By Dr. Ken Broda Bahm –
The Plaintiff’s opening statement in the medical malpractice trial began predictably: This is a case about “incompetence,” and “arrogance,” and “dangerous decisions,” jurors heard. But rather than fostering even an initial leaning against the doctor, this message brought about a defensive response. Jurors were left feeling that all their stereotypes about medical lawsuits and plaintiff attorneys were confirmed, and as they listened, they generated responses, reasoning that “doctors are only human,” “medicine is still an art, not a science,” and “even the best efforts don’t guarantee good outcomes.”
What led to the defensive response to the Plaintiff’s opening? The answer can be found in a self-protective tendency. A deep-seated desire to justify the trust we place in doctors provided a powerful motive for jurors to reason in ways that countered the Plaintiff’s case. We like to see jurors as neutral evaluators who listen, weigh, and decide the case — as the metaphoric blank slate we write our arguments upon, or the empty vessel into which we pour our evidence. Experienced litigators know this isn’t true, and research is increasingly showing us the degree to which it isn’t true. The concept of “motivated reasoning” is one example.
“My Juror, Myself”
When it comes to reasoning style at least, it may be that jurors don’t differ from advocates so much after all. After an exhaustive review of the public’s process of moral reasoning, University of Virginia researcher Jon Haidt (2001) concludes, “The reasoning process is more like a lawyer defending a client than a judge or scientist seeking truth.” In other words, we are motivated to reason in the directions we want to support.
The idea of “motivated reasoning” (Kunda, 1990), as profiled brilliantly in a recent Mother Jones article, suggests that our feelings about ideas and people are tightly bound with our ability to understand, remember, and generate thoughts and arguments about them. In other words, we reason emotionally, and we are much better at coming up with arguments for a position that we want to favor. That doesn’t discount the role of logic. Jurors still reason, evaluate evidence, and think critically about instructions, but all of that tends to happen after an initial leaning has been formed, and all of those processes are biased toward supporting that disposition rather than refuting it. Judgment tends to precede reason, and rationalization can be the default logical mode, as shown in a long line of studies.
Recently, for example, a group of researchers (Bastardi, Uhlmann & Ross, 2011) looked at the way future parents reacted to scientific articles that confirmed or conflicted with their plans to care for their children either at home or through daycare. While all participants initially believed that home care was the better option, the participants who nonetheless expected to use daycare found an article supporting that option to be much more persuasive than did those parents who were already committed to home care. For those parents who would be depending on paid care outside the home, a pro-daycare article supported what they wanted to be true (even more than it supported what they initially believed to be true), and was therefore credible and useful new information.
How Should Your Opening Statement Adopt to Motivated Reasoning?
In your first words to a jury or judge, and through the rest of your case, it is critical to approach your audience with sensitivity to the fact that they are not simply receiving and evaluating your claims and evidence, but are instead responding to complex motivations of their own. The specific approach will depend on your case, but there are three general notions to keep in mind.
1. Speak Not Just to the Critical Reaction, But to the Defensive Response. In preparing opening, lawyers ask, “Before I say it, can I support it with evidence?” and “How will the other side respond?” An equally important question is, “How will jurors feel about it?” If it threatens existing beliefs, even a rock solid case will just inspire counter argument. In the medical malpractice case discussed above, a hard-hitting plaintiffs’ opening just inspired jurors to defend the doctors they had to trust. In different cases, jurors are motivated in other ways: by their commitment to the way contracts work (in commercial litigation), their belief that innovation should be rewarded (in intellectual property cases), or their trust in their own safety (in consumer products liability cases). If the acceptance of your version of the story would be threatening to jurors’ belief systems in any way, then jurors will be motivated toward counter-argument and disbelief.
2. Consider the Most Favorable Frame for Your Case. As I’ve written before in these pages, the frame matters: “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” (Lakoff, 2004). Motivated reasoning explains why the ill-fitting facts bounce off. University of Michigan political scientist, Arthur Lupia, describes motivated reasoning as a “basic human survival skill.” As Chris Mooney writes in Mother Jones, it is a skill we developed to preserve cognitive consistency: “we push threatening information away; we pull friendly information close. We apply fight-or-flight reflexes not only to predators, but to data itself.” In the medical example, the default frame is probably of a frivolous suit, driven by greed. A plaintiff would need to change that frame in order to have any chance. As powerful as existing attitudes are, it is a mistake to see them as immutable. Instead, it is more accurate to say that for any person, there are multiple frames available, some are simply more accessible than others. If it isn’t a frivolous suit, then perhaps it is a human mistake, the kind that happen from time to time to any professional, and it isn’t a matter of placing blame as much as it’s a matter of simply asking for accountability. As David Ball and Don Keenan have explored in the Reptile texts, the imperative in dealing with an audience motivated in all the wrong directions is to take on a negative frame and turn it to your advantage through creative and credible reframing.
3. In Every Case, Ask What Motivates Your Decision Maker? The most important take away is that attorneys should not just ask, “What reasons will convince my jury?” but “What motivations will my jury respond to?” The jury is not simply doing its civic duty, following instructions, or altruistically helping your client. Instead, your fact finders are justifying the hard mental work of attending to your case and ultimately reaching a verdict in the name of some implicit or explicit value. More concrete than “justice,” it could be “the value of keeping one’s word,” or “the importance of honesty in corporate communications,” or “the safety of the consuming public.” If you don’t fill in the value, and make it central and tangible for your jury, then they’ll fill in a motivation of their own, and it may be a lot less favorable than what you had in mind.
Adapting to motivated reasoning can mean re-thinking the way you reason with decision makers: It isn’t a matter of just giving reasons, but of fitting reasons to motivations. Chris Mooney’s conclusion to the Mother Jones piece perfectly fits opening statements: “You don’t lead with the facts in order to convince. You lead with the values — so as to give the facts a fighting chance.”
______
Other Post in This Series:
- No Blank Slate (Part 2): In Closing, Treat Your Jurors as Instrumental Arguers
- No Blank Slate (Part 3): With Judges, Arbitrators, and Mediators, Don’t Assume
Related Posts:
- Persuade Using Both Alpha and Omega Strategies
- With Eggs and Arguments, Keep the Sunny Side Up, But Cook Both Sides
- For Opening Statement (or Any Other Presentation), Keep Your Speaking Notes Off the Screen
______
Bastardi A, Uhlmann EL, & Ross L (2011). Wishful thinking: belief, desire, and the motivated evaluation of scientific evidence. Psychological science, 22(6), 731-2 PMID: 21515736
Haidt, J. (2001). The emotional dog and its rational tail: A social intuitionist approach to moral judgment. Psychological Review, 108(4), 814-834 DOI: 10.1037/0033-295X.108.4.814
Kunda, Z. (1990). The case for motivated reasoning. Psychological Bulletin, 108(3), 480-498 DOI: 10.1037/0033-2909.108.3.480
Photo Credit: Flickr Creative Commons, Karen Horton