By Dr. Ken Broda Bahm:
The presidential contest is too close to call, but assuming we have a result by the end of the election day tomorrow, one thing is all but certain: Roughly half of the population will be shocked and appalled by the decision made by the only slightly larger other half of the population. Whether Mitt Romney becomes the incumbent president or Barack Obama gains a second term, the nearly half that is on the losing end will see the result as misguided, incomprehensible and dangerous. They will not see it simply as an understandable or rational decision made by those with different information, beliefs or priorities. Instead, the defeated side will see it as a grievous mistake and a ridiculous choice that threatens the country’s future. You’ll be able to feel the breeze from close to one half of the American public shaking their heads in bewilderment.
I might be exaggerating a little, but not much. America’s political attitudes, as many commentators have noted and polling confirms, are more polarized than ever before in modern times. That polarization that some call a new “tribalism” in our political world, is not just a result of a defined set of policy preferences. Instead, it is a clash of increasingly incompatible worldviews, with each side literally not able to understand the other. The empathy that allows one to say, “I see where you’re coming from,” before adding, “but I disagree” is in sharp decline. And recent research backs that up. One study (O’Brien & Ellsworth, 2012) shared and discussed in The Jury Expert demonstrates the empathic tendency to “feel for” another does not extend across the political aisle. Looking at this study and, and inspired at least one more time by the current political campaign, this post looks at what this lack of empathy says to all persuaders, including litigators.
Empathy Across the Aisles: The Research
One very basic way to measure empathy is to start with the human tendency to apply our own visceral states to others: If we are thirsty, we are more sensitive to another’s thirst. Same for heat, cold, and other forms of comfort. But based on O’Brien and Ellsworth’s work, there are some important differences in who benefits from these projections. The pair showed that participants avoid applying their own visceral states to the evaluation of others who are described as hailing from the opposite end of the political spectrum. In two studies focusing on cold and thirst, the University of Michigan researchers found that research participants followed the well-documented pattern of applying their own cold or thirst to the evaluation of others, but not when those others were represented as having opposing political views. That indicates that we’re less likely to extend basic empathy to those who are different, not just in demographic or observable terms, but different in beliefs as well. “All else being equal,” the authors conclude, “knowledge of another person’s politics should not influence how cold or thirsty one thinks he or she is, but it does.”
What does this mean for litigators? For one, it reminds us that jurors are likely to project onto similar others (e.g., “How would I feel,” “What would I have done?“). But those evaluations may not be as simple or as conscious as we expect, because the similarity or dissimilarity between the juror and the person being evaluated matters. While we are used to thinking of similarity in traits that can be observed, like age, race, social status, one of the more salient divides at present might be political orientation: Does a person see himself as liberal or conservative? Beyond that, the findings raise this question: If a lack of political empathy influences the perception of such basic states as cold and thirst, to what extent will it also influence all of the subtle factors that matter to those who study and practice legal persuasion?
Politics shouldn’t matter if a jury is seriously focused on understanding the facts and applying the law. But if jurors, like voters in tomorrow’s election, simply have a harder time understanding, identifying and empathizing with those who carry a different point of view, then it can’t help but matter. Particularly when a case involves issues that are known to split along political lines — personal responsibility, fairness, regulation and the role of government — it should be part of your case analysis and message preparation to take ideology into account.
1. Assess Political Orientation
In recent conversations on current events and the campaign with people I don’t know well, like cab drivers, it has been necessary for me to do a quick estimation of where that person is on the political spectrum before I know quite what to say. To a lesser extent, that same need to assess applies in all communication situations. When persuading jurors in trial, having some reliable cues to their political outlook can be a useful touchstone to the attitudes and specific beliefs that influence their reaction to your case. Of course, you can’t just saunter up to the jury box and ask, “So, how many of you are Democrats.” But if you have a list in advance, you can learn from publicly available social media, and in some venues, you can look up party registration. More indirectly, however, you can often learn a lot by asking in a supplemental juror questionnaire where potential jurors get their news and information. Or, in oral voir dire, you can ask a question that doesn’t directly measure political leaning, but does serve as a reliable stand-in for those views: E.g., “Do you believe we need more regulations or fewer regulations?”
2. Treat Differences as More than Just Disagreement
Lawyers like to trust in the power of evidence, reason and argument to change minds. If a given juror has a worldview emphasizing independent and individual responsibility, it must be possible somehow to show that juror that, in this case, individual responsibility isn’t enough. It is possible, but it isn’t easy. That is because of the way that worldviews work: They are self-protective in the sense that contrary information just leads to inattention, denial, dismissal, or counter-argument. Just as there currently aren’t a whole lot of Romney supporters switching to Obama or vice versa, people only rarely change their basic outlook just owing to new information. For that reason, smart advocates persuade not by altering mindsets, but by convincing audiences that their preferred position aligns in some way with the audience’s mindset. For the civil plaintiff, that might mean convincing the responsibility-oriented juror that he needs to look at the individual accountability of the company’s product testing lab, for example, and not just the responsibility of the consumer.
3. But Be Careful of Similarities as Well
One way litigators might react to this information on polarization and a lack of empathy is to want decision makers who are similar to the party they represent. Defending a doctor? Try to get doctors on the jury. Attacking a company? Try to fill the box with those who have also been harmed by companies. The problem with this line of thinking is that even as differences can lead to a lack of empathy, similarity carries its own problems. For example, if we assume that the research finding of a lack of empathy across the aisles applies not only to the projection of visceral feelings, but also to the projection of traits that bear the closest relationship to issues in litigation, then the likelihood to empathize would also extend to the deeper and more implicit structures that underlie attitudes: intention, agency, responsibility, and credibility. For example, assume that there is either a left-leaning or a right-leaning product user who fails to read a product warning, and is then injured by a dangerous product. It is possible that Republicans would blame Democrats more and vice versa based on stereotypes (e.g., “liberals are careless” or “conservatives are ignorant”), but it is also possible that the form of empathy that gives birth to personal responsibility (the “I wouldn’t have done that” effect) will be less accessible when evaluating a dissimilar other and play less of a role. Depending on the case, there could be an advantage to this lack of empathy if it reduces the tendency for jurors to place themselves, idealistically, in the party’s shoes.
So, much like the pending election results, it isn’t simple.
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Other Posts on Empathy:
- Sympathy for the Devil, but Empathy for Your Judge
- Don’t Mistake Sociability for Empathy
- Make Sure Jurors Understand That You “Get It”
- Cultivate Compassion
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Portions of this post were adopted from my own reactions to the O’Brien and Ellsworth study published in The Jury Expert.
O’Brien E, & Ellsworth PC (2012). More than skin deep: visceral states are not projected onto dissimilar others. Psychological science, 23 (4), 391-6 PMID: 22402799