By Dr. Ken Broda Bahm:
The issue of “fake news” has been in the news — the actual news — a lot lately. The ease and speed of sharing via social networks has made it common for fake stories to be accepted, trusted, and passed around. One story, for example, tells of Trump protestors being paid $3,500 each, and the story even seems to come from ABC News. But a sharp eye reveals that it is a Columbian internet address, a quick search shows that “ABCNews.com.co” is a “satire” site, and the story is 100 percent fake. Still, many took it as true and continue to do so. I know from experience that even after being fact-checked on this kind of fake news, those who share it might set aside the source, but will probably doubledown on what they see as the underlying truth of the story. Pushing fake news is now big business though, and as long as clicks determine advertising rates, it is likely to continue and worsen in the near future.
The well-documented process of motivated reasoning reminds us that when we argue, when we search for information, and when we simply think, we are not neutral or unbiased. Instead, we are often actively working for a particular point of view. Fake news is just one extreme example of this phenomenon. People share fake news because it helps in an argument, because it fits with what they already believe, because they want it to be true. But this is an example of bad persuasion that actually points to a fact about good persuasion: People trust when they can link to what is already known or believed. In litigation, of course, you need your jurors or your judge to believe your — hopefully true — facts, and to do that you might need to overturn a preexisting faith in false facts. Persuading in that context means not just providing evidence and arguments. It means employing a strategy that builds on your target’s existing system of knowledge and beliefs. In this post, I’ll look at two reasons why the new must be linked to the known, and share a handful of quick practical implications for legal persuaders.
The Theory: Two Reasons Why New Information Has to be Linked
The law is something the jury doesn’t know, and the facts are something the jury has not yet heard. But don’t let that trick you into thinking that your persuasive case is something you can make out of whole cloth in the courtroom. Instead, it is something you weave using threads of what you present, and also threads of what you find in the jury box. There are two main reasons why it pays to link new information to what is already known.
Our Cognition Demands It
Our cognition is a system of categories. We understand something by placing it in a box, naming it, and recognizing a similarity based on experience between it and the others in that same box. A recent study (Wu et al., 2016) demonstrated that process at work. As discussed in Psyblog, the research involved participants grouping items into categories on computer screens while researchers measured their efficiency and their brain waves. The result: The more participants were able to recognize and create patterns, the more efficient they became at the task. The lead author, Rachel Wu, explained, “Adults can increase their attention skills by grouping objects into categories, and then using these categories to search for objects more efficiently.” She continued, “You can think about it this way – by knowing the category of food, it makes it much easier to search for something to eat for lunch, rather than searching for the huge number of individual items that you could eat for lunch.” And if we were trying to tempt someone to try a new vegetable, like Kohlrabi, for example, it would help to add, “It is a cruciferous vegetable, like broccoli and cabbage — very healthy.”
Our Stories Demand It
The fact that we make sense of the world through stories also predisposes us toward existing knowledge. The “Narrative Paradigm” for understanding human communication (Fisher, 1984) suggests that when we are confronted with an account that we cannot directly confirm, then we tend to apply two rough tests to determine whether it is plausible. The first test, called “narrative coherence,” looks at whether the story is consistent in all of its internal details — whether it “hangs together.” The second test, called “narrative fidelity,” looks at whether the story matches those stories we already know and take to be true. So, in other words, accounts that are at odds with existing beliefs are already failing one of the two major tests. That doesn’t mean that new information is always doomed to fail, but when it succeeds it is often because there is a different story, or a broader story, where that new information can find a fit.
The Practice: Find Your Link
It is not just a matter of asking, “How do I prove this?” or even “How do I persuade them of this?” but should also be a matter of asking, “How do I connect this” or “How does this fit in with what they already know or believe?” Beyond asking these questions about every key claim in the case, there are a few specific things that litigators can do:
- Wherever possible, build arguments on premises the other side cannot dispute or already concedes.
- Rely on mock trials or community attitude surveys to tell you what attitudes your jury pool is likely to already hold.
- Focus on attitudes in voir dire as much as possible.
- Bootstrap your witnesses, particularly your experts, so that one can reinforce and build upon another.
- Use transitions and previews in testimony so your listeners know how the next information relates to what has come before.
- Focus introductions (in opening, closing, and witness examinations) on what we already know.
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Other Posts on Learning:
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Fisher, W. R. (1984). Narration as a human communication paradigm: The case of public moral argument. Communications Monographs, 51(1), 1-22.
Wu, R., Pruitt, Z., Runkle, M., Scerif, G., & Aslin, R. N. (2016). A neural signature of rapid category-based target selection as a function of intra-item perceptual similarity, despite inter-item dissimilarity. Attention, Perception, & Psychophysics, 78(3), 749-760.
Photo credit: Theilr, Flickr Creative Commons (edited).
https://www.sciencedaily.com/releases/2017/01/170122213557.htm