By Dr. Ken Broda Bahm:
Consider Rodin’s “Thinker” — The sculptured image of the solitary and self-contained individual engaged in what we take to be humanity’s sine qua non: independent thought. It is inspiring, but it is also an idealization. The more carefully we think about thought itself, the less truly independent it turns out to be. In one recent post, I wrote that “People don’t reason in isolation, they reason socially,” and that along with the advice to consider those fundamental social influences in legal persuasion, led to some interesting discussions with readers. Instead of acting as though we are engaging our fact finders on the blank plane of pure logic, it makes much more sense to account for and adapt to the social and tribal understandings they are bringing to the task.
A recent article reminded me of this point. The piece, directly titled “How Do We Believe?” comes from cognitive psychologist Steven Sloman of Brown University (Sloman, 2022). The article is narratively structured as the author’s own story of developing as a cognitive researcher, illustrating the community origins of his own thoughts on social reasoning. His perspective builds on the “dual processing” model of decision-making, popularized in Daniel Kahneman’s book Thinking Fast and Slow, which notes distinctions between our quicker and more intuitive decisions and our choices made only after longer deliberative processing. The point is that neither is independent. Sloman writes, “I have come to realize that a key reason for our success as cognizers is that we rely on others for most of our information processing needs; we live in a community of knowledge. We make use of others both intuitively — by outsourcing much of our thinking without knowing we are doing it — and by deliberating with others.” In this post, I will share a few implications on ways to practically account for this social outsourcing when it comes to understanding and persuading a jury.
Watch Deliberations
I often say this to law students, as well as to experienced attorneys: There is no substitute for watching a jury deliberate to a verdict. Of course, you can never spy on your real jury, but that makes it all the more important that you find or create other mock juries to spy on. Watching that “network of brains” working together on their way to a decision can be messy and frustrating at times. Juries will only rarely follow the process exactly as the law and the instructions envision it, but they will follow a process. It is not just about the content of what they say but about the patterns in what gets noticed, believed, repeated, reinforced, and used during the discussion. The more you understand that, the more you can account for it in creating your message. Apart from its value in helping you prepare a specific case, watching deliberations will help you become a better legal persuader generally.
Socialize Your Knowledge and References
When they’re in the box and the deliberation room, the jurors are not just relying on each other, but on the full “cultural networks” that they inhabit outside of the courtroom. As Sloman notes, “Humans are tribal in the most basic sense, in the way they think,” and as a result, “many of the opinions we espouse have less to do with thought than with who we affiliate with that takes a position.” So adapting to your audience means learning as much as you can about those affiliations, a task made much more convenient and essential by the sheer amount of social media data that is public.
As you learn about your fact finders’ social milieu, it also helps to adapt your language in a social direction. Referring to what we heard, or to what we know or to what we all remember, is a way to collectivize and to appeal to a common identity and understanding. This kind of “We” speak isn’t just a way to descriptively address a group, but also a way to invoke the social roots that make information credible.
Focus on Social Process, not Product
Sometimes when we take shortcuts in our thinking about persuasion, we can tend to focus on an outcome: Will they buy it or not? But better than that consumer-model of thinking is the broader questions: What will they do with it? How will they engage and react? How will they process? This is perhaps the best reason to prefer the answers you get from a focus group or a mock trial over the answers you would get from something like a survey. Not only is it an opportunity to see how they get there, but it is also a reminder of the fundamentally social roots of their thinking on the issues that underly your case.
Other Posts on Juror Reasoning:
- Expect Jurors to Project Themselves into the Situation
- Understand Jurors’ Process on Pain and Suffering
- Tap Into Your Jurors’ Reward System
Sloman, S. A. (2022). How do we believe?. Topics in Cognitive Science. URL: https://onlinelibrary.wiley.com/doi/abs/10.1111/tops.12580