By Dr. Ken Broda Bahm:
The U.S. Senate has accomplished something at long last: a rules change. U.S. Senate Majority Leader Harry Reid invoked the so-called “nuclear option” of allowing filibusters to be ended with a majority vote. As Minority Leader Mitch McConnell laments the change, some will say the minority had it coming by overplaying its hand in blocking a high volume of President Obama’s judicial nominees, among other things. Others will say that as the parties’ fortunes shift, the now-majority of Democrats in the Senate might come to regret the decision to limit this powerful tool of the minority. The tension will likely continue, and it reflects a larger concern in group dynamics: How does the minority exert influence over a majority? While the parliamentary procedure politics might seem remote from the concerns of those trying to sway jury deliberations, the broader point of small group process matters. After all, jurors don’t simply vote; they argue. And we all learned from 12 Angry Men that one does not need to be in the majority in order to exert influence. Experienced jury watchers will say this real-life Henry Fonda character is rare, but also will say that the numerical minority is rarely passive, often contributing substantively to the final verdict.
Let’s say you’re conducting a mock trial, peering through the one-way mirror or the closed-circuit video, watching the back and forth of the deliberations. One crucial question is, What is the minority doing? How strong is it? What tools is it using? How does the majority answer or incorporate them? Watching this play out in the dispute over the Senate’s “nuclear option,” I am reminded of a line of research in group dynamics called “minority influence.” It refers to a social science perspective on the demonstrated ways a minority is able to exert influence over a majority. One of the most-referenced works (Moscovici, 1980) distills a number of experimental studies down to a list of principles (simply summarized here) that apply well to small group deliberation settings. Drawing from that work, this post takes a look at how you should learn from minority influence in jury deliberations when testing, assessing, and preparing your own case.
Watching the Mock Jurors in the Minority
Superficial attention to the results of a mock trial can sometimes begin and end with the question, “Who won?” But that is neither the only nor the most important result of the research project. Instead of focusing on outcome, consultants, attorneys, and clients watching the mock trial should pay the greatest attention to process: Not the what of the decision, but the how of the deliberation. A big part of that focus on how involves looking at the interactions between those in a majority on a given decision and those in the minority. When just a few jurors, or even just one, is skeptical of your case, it is tempting to dismiss the potential for influence. But those minority jurors’ views hold important clues to challenges that could be greater in an actual jury. In addition, when you have only a few supporters, the ways they argue can help you translate those views into majority views.
What to Watch For
One question we have written about before is the question of what motivates the minority and whether there is a motivational imbalance in the form of a minority that has a more powerful driving interest behind its arguments. In addition, Moscovici’s minority influence literature provides a useful checklist of what to watch for in assessing the potential strength of a minority point of view.
1. Is the Minority Consistent?
Moscovici emphasized that an effective minority needs to be consistent in their opinion. So an adverse theme that emerges only occasionally will be less threatening than a theme that is used to respond to every favorable argument. The consistency of a minority opinion serves notice to the majority that those on the other side are both convinced and committed. That can create the kinds of doubt and uncertainty that splinter a majority, opening up opportunities for a shift of opinion.
2. Is the Minority More than Superficial?
Does the minority give good reasons for their opinions and respond to the reasons offered by others? Or do they just stick with “Well, I just don’t agree”? Passive disagreement is unlikely to influence anyone. A juror who supports the plaintiffs, but only because he doesn’t want them to walk away empty-handed, for example, is a far less serious threat than a juror who engages in argument. Active disagreement can be a force for change even when it is initially in the minority.
3. Is the Minority Flexible?
I understand the apparent contradiction between points one and three on this list. But consistency refers to a juror who is not waffling, while flexibility refers to a juror who is trying strategic alternatives to get to the same goal. If an argument to the majority fails, do they a.) give up, b.) keep repeating the same argument, or c.) try a different argument? Successful minorities will try a different path while still maintaining the same basic direction.
4. Is the Minority Relatable?
One of the more important questions to consider when looking at the minority views in your mock jury is whether the minority is making arguments that are relatable to the majority or not. By ‘relatable,’ I mean this: Does the perspective identify with the majority’s reasoning (‘I see where you are coming from, but…’) or is it oppositional (you’re wrong because a, b, c…)? If there are minority arguments which are capable of bridging the gap to influence the majority (e.g., by referencing common facts or building on common values), then there is a much greater chance for that minority argument to succeed.
Going beyond Moscovici’s list, I’d also add one question relating to how the majority responds to a minority opinion:
5. Does the Majority Out-Reason or Just Out-Vote the Minority?
If the majority simply disables a minority view by outweighing it with the strength of their own opinion, then we don’t know how influential that minority view could be in the context of a different group. This is one of the reasons why, in our mock trials, we will always ask jurors to aim for a unanimous verdict. Whether our venue requires unanimity or not, asking for it in a mock trial, at least initially, forces the group to confront minority opinions and not simply bypass them. A minority view that is outweighed without being effectively answered is a greater danger than one that is met by reasons and evidence.
Going back to the management of minority views in the U.S. Senate, it remains to be seen how Republicans will respond tactically to a reduced ability to hold up nominees. But the rhetorical reactions to majority rule on the issue have so far been dramatic. It is “bullying” (Rand Paul), “tyranny” (Lamar Alexander), “dictatorial” (David Vitter), and a “raw power grab” (Kelly Ayotte). But one Republican Senator Senator sees a positive light: “The silver lining is that there will come a day when the roles are reversed” (Chuck Grassley).
Just like with many Americans right now, jurors can sometimes get tired of the drama. Many would prefer a happy consensus instead of a pitched battle over who is right. But mock trial practictioners and consumers need to remember: The argument is the stuff you are after. So set the conditions in ways that make that more likely. Ensure that presentations are not just acceptable, but great from all parties. Balance the groups so that each of your juries includes a mix of pro-plaintiff and pro-defense jurors. Ask them to aim at a consensus verdict. Then, sit back and carefully watch, not just who wins, but how views become or fail to become majority views.
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Other Posts on Group Dynamics:
- Don’t Discount a Motivated Minority
- No Blank Slate (Part 2): In Closing, Treat Your Jurors as Instrumental Arguers
- Help Jurors Stay Off the Bandwagon
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Moscovici, S. (1980). Toward a theory of conversion behavior. In L.Berkowitz (Ed.), Advances in experimental social psychology (Vol. 13, (pp. 209-239). New York: Academic Press.
Image Credit: Donkey Hotey, Flickr Creative Commons