by: Dr. Ken Broda Bahm
No, I’m not talking about a breach of decorum that could end with a quick trip to jail. I’m talking about strategy. To understand what I mean by a disruptive trial strategy, imagine a typical juror who walks into a courtroom wrapped in attitudes and experiences that she has built up over a lifetime. Where an argument that flies in the face of her beliefs makes it through this perceptual net and makes an impression, it is still all too easy for the juror to discount that argument based on tried-and-true patterns of thinking. Many attorneys have gone head-to-head with this kind of pronounced bias (e.g., trying to prove that civil plaintiffs are not all greedy, or that oil and gas companies can be ethical) and know what I’m talking about. When jurors are just fitting information into their already well-developed worldview, is “persuasion” even possible? One thing we do know is that you don’t persuade in that context simply by putting in your case and giving jurors good reasons. You persuade by somehow disrupting that juror’s existing patterned way of thinking about the issue at hand.
There is a recent line of thinking on persuasion known as ‘Disrupt then Reframe’ (or DTR). Basically, it refers to the belief that persuasion against hardened attitudes requires an initial step of disruption, or a short-circuiting of your listener’s habitual mental response. That disruption can often be accomplished by presenting surprising or even confusing information. For example, one study compared the success rates of a beggar asking for “any change” with one who asked for “17 cents” or “37 cents.” The request for any amount of money led to a 44% percent success rate, while the more specific and surprising request for an odd amount of money increased the success rate to 75%. The theory is that when surprised or confused, the listener is forced out of their patterned or mindless response (in this case, to ignore the panhandler) and is instead led to a fresh consideration of the request.
That kind of information sounds far removed from a courtroom, but there are clear ways that litigators can use a similar approach to being disruptive when dealing with potentially biased jurors. If you are a plaintiff’s counsel, for example, pursuing a medical malpractice case, a juror may think of you as an ambulance-chaser and see your case as just a litigious reaction to a sad medical outcome. She expects you to begin by talking about the patient’s good character and loving family, and she expects you to begin by demonizing the doctor and questioning his every act and judgment. And if that is what you do, then all the juror hears is background noise, and nothing that causes her to rethink her bias. But what if instead you begin by talking about everything that the doctor did well, and every relevant instance in which the doctor followed the right procedure and made the right call? Now, the juror is surprised, and maybe even a little bit confused, because you violated her expectations. Now she is actually listening in a less-filtered way to what you are saying. That presents you with an opportunity to reframe: to tell this juror that this isn’t a case about an ambulance chasing attorney complaining about a simple bad outcome, but is instead a case about one medical error, an error that does not condemn an otherwise hard-working doctor, but does create a need to take responsibility.
This approach is one more example of the basic truth that persuasion in complex situations requires more than simply putting in your case and adding up your reasons. ‘Disrupt then Reframe’ means fitting your best version of your case to the likely biases of your jury.