By Dr. Ken Broda Bahm:
The results of the 2014 mid-term elections are in and, for the most part, the American electorate has confirmed expectations, ushering in a swing toward the right. Before that, 2012 saw a swing to the left, and 2010 saw a swing to the right, and 2008 saw a swing to the left. The pattern is that the party generally perceived as being in power absorbs the bulk of the public’s fears and dissatisfactions, motivating a shift toward the other side. This year, the pendulum of politics continues to keep time. The reliability of these swings reminds me of the shifts in opinion that we see over the course of a mock trial: The plaintiff presents and a majority favors that side. Then the defense presents and a majority favors that side. Adding in the different phases of opening statements, witness testimony and closings, that back-and-forth swing can be repeated over and over again before the mock jurors reach the deliberation stage.
The pendulum swings we see in both voters and jurors provide an important reminder for the practical persuader inside or outside of litigation. The reminder is that attitudes are dynamic, not static. Previous messages and judgments set a context for the messages and judgments to follow. But as we receive more information, or as we simply have a chance to process and ruminate, we will change our minds. That might sound obvious, but it can be under-appreciated when we reduce decision makers to the fixed categories of “for us” or “against us.” Acknowledging a state of persuasive flux has some important implications for the ways we think of our targets in persuasion, as well as the ways we set and measure our own goals and objectives. This post starts with the idea that attitudes change, and draws out a few implications you may not have considered for both trial and pretrial research settings like focus groups and mock trials.
In Trial….
The physical presence of the jury is a good antidote to any tendency to reify these decision makers as having fixed understandings and views. You can’t read their minds, but you can generally tell that they’re actively taking it all in and working with the information they’re given. When you’re sharing a courtroom with a jury over the course of a trial, it is easy to understand, “Okay, I need to keep working to convince these people.” At the same time, though, I can think of a couple of additional recommendations for avoiding attitudes and practices that get in the way of the need to continually refresh your message.
Don’t Act Like You Have a Blank Slate
Sometimes you see it in a defendant’s preparation for their opening statement: They’ll act as though the jury will be starting with a blank slate. They won’t be. When the plaintiff’s attorney has sat down after opening, the jurors are likely focused on the terrible, dangerous, and dishonest actions of the defendant. So the defendant who begins with something like, “Let me tell you about jury duty, the legal process, what an opening statement is for, and then the history of my client…” is truly missing the boat. Playing the ball where it lies, what the defense attorney needs to give the jury right away is a reason to strongly doubt at least some of what they’ve just been told, as well as a reason to take a fresh look at the defendant’s credibility. Plaintiffs also need to remember that, even in opening, they don’t have a blank slate either. Instead, they have a canvas that already has quite a lot of paint in the form of attitudes toward frivolous suits, lawsuit abuse, and ridiculous damages. So don’t start with a message that requires a neutral starting point. Instead, start with a message that accounts for and changes those preexisting attitudes in the context of your case.
Work to Regain Credibility Every Time
Beyond just opening statement, remember that every part of a trial – every day, each phase of every witness, along with closings — can be seen as a battle with someone winning and someone losing. In that context, trial lawyers do well to always presume that the opposing side gained some yards when they were last at the lectern. This applies when, for example, you are trying to pick up your own witness on redirect. Instead of just focusing in a workmanlike fashion on covering the issues brought up on cross, focus first on the witness’s credibility and any repair that might be necessary. If there is one area where opposing counsel was particularly off the mark, or a topic where the jury could feel misled, begin with that.
In Pretrial Research…
Focus group and mock trial settings provide particularly valuable opportunities to measure and address attitudes in a dynamic fashion. Comprehension, attitudes, and reactions to specific facts will emerge, change, and then settle on a particular point. Here are a couple of ideas for adapting the research setting to that change.
Meaningfully Track Shifts in Opinion
Don’t treat the research as an opportunity to just say, “Here’s the case, now what do you think?” Instead, seize as many opportunities as possible to measure opinions as the information comes in. While I am skeptical of the claims of some that meaningful attitude shifts can be measured moment-to-moment (e.g., through the use of dial testing or other continuous response measures), I do think that between each message jurors hear, their attitudes should be measured. That way, you know how their opinions change in response to new information. The focus group design in particular is useful in allowing this focus. A facilitated discussion after each side or each issue is covered provides a running sense of how your target audience understands and processes the message. Another important consideration, not only for focus groups and mock trials but for surveys as well, is that the timing for the research matters. If you conduct the research on a different week, your results could vary just based on the public mood and current events. Ideally, you want to conduct your research at a time that is as close to trial or other decision points as possible, while still allowing you the time to process and use what you’ve learned.
Pay Special Attention to the ‘Shifters’ and Their Reasons
Each side has its hard-core supporters. In any project, some will be persistently plaintiff and some will be die-hard defense. Those aren’t the people who matter most to your strategy. To return to the example of politics, we know that not all or even a majority of voters determine the pendulum swing from one election to the next. Instead, those results are determined by that minority of swing voters who shift in response to current events. Electoral strategists rightly focus on those voters. Legal persuaders should do the same when it comes to jurors. Done right, voir dire should have the effect of increasing this proportion: By eliminating the True Believers on either side, you should be left with a pool of mostly swing voters. Your mock trial project gives you a fantastic opportunity to understand those people. When looking at case leanings and credibility measures from time to time, ask yourself, “Who has changed their opinion from one side to the other since the last presentation?” By looking at these ‘Shifters,’ along with their reasons for changing, you are gaining direct and valuable knowledge on the themes, arguments, and evidence that work.
Thinking back on this week’s election results, it is interesting that the public is aware of the pendulum of politics as well. Democrats, for example, are able to console themselves in the belief that, “Well, this all just means Hillary in 2016.” Whether that ends up being the case or not, it remains the case that beliefs and attitudes present a constantly changing picture.
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Other Posts on Legal Lessons from Politics:
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