By Dr. Ken Broda Bahm:
“End on a positive note,” the saying goes, and stated that way, it seems almost trite. Those who write books or direct movies, as well as those who try cases and deliver closings, know the power that lies in a great finish. But look into the psychological research and you may be surprised at the extent of influence exercised by the finale. Research shows that the way something ends can be so important as to overwhelm prior evaluations. Study subjects who endure 60 seconds with their hands in ice water report a more negative overall experience than subjects who also endure 60 seconds in ice water, followed by 30 seconds in just slightly warmer water (Kahneman et al., 1993). The later group experiences almost 50 percent more discomfort since the slightly warmer water is still uncomfortably cold but, psychologically, the experience is actually preferred by study participants for a very simple reason: Things got better.
In the literature, it is called the “peak-end rule,” and it means that we evaluate experiences giving undue weight to how they were at their peak and at their end. Much of the research focusing on the “end” part of the rule has so far focused on experiences of pleasure or pain, like the one described above. But it isn’t too great a stretch to expect the principle to apply to persuasion as well. The peak-end rule for a legal persuader would suggest that, instead of presenting arguments and appeals in a declining order of strength with the best ones coming first, the legal persuader should start strong, while also presenting a case that gets better over time. The ideal of leaving the jury or judge with a very strong argument ringing in their ears as they set off to make a decision is well-known, but practical demands can lead litigators into an “and another thing” mode that can make for an end that doesn’t leave the target audience with the best overall impression. This post takes a look at the peak-end research and recommends several contexts where trial lawyers should be applying the peak-end rule. Oh, and then I end the post on a really interesting point.
The Research: How It Ends Matters More Than You Think It Does
So this peak-end rule applies to situations of mild discomfort, like having your hand in cold water, but what about situations involving more significant impacts? One experiment gave very literal meaning to the expression “a pain in the…” well, let’s just say it applied the same approach to a colonoscopy (Redelmeier & Kahneman, 1996). You guessed it: Patients actually preferred the longer colonoscopy, actually rating it as less painful, when the principal and most painful part of the procedure was followed by a less painful but still uncomfortable procedure. More pain was ‘better’ as long as the last part represented an improvement.
In both that study as well as the ice water study, the emphasis was on painful experiences. What about the more positive experience of receiving or perceiving something good? To test whether peak-end results occurred in those settings as well, a group of researchers (Do, Rupert & Wolford, 2008) ran a study that involved participants receiving gifts and rating how happy those gifts made them. They predicted that their participants would be less happy with a highly desirable gift when it was followed by a less desirable gift. The method involved rewarding Dartmouth students on a fundraising project by allowing them to choose a DVD from one or two lists. All those in the experimental groups got to choose first from an “A list” of top rated movies, then half the participants were allowed to choose from a “B list” of less favorable movies. The participants still picked a movie from the “B list,” showing that the gift was desirable, just less desirable than those on the “A list.” The researchers predicted that those with two movies would end up less happy than those with one simply because the end experience of picking the “B list” movie was less desirable. That is indeed what they found: Those who ended their experience by receiving the less desirable gift were less happy overall. “Two positives are given a lower rating than a single positive if the second item is less positive than the first,” the authors observed.
These experiences of pleasure or pain aren’t quite the same as what an audience for persuasion experiences. But it seems reasonably clear that if the peak-end scenario comparable to those described above were to be studied in a persuasive context like legal argument, we could expect that study to show that when one group is given just one good argument, and the second group is given that same good argument plus a second argument that is still persuasive but not as strong a the first argument, the second group — despite receiving more overall support — will be less persuaded than the first group. But if you reverse the order and give that second group the stronger argument second, they will be more persuaded. That is similar to the “but wait, there’s more…” effect of adding more arguments later in the appeal, as long as those arguments are at least as good as, or better than, what they’ve already heard.
Where to Follow the Peak-End Rule in Litigation:
In Oral Voir Dire…
The goal when questioning jurors is, of course, to discover the attitudes and biases that serve as a basis for your cause challenges and strikes. That focus on what is bad for your case can lead you to focus on some unfavorable points of view. And when it’s bad, it’s definitely better to hear it than to not hear it in oral voir dire. But don’t end on that down note. Instead, at the end of each major topic, pivot back toward your supporters who can, as long as they are in a safe and unstrikeable majority, share some themes that are more positive to your case before you move on.
In Opening…
The natural sequence of elements can encourage litigants to cover damages at the very end of opening statement, but that practice can be unfavorable for both sides. For the plaintiff, it can mean you end opening with jurors thinking, “Aha, I knew this was all about money.” And for defendants, spending the final minutes on damages can leave them with the impression that, “They seem to admit wrongdoing, so it must be just a question of how much.” When it is covered in opening, the damages section clearly needs to come after liability and cause, but after covering it, it is best to return to the more positive ground of your strongest themes.
In Witness Order and Examination…
There is a simple and common order to examining your own witnesses: “First, lets cover all the points we need to make, then at the end, we will deal with some of the points opposing counsel will bring up, or has brought up.” And when you have a critical knockout punch against opposing counsel’s point, that approach can make for a strong ending. But in other cases, the strongest points will be on your own ground, and you will be relatively weaker when responding to the other side. In those cases, it makes sense to apply a sandwich approach: your ground, their ground, then your ground again. Don’t end in a defensive pose: Even if the defense is good, if it is less good than what came before, the overall perception could be negative.
In Closing…
Closings are an obvious application of the peak-end rule: The simple advice would be, end as strongly as you can. Prepare your closing at least as carefully as you prepared opening, and end with some of your strongest points. We’ve written before about one technique I especially like: ending with your “untouchables,” or those points that your opponent has not and cannot deny. In addition, closing can present a greater risk of ending on damages, since that is likely where the verdict form ends. Providing a compelling case on damages is important, of course, but the monetary dimension will probably not be the highest motivator for jurors. So, as you did in opening, end by returning to your strongest points and by reminding jurors of where the broader concept of justice lies in this case.
Conclusion: The Most Interesting Finding Ever!
Okay, this particular blog topic sets a very high bar for the conclusion, so this had better be good. While it may not live up to my subheading, I do want to share one of the most interesting, or at least seasonally appropriate, manifestations of the peak-end rule covered in a recent NPR piece by their great social science correspondent, Shankar Vedantam. On a Halloween night, the same researchers who conducted the DVD experiment (Do, Rupert & Wolford, 2008), also played a trick on trick-or-treat. As the costumed little ones came to their door they gave them either a full-sized candy bar (full-sized, not “fun” sized), or the same full-sized candy bar plus a small piece of chewing gum. Then they had the trick-or-treater quickly point to one of a series of smiley faces to indicate how happy they were with the treat. Here again the peak-end rule determined the outcome, and those who received the additional piece of candy were less happy than those who just received the candy bar.
“So if we have a great experience that starts to go downhill,” Vendantam notes, “we rate the overall experience as being less good.” So it is not just that a good ending helps. The lesson is that anything other than a good ending can overwhelm our recalled assessment of what came before. As we move swiftly from Halloween into the Christmas season, the 2008 study authors have some advice on your gift-giving: “If you were planning to give multiple gifts for a future holiday, you might consider giving only the best one — or at least making sure that you give the best one last.”
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Other Posts on Structure:
- Avoid the “And Another Thing…” Style in Rebuttal
- When You Think “Story” Think “Structure”
- But Wait, There’s More: Build Your Case Over Time, Instead of All at Once
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Do, A. M., Rupert, A. V., & Wolford, G. (2008). Evaluations of pleasurable experiences: The peak-end rule. Psychonomic bulletin & review, 15(1), 96-98.
Kahneman, D., Fredrickson, B. L., Schreiber, C. A., & Redelmeier, D. A. (1993). When more pain is preferred to less: Adding a better end. Psychological Science, 4(6), 401-405.
Redelmeier, D. A., & Kahneman, D. (1996). Patients’ memories of painful medical treatments: real-time and retrospective evaluations of two minimally invasive procedures. Pain, 66(1), 3-8.
Photo Credit: theilr, Flickr Creative Commons (detail)