and Experience: Differences in Liberal and Conservative Collective Self-Image
It is one of the oldest social perceptions: How do we see ourselves within the tribe? As our more modern tribes have increasingly tended to break along political lines, the perception differs. Based on the study results, as well as comments the authors provided to ScienceDaily, there are a couple of implications that help to explain conservative and liberal self-perceptions.
Conservatives Have an Easier Time with a Collective Narrative
Of course, both liberals and conservatives have their own broad narratives focusing on who they are and what they want. But based on the study and related observations, conservatives do seem to be more comfortable with the bandwagon. That may explain why the “Fox Nation” is so much more popular and influential than its “Lean Forward” ideological counterpart of MSNBC. It could also explain why there will probably never be a widespread propagation of left-wing talk radio. If conservatives tend to overemphasize consensus and to downplay the uniqueness of their own opinions, then it is all the more important for conservatives to hear their views explained and reinforced.
Liberals Have a Harder Time with Consensus
Differences in perceived consensus can also be powerful within social movements as well. “The Tea Party movement developed a succinct set of goals in its incipient stages and effectively mobilized its members toward large-scale social change quite quickly,” according to Chadly Stern a psychology doctoral candidate at New York University. “In contrast, despite its popularity, the liberal Occupy Wall Street movement struggled to reach agreement on their collective mission and ultimately failed to enact large-scale social change.” By underestimating the level of agreement inside their own ranks, liberals may have trouble developing cohesion and solidarity.
What Does This Mean for Litigators?
Apart from the general goal of better understanding the political identities that judges and jurors bring to court, I think the differences in perceived group opinion also point to a strategic difference in framing your persuasive message. There are “we” appeals that leverage and direct consensus, and then there are “you” appeals that elevate individual perception and judgement. The situation and the audience composition might lead you to emphasize one over the other. But when facing a diverse body of fact-finders, one implication is to appeal to both.
Appeal to Consensus: The ‘We’ Appeal
Taking the example of a products liability defense, part of your message could emphasize collective judgment:
As a society, we make a decision to live with a certain amount of risk. We would all be safer if we never got in a car, for example. But our lives in modern times would be quite limited if we did that. All of us know there are risks, and that is why all of us exercise informed judgment, and all of us take reasonable precautions. We make ourselves as safe as we can reasonably be, knowing that does not eliminate the possibility of danger. That is exactly what my client did in this case.
And Appeal to Individuality: The ‘You’ Appeal
Alternately, or in addition, you could make an argument in the same case in a way that prioritizes the uniqueness of your audience’s individual judgment.
Most people might assume that, if a product is used, and then a tragedy occurs, then the product must be to blame. But this case is not being evaluated by most people, it is being evaluated by this jury — by you. And you are going to have unique access to the facts, the testimony, and the other evidence. That information sets you apart. In the end, my client and this court will all rely on your ability to get past the easy associations that might work if we were in an opinion poll or on a talk show, but cannot get past an informed and skeptical juror.
I am not suggesting a cookie-cutter approach such that conservatives would necessarily like the former opinion while liberals like the latter. Both are likely to be effective across the spectrum. But studies like the one covered in this post suggest that there could be a difference in degree of effectiveness. Generally you can count on having both liberals and conservatives on your jury. Some venues, however, will test that principle, and based on the balance you observe, you may weight one or the other. Or, more generally, you might embrace variety in the name of covering your bases.
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Other Posts on Political Mindset:
- Account for Selective Perception: 2012 Presidential Debate Series, Part Four
- Know the Limits of Political Empathy
- Speak to the Brain’s Politics
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Image Credit: Opensource.com, Flickr Creative Commons