By Dr. Ken Broda Bahm:
Ladies and gentlemen of the jury, it did not have to end up this way. At many points in time, and at many places along the course of this story, the individual sitting here with opposing counsel could have made a different choice. He could have taken a different path. He had multiple opportunities to have avoided this result. Let’s look at some of these paths not taken…
Envisioning alternatives is an important persuasive tool, because determinations of responsibility often come down to the choices a party made, and whether they were the right choices. From the position of knowing the outcome, obviously we know that what happened is what happened. But if that outcome seems like it was destiny, we can miss the other options. The perception of choice can be narrowed due to a focus on a known result.
It could have gone differently. When you are making an argument for placing some responsibility on the other party — whether that party is a defendant or a plaintiff — it can be essential to consider, to flesh-out, and to enumerate the ways that a negative result could have been avoided or mitigated by their different choices. A focus on “what might have been” can encourage jurors and other fact finders to place greater responsibility on the other party. In this post, I will focus on how and why that works.
Why ‘Paths Not Taken’ Works
Alternatives that could have happened but did not happen are called “counterfactuals.” I’ve written about them a few times before in this blog, because it was one of the areas I liked to research and to write on back in my days as an academic focusing on argumentation. They’re interesting and important because there is a great deal of evidence that we often reason based on counterfactuals. For example, the more we think about alternative courses that an individual could have taken, the more we hold them responsible for the course they did take — the employee who had numerous ways to have reported a problem is more responsible than the emloyee who had few or none. In addition, the more that a better alternative is available and salient, the more tragic a negative event is taken to be — the workplace accident that was almost avoided is more regrettable than the accident that seemed destined to happen from the beginning.
Importantly, these alternatives need to be not just logically present, they need to be salient and sticky — in the academic parlance, the more cognitively “available” the alternative is, the more it is likely to factor into our judgment. So the goal of an advocate trying to place or magnify responsibility should be to increase the availability of these counterfactual alternatives.
How ‘Paths Not Taken’ Works
Multiply the Paths
Don’t content yourself with just one “should have…” option. The greater the options, the less the jurors are likely to see the actual result as predetermined, and the more they are likely to see the party as having greater power and greater opportunity to have avoided it. So spend some time with your team creatively brainstorming those alternate paths. When presenting these paths to the jury, enumerate them to give them even more staying power, i.e., Here are the nine ways she could have avoided this result…
Visualize the Paths
Use a demonstrative exhibit, not just to make the alternatives understandable, but also to make them more concrete and more memorable. Jurors are more likely to talk about the alternatives if they can remember seeing them. So a simple list on a flip-chart can work, but you can also design a graphic that contrasts the path taken (a metaphoric freeway, for example) with all of the alternatives (exits) that the party drove right by.
Bring the Paths Closer
The social science refers to what are called “close counterfactuals” (Kahneman & Varey, 1990) as being especially powerful. When the business traveler makes a last-minute change to a different flight, it is treated as a greater tragedy when the plane crashes. Why? Because it is so easy to imagine the alternative (the close counterfactual) of the traveler simply staying on their previously scheduled flight. So while you might think you are giving your adversary too much credit by saying, “…and he almost did the right thing” the research shows that this actually increases their perceived responsibility for having made the wrong choice.
Ultimately, a legal case is about negotiating responsibility based on choices. To make those choices real, meaningful, and influential to juries, tell them a story about the paths not taken.
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Other Posts on Counterfactual Arguments:
- Account for ‘Close Counterfactuals’ in Your Trial Stories: The Loser that Almost Won
- Experts: Use Counterfactuals
- Make Events Meaningful by Inviting Counterfactuals
Kahneman, D., & Varey, C. A. (1990). Propensities and counterfactuals: The loser that almost won. Journal of Personality and Social Psychology, 59(6), 1101.Ke
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