By Dr. Ken Broda Bahm:
In this country, and particularly in some venues, our jury pools are becoming more diverse and more obviously multicultural (Marder, 2013). While the judiciary has been slower to reflect the face of a changing America (Ifill, 2009), it too is likely to include over time a greater proportion of those who come from something other than this country’s dominant culture. As the diversity of legal audiences continues to increase, litigators will need to increasingly account for cultural differences in persuasion. We like to think that “We are the World,” and to believe that a common core of reason and perception unites us as human beings, irrespective of culture. A new line of research, however, is calling that into question by pointing out that our thoughts and our styles of thinking are less universal and more culturally dependent than we might have thought. One key difference, for example, relates to the tendency to think either in holistic terms (perceiving broad systems and seeing oneself as part of a larger whole) or in analytic terms (focusing on parts and components while seeing oneself as individual and autonomous).
Of course, members of all cultures engage in both styles of thinking. Still, like right-handedness or left-handedness, the default preference can be very important. According to a review of recent research covered in Pacific Standard (Waters, 2013), Westerners may be wired by culture to reason analytically and see themselves as separate from others. Many Eastern cultures, in contrast, may be more prone to view events and people through a more holistic lens, and that difference could have a strong pull on how we reason on moral issues. This is an important aspect of psychology that litigators should take into account. Since you’ll be less and less likely to get a culturally uniform jury, smart advocates will tailor their appeals so they work for a diverse audience . Even without the cultural difference, it seems safe to say that within the same individual, one is likely to have both analytic moments and holistic moments. For that reason, it is worth thinking about how your case speaks to both the holistic and the analytic.
The Research: Is It a Small World After All?
The article (Waters, 2013) focuses on a number of studies highlighting the apparent cultural differences in how we use our cerebral cortexes. For example, in some perceptual tests (the “which line is shorter” kind), those of us in the West are often better because we are more likely to break the image into its component parts. In other tasks, however, Easterners have an advantage. For example, if American and Japanese research participants both look at the same animation of an aquarium, the Americans are more likely to remember details about the individual moving fish, while the Japanese will be more prone to describe other things within the tank: the bubbles, the seaweed, the little plastic castle, the whole thing. The Western eye, apparently, looks for the main characters or the central action, the figure more than the ground, the melody more than the harmony.
And most intriguingly, it seems these differences in ways of seeing objects might be associated with differences in ways of seeing ourselves and others within a moral universe. For example, Waters provides a detailed description of the work of the University of British Columbia Psychologist Joseph Henrich who traveled to various cultures asking participants to play a strategy game similar to the prisoner’s dilemma, in which one member in a pair is given an amount of money and told he must offer an amount to his partner. If his partner accepts, they both keep their share of the money. If the partner refuses, then neither player gets any money. North Americans, Henrich reports, tend to make 50-50 splits and the receiving partner will frequently punish a giving partner who offers an uneven split by making sure that neither gets the money. One might think this response would simply reflect a universal morality: Fair is fair. However, in trying out the test in 14 small scale societies in South America, Africa, and the East, Henrich found very different results. In some societies, for example, the first player would routinely offer only a very small proportion and that amount was rarely refused.
While that specific game doesn’t have much parallel in modern litigation, the research combined with many other cultural difference studies carries important implications for persuasion in an age of diversity. Bottom line: We can’t assume that all cultures see alike, think alike, or reason in a similar moral fashion. This research is still developing, so it is too soon to roll out any fixed template for how one should persuade this culture or that. So instead, I want to focus on this distinction between holistic and analytic thinking — a distinction that exists between cultures, but also no doubt manifests within a given individual from moment to moment.
Holistic and Analytic Thinking in Your Litigation Message:
Pondering the question “How should your persuasion in court adapt to both holistic and analytic reasoning styles,” I came to three general thoughts. While there are certainly exceptions for each of these, I think these distinctions work in a broad sense and help to illustrate the difference between a holistic appeal and an analytic one.
Themes are Holistic, Evidence is Analytic
The proof in your case boils down to evidence capable of being listed, entered individually, and outlined. Your trial theme, on the other hand, should be a holistic view of what your case is about. This is a good illustration of one or the other never being sufficient on its own: You offer, dissect, and debate the evidence piece by piece, and you also offer all of that within the envelope of a single gestalt statement that sums up your case. Some jurors will be drawn to the theme and use that as a filter for viewing the evidence, and other jurors will start with the evidence and hopefully add it up to a conclusion that equates to your theme. But for both kinds of jurors, the holistic and the analytic should be working together.
Visual Persuasion is Holistic, Verbal Persuasion is Analytic
Once you get past the theme, your verbal persuasion by nature is going to focus on analytically separating your elements of proof into a list of reasons. Visual persuasion, on the other hand, offers a complementary way of receiving your case in a glance. When they’re done right, the graphics you use in trial should provide a way of grasping the case that complements, yet differs from the verbal route. Both are necessary, and the best approach is to continuously pair together the visual and the verbal as you present. That way, you are engaging both modes.
Story is Holistic, Legal Elements are Analytic
Litigators need to check off the boxes on each element of the claims they’re trying to prove or refute, and they also need to put all of that in a coherent story for the jury. The elements-based approach embraces the analytic preferences of the law, but the story structure is a recognition of the fact finder’s psychology and need to view these elements in terms of a single unifying thread. By providing both (for example, elements embedded as milestones within a story), you’re appealing to both needs and potentially both kinds of jurors as well.
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Other Posts on Cognitive Style:
- Speak to the Brain’s Politics
- Determine Whether Your Jurors Are Driven by Process or by Verdict
- Think Again: Escape Bad First Impressions By Encouraging Reappraisal
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Waters, E. (2013). We Aren’t the World. Pacific Standard (February, 25). URL: http://www.psmag.com/magazines/pacific-standard-cover-story/joe-henrich-weird-ultimatum-game-shaking-up-psychology-economics-53135/
Photo Credit: Created by the author at his kitchen table.