By Dr. Ken Broda Bahm:
Legal persuaders know how to make an argument and how to sell a point. But what do you do when the other side gets there first? That is, what is the right response if, by the time you have the chance to offer your reasons, they’ve already mentioned the point, told the judge or jury what you’ll be saying, and what’s wrong with it as well? Rather than delivering your persuasive coup de grace, you risk being a Johnny-come-lately to an already poisoned well. What the other side has done is called “inoculation” (McGuire, 1961) in the academic fields of attitude change. It means preemptively calling out the argument you expect from your adversary and offering some information to help the target audience resist that message more effectively when they hear it later on; it works the same way the weakened form of a virus delivered in a flu shot helps you build up resistance to the actual illness.
Of course, the response to the inoculator is to show your judge or jury that what they’ve already heard is wrong or incomplete, and therefore the inoculation shouldn’t take. But don’t just treat it as business as usual, because the research shows that inoculation tends to be a very effective strategy. In a recent post on “9 ways the Mind Resists Persuasion (and How to Overcome or Sustain Them),” Psyblog writes that you should ask yourself, “what counter-argument will people already know?” and then “avoid the ‘usual’ arguments in your persuasion attempt. Instead use a new angle they haven’t thought about before.” This post takes a look at the research on inoculation and a few ways to counter the effectiveness of this well-known persuasive strategy in a legal context.
Inoculation Works
A recent meta-analysis (Banas & Rains, 2010) looked at 54 studies representing several decades of research on the usefulness of inoculating as a persuasive strategy. Based on data from more than 10,000 research participants, the authors conclude that inoculation works exactly as expected: Those exposed to a version of an argument beforehand are more likely to resist the full-strength message when they hear it later. While the effect-sizes tend to be relatively modest (perhaps because people tend to be pretty good at resisting messages to begin with), the difference is significant and meaningful — inoculation confers an advantage to the inoculator.
But what about the other side (who I’ll not be calling a virus)? All parties need to account for inoculation, but particularly defendants who open, present evidence, and close only after the plaintiffs have had their chance. One implication is to take it seriously. Don’t simply make the argument as you would have made it if the other side hadn’t attempted to inoculate. Instead, address it specifically and directly. Adopting a nautical theme, I believe there are four general messages to use as countermoves when the other side has managed to get to your point before you have:
One, They Missed the Boat
In an ideal scenario, you can simply avoid the argumentative ground that’s already been trod upon by coming up with something new, something the other side didn’t expect. That is more easily said than done, however, since discovery has made it quite likely that a plaintiff will have a good idea of what you plan to say and plenty of opportunity to address it beforehand. Still, in those instances where you can make a different response, doing so accomplishes two things: one, it gives you a fresh canvas to paint upon, and two, it also tells your judge or jury that they can’t fully trust the representations made by the other side.
Two, They Only See Half the Boat
Presuming your adversary did hit the mark, it is likely that they didn’t cover it completely. Remember, one aspect of the medical analogy for inoculation is that the target is being given a weakened form of the virus, not the full-strength malady, since the goal is to build-up resistance to the flu, not give people the flu. That tendency to provide a partial version extends to the persuasive use of inoculation as well. Adversaries speaking first won’t share the full extent of the argument you plan to make, they’ll just give listeners a taste: a strawman that is just big enough to knock down. The opportunity here is to let those listeners know, “You haven’t heard the full story.” Again, in addition to buying yourself some ground, you are also giving your listeners a reason to doubt the other side.
Three, They See a Rowboat and Not a Steamer
Another way the parties on the other side might present a weakened version of your argument is to downplay the strength of the position. Even if they haven’t left out any discrete information, they still probably gave the argument less emphasis and weight than you’ll likely give it. The answer in that situation is to reframe the response so the judge or jury is able to see your argument as better and more important than the other side made it out to be. And in a way, the fact that the other side has taken the time to address your argument in advance helps you emphasize its importance. It allows you say say, “They’re concerned about this…and they should be.”
Four, They’re Still Sunk
Ultimately, the goal is found in the judo principle of using your opponent’s force against them. Even when they’ve fairly and fully gotten there first and answered what you’re intending to say, your job is to counter that inoculation by convincing the juror or the judge that you are still right and they are wrong. But to do that, you need to tell them something new. Because of the advance warning, your argument itself is no longer new, but the second level of the argument — your answer to their answer — is still new. So the other side’s preemption just means that the argument is no longer at the ground floor, but has now moved to a second level. After providing a reminder on the basics, you can drive home the point that, even as they’ve successfully anticipated your argument, they still haven’t beaten it.
The challenge in this situation and many others is to maintain the offense and not be reduced to just answering and not advancing the argument. Inoculating a jury or judge on the other side’s most important arguments is a powerful strategy, and whenever a party has an opportunity to cut in on the other side, they should. But once they do, it creates some responsibilities for the other side. When they’ve tried to inoculate the target audience against you, rise to the challenge in a way that respects and acknowledges what your fact finders have heard, reorients it in a more favorable direction and moves your argument forward.
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Other Posts on Resisting Persuasion:
- Persuade Using Both Alpha and Omega Strategies
- Help Jurors Stay Off the Bandwagon
- Remember That Argument Isn’t The Most Important Part of Closing
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Banas, J. A., & Rains, S. A. (2010). A meta-analysis of research on inoculation theory. Communication Monographs, 77(3), 281-311.
Image Credit: Ano Lobb, Flickr Creative Commons