By Dr. Ken Broda Bahm:
Imagine this messaging challenge: Your case isn’t a personal injury case, where there is a discrete moment you’re asking jurors to evaluate. Instead, it is a commercial case, where there is a profusion of details, memos, and meetings, each like individual flakes in a snowstorm. In order to make it not just dramatic but simply intelligible, you need to take one or a few of those specifics and create a meaningful event to serve as the focus of your story.
If legal persuasion was just a matter of giving reasons that convince your decision-maker, it would be enough to know the facts and the law. Instead, you need to make some moments stand out and other moments recede. You need to invest importance in some facts and drain salience from others. Put differently, you need to make meaning. We know that there are many ways of creating importance for facts, including demonstrative exhibits, analogies, themes, and physical delivery. But one surprising way to emphasize meaning comes from research discussed recently by my friends at The Jury Room blog. Apparently, focusing on counterfactuals – sometimes called “if only…” or “but for…” thoughts about what didn’t happen — is a reliable way to increase the perceived importance of an event. Oddly, you can encourage listeners to add more importance to real events by inviting them to imagine unreal events. This post takes a look at the research and provides an example of how the technique can work.
Counter-What?
It isn’t nearly as exotic as the fancy label would imply and it has a very direct and practical relevance to legal messages. As the name suggests, a “counterfactual” is a thought about an event that is known to be false (counter-to-fact) and it often begins with “if only.” If only I’d remained an academic instead of becoming a full time litigation consultant, I’d probably still be publishing on the interesting spots where language, informal logic, and argumentation intersect, like counterfactuals, which have been a personal favorite of mine. As I’ve written before in this blog, counterfactual thoughts play an important, even essential, role in determining causation (e.g., “but for the breach of contract, the Plaintiff wouldn’t have been damaged”), so the counterfactual is not some kind of mental mistake, but is instead a critical step in the legal evaluation that the law is asking for. But we also know that counterfactuals have all kinds of other effects that can end up pushing fact-finders off the rails. Entailing the consideration of a world other than the actual one that we know, counterfactuals directly raise the question of how the imagination intersects with evaluation and judgment.
This is where the study points to an intriguing new strategy. A team of six researchers from four universities (Kray et al., 2010) conducted a series of studies looking at what happens when research participants evaluate events after having been encouraged to create their own counterfactuals by thinking about how the world would have turned out if those events had not happened. Some of those studies focused on feelings of inevitability and fate (an interesting subject in its own right…maybe a future post!). But for this post, I’m most interested in the findings that relate to perceived importance and have implications for the litigator who is trying to make an event stand out in a situation like the one I used to begin this post.
In the first study, the researchers asked participants to write a short essay on their college choice, and then followed up with survey questions on how important that choice was. Before answering those questions, however, half of the participants completed a second essay based on “all the ways that things could have turned out differently.” That simple act of considering the alternatives led to participants being significantly more likely to believe that their college choice has “defined who I am,” “added meaning to my life, and was “one of the most significant choices of my life.” The researchers then repeated the study focusing on a relationship (a best friend) rather than an event, and found the same: When we expressly consider the alternatives of “what didn’t happen,” it makes the reality of what did happen all the more important and meaningful.
Making Meaning in Your Trial Message
This technique has a very important implication for litigators, and it goes beyond the impact of “if only” thinking. This is another example of a key principle: It is better to reason with your persuasive targets than to reason at them. Instead of telling jurors what is important, for example, you should think about how to engage them in a process allowing them to discover what is important on their own. If they’re involved in the process on their own terms, they’re more likely to trust the conclusions they reach.
Here is an example of what I mean using closing arguments in a commercial case.
1. Not So Good: Tell Jurors What Is Important
You are going to be seeing an awful lot of documents in this case, so let me help you out by leading you to the most important document by far: the February 7th memorandum from Bad co. to Good Ltd. This is the memo where Bad co. promises — and let me point out the language, it is right here – promises that it will enter an agreement. Because of that promise, Good Ltd. invested millions and lost millions.
This is clear legal argument, but it positions the audience in the passive role of just listening, understanding, and agreeing. Jurors might go along with the argument, but they might also distrust or resist having the conclusions simply handed to them.
2. Better: Show Jurors What Is Important
Let’s ask ourselves, what would have happened if Good Ltd. had not received that promise from Bad co.? Would they have invested millions? No, they wouldn’t have. Would they have sought out more assurances from Bad co.? Absolutely. Would they have sought out different investors if Bad co. had refused to give those assurances? Without a doubt.
In this example, the advocate is at least laying out the counterfactuals for the jurors, and we know from other research cited in Kray et al., (2010) that this encourages a more analytical mindset. But the advocate is still in the position of answering all the questions for the jury. It takes some discipline, but a better approach is to let jurors feel like they are following their own path.
3. Best: Help Jurors Discover What Is Important
When you go back to deliberate, I’ll wager that you’ll want to look closely at the February 7th memo. And when you do, I think you’ll ask yourself, “does it contain a promise?” “Would a reasonable person, in the context of the whole relationship that came before this memo, take it as a promise?” You’ll want to think about every word – “committed,” “project ready,” “looking forward” – and ask if that points toward a promise, or if it conveys – as Bad co.’s attorney has argued – that “we’re still thinking about it…?” And if Good Ltd. hadn’t received that promise, then what would the world have been like? Would they have accepted one of the many proposals they had in hand from other companies? You’ll have to look at those proposals and see if it is reasonable to believe that instead they would have invested millions in Bad co., even without a promise.
In this example, the advocate is laying out the breadcrumbs pretty explicitly, yet still leaving it to the jurors to follow those crumbs to the right conclusion. That approach can feel like you’re giving up a little control, yet in the long run, it can be more effective because to the jurors, you aren’t telling them what to think (which breeds resistance and counter-argument) but are instead telling them how to think about the case (which is useful in helping the jurors do their job).
The other benefit of this approach is simpler — the more they think about alternatives to this memo, the more important the memo becomes in their mind. This research points to an important and easy way of making some events stand out. Specific events in “the real world” can become a little more real and a little more important once they’re compared to what could have happened but didn’t.
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Other Posts on Counterfactuals and Language:
- Help Your Fact Finders Think About What Might Have Been
- Count Your Plaintiffs Before Certification Hatches: Class Size Matters in Some Unexpected Ways
- Don’t Let Your Judge Reduce You to Absurdity
- Remember That Argument Isn’t The Most Important Part of Closing
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Kray, L. J.; George, L. G.; Liljenquist, K. A.; Galinsky, A. D.; Roese, N. J. (2010). From What Might Have Been to What Must Have Been: Counterfactual Thinking Creates Meaning Journal of Personality and Social Psychology, 98 (1), 106-118