By: Dr. Ken Broda Bahm –
Those who count on the human ability to prioritize reason and evidence over unshakable conviction — and all participants in the litigation process ought to count themselves in that group — should take note of the persistence of questions over the President’s place of birth, and the sad take-away that proof can be no match for a committed theory. After more than two years of persistent and increasingly mainstream innuendo suggesting he was born abroad, President Obama last week retrieved and released an official copy of a long-form birth certificate, which just confirmed what the short-form version — the one used for all official purposes according to the state’s policies — had indicated all along: Barack Obama was born in Hawaii. That is a simple, documented fact, that has been sufficient for factcheck.org and all but the wildest fringes of the national media. But to a cadre of dedicated doubters, that has disturbingly included nearly a quarter of the U.S. population, the proof wasn’t enough, and we are already seeing fresh attempts to call the legitimacy of the newly released certificate into question. When confronted with evidence that conflicts with a firm belief, they find it easier to doubt the evidence rather than the belief. As George Lakoff wrote, “People think in frames… To be accepted, the truth must fit people’s frames. If the facts do not fit a frame, the frame stays and the facts bounce off.”
The tendency to cling to conspiracy theories and other beliefs long after they’ve been refuted points to an underlying psychological need for cognitive consistency, which is a human tendency to seek out information that jibes with our present beliefs and attitudes, and to ignore or reject what isn’t consistent. Sadly, it isn’t the exclusive province of fringe groups. But happily, research tells us that there is a strategy that helps to convert even hardened conspiracy thinkers.
Any litigator defending a position that conflicts with public perception faces the challenge of trying to overcome the pull of cognitive consistency. Jurors who believe that the average company would lie for financial gain (that is consistently around eight in ten, according to our research) can hear evidence that a company took the honest but less profitable route, and choose to doubt the evidence instead of revising their assumptions about the way the corporate world works.
Thankfully, new research shows that there is a way to address such hardened beliefs through strategic argument. As discussed in a recent Fast Company article, a series of studies carried out by the Yale Cultural Cognition Project is focusing on the techniques that allow die-hard supporters to relax a specific belief. Simply put, the technique is to appeal to consistency by allowing the listener to maintain their overall theories while accommodating the new information. For example, Kahan et al., (2007), found that those denying climate change evidence were able to change their views if the argument was delivered in a pro-industry package (e.g., as a reason for less regulations on the nuclear power industry). By that reasoning, a ‘birther’ might accept the accuracy of the recent birth certificate if it is packaged as part of a larger argument, for example, faulting the President for delaying its release, and framing the controversy an example of the inherent delay and inefficiency of government.
This idea of wrapping your argument around an audience’s existing beliefs hearkens all the way back to Aristotle’s advice to argue in enthymemes, or strategies that employ at least one element of your listeners’ current opinions. For a company defending itself in litigation, that strategy may be effective in changing the views of jurors who might be committed to their own view of a “corporate conspiracy.” An outright “we did the right thing,” message may be discounted by those who have difficulty accommodating an altruistic view of large companies. Instead, the defense message should start with a premise that a skeptical audience is likely to grant, and then work to build from that premise to the right conclusion. For example:
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Companies are motivated by profit.
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In this case, the right thing and the profitable thing are the same (that is, the company needs to meet regulations in order to avoid government restrictions, keep selling the product, and continue to expand and make more money).So,
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So, in this case, the company was motivated to do the right thing.
That isn’t necessarily a silver bullet. Just as arguments that may appeal to an anti-Obama worldview (e.g., emphasizing government delay and incompetence) won’t necessarily lead to immediate acceptance of a newly released birth certificate, even a well-supported litigation response to a corporate conspiracy belief won’t find favor with everyone. But when you take the step of identifying an existing belief that can aid your argument, then you have at least established a beachhead — a moment of attention that might allow your argument to get through.
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Kahan, D.M. et al. (2007). The Second National Risk and Culture Study: Making Sense of—and Making Progress In— the American Culture War of Fact Yale Law School, Public Working Paper, 154
Photo Credits: Dave Center, Flickr Creative Commons