By Dr. Ken Broda Bahm:
We’ve written frequently on themes: those little nuggets of language and meaning that distill a case to its persuasive essence. As consultants, we create themes even more frequently, trying to find the right message to leverage a case’s greatest strengths while minimizing or reframing its most important weaknesses. By definition, a theme is a simple message that helps an audience see your case in its most favorable terms. But based on some recent research, there is also a mirror image of that: an ‘anti-theme’ in the form of the condensed message that would turn off your audience and turn them away from your case. Considering these anti-themes when working on the contours of your message can help you know what to avoid and what to preempt in your trial strategy.
The study (Gromet, Kunreuther & Larrick, 2013) focuses on consumer choices in lightbulbs and found that buying behavior could be substantially reduced in some audiences just by adding a single, apparently positive message to the packaging. While the question of “What sells an audience?” naturally garners much academic and practical attention, the parallel question of “What kills the sale?” should merit equal attention. And this focus fits well with a goal I’ve written about before: the need to use those forces that attract an audience toward your message (alpha strategies), as well as the need to address the forces that potentially repel an audience from your message (omega strategies). This post applies this approach-avoidance perspective to the question of themes. In addition to looking at the research on the words that can wound your cause, I’ll also share some of my own thoughts on common anti-themes that could play a role in a jury’s or judge’s response to your case.
The Research: When Can Your Message Harm Your Case?
Proving that you can learn about social science in just about any setting, I learned about this research from a recent Colbert Report. The article, appearing in the considerably more credible source — at least from an academic perspective — The Proceedings of the National Academy of Sciences reports on two studies conducted by researchers from the Wharton School of the University of Pennsylvania and Duke University. For the first study, the researchers asked 657 people to reveal their political leanings, as well as their habits and specific responses relating to the purchase of energy-saving products. From that study they found, unsurprisingly perhaps, that those who leaned in a conservative direction were more likely to buy such products if they were advertised as cost-saving investments, while those on the more liberal end of the spectrum were more likely to buy the products when they were advised as solutions to environmental problems.
But the second study is where it gets more interesting. Using an additional 210 participants, they gave each two dollars in order to purchase a lightbulb. They could buy a conventional incandescent bulb for fifty cents, or they could buy a compact fluorescent bulb for a dollar and fifty cents. In each experimental condition, the higher priced bulbs were the same, but the pitch for them changed. In one condition the bulbs were pitched as good for the planet, and in another they were pitched as a money-saver. What the researchers found was that liberal participants were likely to buy the compact fluorescent bulb regardless of which appeal was used, however conservative participants were significantly less likely to buy the bulb when it was paired with an environmental message.
You might think the message that something “protects the environment” is a positive message, or at worst a neutral one, so it might be hard to imagine how that message would reduce the product’s appeal. The reason according to the researchers has to do with how people supply a frame. Based on past experience and the example supplied by other messages, conservatives have come to associate “environmental” terms with liberalism, causing them to shy away from anything connected to those appeals. So rather than just failing to help, the theme makes things worse for that audience, making it an anti-theme.
What Are Some Common Anti-Themes?
The same thing can happen in litigation messages. Juries and other legal audiences are obviously not uniform, and that fact typically leads us to advise clients to target the higher risk audience. That audience can be turned off by some of the very things that work best for your more favorable audiences. Here are a couple of examples:
Plaintiffs Should Avoid These Implied Messages:
“This case is about sympathy…” For many jurors, “sympathy” is a Devil Term representing everything that they presume to be wrong with the American tort system. For many jurors, sympathy is what plaintiffs rely on when the facts, the evidence, and the law don’t support them. To make a decision on sympathy is to set aside reason for emotion, paving the way for the worst kind of abuses in the jury system exemplified by a distorted image of the hot coffee case (Liebeck v. McDonalds Restaurants). If the jury gets the message that the plaintiff — or the defense for that matter — is relying on sympathy, then expect their skepticism to rise by several orders of magnitude.
“We chose this Defendant based on deep pockets…” In addition to assuming that plaintiffs leverage emotion and sympathy, the tougher audience for plaintiffs also tends to assume that lawsuits are motivated by deep pockets. The idea of targeting a company based not on their responsibility for the loss but based on their ability to pay for it, also speaks to those suspecting the worst about America’s legal system. Emphasize too much of the “they’re a big company” message and jurors may start to believe that this fact, and not liability, is why the company is in the case.
Defendants Avoid These Implied Messages:
“We just followed the law…” Of course, defendants need to show adherence to laws, but it shouldn’t stop there. The company that did the minimum or simply toed the line on regulations, especially those designed to protect health and safety, is not fully taking responsibility. Jurors who present a worst case for defendants will often expect parties to do not just what is legal, but what is right. A responsible company would want to do more than adhere to regulations. They would want to fully protect their customers and partners, and that is most credible when it means going above and beyond what the law requires.
“We didn’t act responsibly, but that didn’t cause any harms…” Anytime your case depends on jurors finding liability but cutting the plaintiff short when it comes to causation, you know you have your work cut out for you. Jurors are notoriously prone to jump the gap between liability and damages. In some ways that makes an intuitive kind of sense: “So, you did something wrong, did you? Okay, let’s talk about how much that’s going to cost you.” Some jurors can get to the point of appreciating causation, but it takes an analytical step that is quite often skipped. So in most cases, a party acknowledging liability is sending a message that it deserves at least some punishment.
So How Do You Address Anti-Themes?
Those are just a few examples, and most will be specific to the facts of your case. But once you know what your own anti-themes are likely to be, what do you do about them? Beyond deciding to avoid them, are there steps that would help jurors resist them more effectively if they do emerge? Yes, there are. Once you think it is likely that an anti-theme might be invited in through an adversary’s messages or through jurors’ own preconceptions, you can attempt to inoculate starting in voir dire and continuing through your trial message.
To think about what inoculation against an anti-theme might look like, consider the scenario used in the study. For example, when appealing to the conservative lightbulb buyer, what if a spokesperson led with something like this:
Some people say these bulbs are good for the environment and I don’t know about all that. I just know that over the life of this bulb, there will be a whole lot of money staying in my pocket instead of going to the power company.’
That would be a way of saying, “yes, we know there is a theme out there that might turn you off, but that is not what my appeal is about.” You could take the same approach as a plaintiff trying to avoid the perception of a sympathy appeal:
You know, at the heart of this case, there is a terrible injury, and I know it is only human nature that some will be sympathetic to that, and it is also human nature that some of you will harden yourselves against that not wanting to be moved by sympathy. And that response is fine, because this case is going to be based on clear facts, clear evidence, and clear law…not on sympathy. I’m not asking for that and neither is my client.
A broader point to appreciate in this discussion: Cover the negative and not just the positive. Instead of simply adducing reasons and evidence for the jury to go along with you, you need to think as well about the barriers and reply to the preconceptions, good and bad, that are likely to be on your target audience’s minds.
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Other Posts on Theme:
- Make Your Trial Theme Cinematic…Or At Least Memorable
- Embrace Positive Messaging
- Know Your ‘God Terms’ and Your ‘Devil Terms’
- Right-Size Your Message in Trial
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Gromet, D. M., Kunreuther, H., & Larrick, R. P. (2013). Political ideology affects energy-efficiency attitudes and choices. Proceedings of the National Academy of Sciences.
Image Credit: By the author