By Dr. Ken Broda Bahm:
You’re in a grocery store with your cart ready to check out. The entire time you’ve been in the store, you’ve understood that you can buy any kind of product the store sells. And at some point, you probably walked through the candy aisle on your way to pick up something else. But now, as you wait at the register, you’re flanked by candy on both sides. “Why not grab a Snickers,” you think, “you won’t even have to bag it and you can enjoy it on the way home.” The store’s choice in placement is a nudge toward that kind of impulse buy. Richard Thaler of the University of Chicago’s Graduate School of Business and Cass Sunstein of Harvard Law school have written about exactly this kind of subtle but powerful appeal. In Nudge: Improving Decisions about Health, Wealth, and Happiness (2009), they don’t identify candy bars with any of those three, but they do offer an important perspective on persuasion and influence drawn from behavioral economics and psychology.
What makes a “nudge,” in the authors’ view, is that the appeal preserves freedom of choice (you can still walk past that candy), while at the same time structuring the outcome in a very predictable way (but millions won’t). Thaler and Sunstein make the point that the government, advisers, health professionals, public interest groups and others ought to think strategically about the structure of choice and embrace nudges for the greater good. While the idea is not directly applied to the litigation context, I think it fits very well. While reading the book, I started to see the trial setting, and broader settlement context surrounding it, as one that is rife with nudges great and small: a complex situation where many small factors can make a difference, with each side trying repeatedly to nudge the parties or the factfinders in their preferred direction. The information in the book isn’t completely new, with some of the same research covered in other books (Freakenomics, Made to Stick, Blink, Thinking Fast and Slow, etc.). But the book carries its own frame and, to me at least, the frame of the “nudge” is a useful one. In this post, I will discuss some implications for treating persuasion as a nudge, particularly as these implications relate to a litigation context.
The Book: Thaler and Sunstein Nudge Us Toward a New Way of Looking at Influence
Thaler and Sunstein begin with a broad definition, describing a nudge as “any factor that significantly alters the behavior of humans.” Of course, that takes in the full spectrum of persuasion and influence, but the difference in the focus of their book is the strategy of subtly steering choices toward better results while still preserving that choice. Within that setting, the strategic role is played by a “choice architect,” or someone who “has the responsibility for organizing a context in which people make decisions.” The context should be set up such that the persuasive targets are acting in way that reflects their own decisions and perceived best interests, but in a way that’s been thoughtfully engineered by the architect. “Choices,” they write, “are not blocked, fenced off, or significantly burdened.”
Based on the concise rule of thumb that “everything matters,” Thaler and Sunstein cover a number of well-known biases and heuristics like anchoring, availability, and representativeness. Those biases apply in all persuasive situations, but some settings are more prone to need this emphasis on choice and subtle influence. Thaler and Sunstein write, “people will need nudges for decisions that are difficult and rare, for which they do not get prompt feedback, and when they have trouble translating aspects of the situation into terms that they can easily understand.” Thinking of a juror, these terms — difficult, rare, delayed feedback, and challenging translation — all certainly apply.
A Few Implications for Legal Nudgers
Thinking about what the frame of the “nudge” does in a legal context, I see three important reminders.
The Nudge Isn’t Necessarily Noticed
At the end of a trial or during the deliberation phase of a mock trial, the juror is unlikely to say, “That was a great metaphor,” or “I really liked the way the plaintiff downplayed their greatest weakness.” In the background, however, a useful metaphor or a structure that gives greater emphasis to the stronger rather than the weaker points can play a critical role in nudging jurors to see a case in a particular way, which in turn leads them to a verdict. The implication of this is not only that you should multiply your nudges, but also that you should adapt the way you assess and research your case. If you think you have a good case theme, for example, it is tempting to ask in a focus group interview, “So, what did you think of the theme?” Asking in that way, however, is likely to be met with “What theme?” But if you listen to them talk to each other in the deliberation and interview phases of the project, you may hear the theme emerge in their own words, and that is the best sign that it worked.
The Nudge Isn’t a Guarantee
It is in the nature of a nudge that it influences, but does not determine. A nudge increases the likelihood of some behavior, but without necessarily bringing about that result. That is a good reminder for legal persuaders: We structure and frame choices, we do not cause them. Judges, arbitrators, and jurors are supposed to see the facts and follow the law, but ultimately, each is able to accept or to disregard an argument, and likely to assign their own weight to each piece of evidence. The persuasive target is free, and actually acknowledging that (“…but you are free”) can be a persuasive strategy in its own right. In a legal case, the ultimate test is “Did we win?” and we’re tempted to think that a litigation strategy worked if we won, and didn’t work if we lost. But viewing all of these strategies as nudges, it is more nuanced. Instead of asking yourself whether a given tactic will win you the case, ask whether it nudges in the right direction.
The Nudge is Ethical (and Not Just Because It’s Inevitable)
One critique of the nudge perspective, and sometimes of persuasion more generally, is that it is manipulative and therefore unethical. Thaler and Sunstein address this as well by noting that, “The first misconception is that it is possible to avoid influencing people’s choices.” The book,as well as in a more recent paper from Cass Sunstein (2014), makes this point on inevitability, reminding us that “nature itself nudges.” But inevitability, by itself, isn’t a complete ethical excuse. But, particularly in law, strategic influence is not a crime. In an adversary system, both sides are expected to use every permissible influence. But the misperception that there is something wrong with trying to influence the factfinder often finds its way into criticism of the trial consulting field. The book Stack and Sway, for example, errs starting with the title, because effective voir die unstacks rather than stacks the jury, and because sway simply captures the way an adversary system is supposed to work. It isn’t a question of whether there will be nudges or not, it is a question of what those nudges will be and whether they’ll be assessed, understood, and influenced.
That matters because, ultimately, what litigators are nudging toward is not a candy bar in the checkout line, but a more fair and just result in a high stakes situation.
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Other Posts on the Psychology of Influence:
- Beware the Herding Instinct in Opinion Formation
- Persuade With Participation, Part Two: Learn from Modern Cognitive Science
- Know What Motivates
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Sunstein, C. R. (2014). The Ethics of Nudging. Available at SSRN.
Thaler, R. H., & Sunstein, C. R. (2008). Nudge: Improving decisions about health, wealth, and happiness. Yale University Press.
Photo Credit: 123rf.com, used under license.