By Dr. Ken Broda Bahm:
Last week in the U.S. Senate, a measure to require universal background checks on gun purchases failed to get the 60 votes needed to survive. The arguments supporting the common good of keeping firearms out of the wrong hands were, to 45 Senators, was not as strong as the individual rights based aversion to new restrictions in any form. Though this decision was out of step with prevailing public opinion (with 86 percent of the public supporting such checks), it was quite consistent with a very common and very American tendency for common good arguments to crumble in the face of individual good appeals. So this abstraction of “The Common Good” that might seem like an important touchstone for persuaders in all contexts, turns out to be an argument that you can’t quite count on. According to one recent study (Hamedani, Markus & Fu, 2013), common good arguments aren’t simply suboptimal, they actually serve to demotivate the audience.
Here in the U.S., we tend to like our independence a lot more than we like our interdependence. This tendency to put the individual ahead of the commons exerts a strong influence in determining which persuasive appeals will work. Attorneys working to motivate a judge, jury, or arbitrator are interested not just in reasons in the abstract, but in appeals that an audience will find tangible, meaningful, and personal. Based on the recent study, the appeal to the common might be just too common to work as that kind of a motivator. Instead, what works is to communicate and frame arguments in personal terms. Even while avoiding overt special pleading (this verdict affects you) or Golden Rule objections (what would you have done?), it is true that legal audiences will favor appeals that can be grasped in individual terms. This post takes a look at the research showing the weakness in “The Common Good” and shares some ways of converting these arguments into more individually relevant appeals.
Research: The Failure of “Common Good” Appeals
Three Stanford Researchers (Hamedani, Markus & Fu, 2013) conducted a series of studies looking at the effect of offering either independent (individual liberty) or interdependent (common good) appeals. They asked groups of European Americans and bicultural Asian Americans to perform challenging mental and physical tasks after being primed with either an appeal for independent action or an appeal for interdependent action. Two experiments showed that the interdependent prime (a ‘common good’ appeal) served to demotivate European Americans but not Asian Americans. Applying this to a policy realm, they conducted a third study in which an appeal for environmental sustainability was framed in terms of either independent or interdependent action. Again they found that for European Americans, the interdependent appeal led to decreased motivation and resource allocation, while there was no such effect on Asian Americans.
In addition to showing the degree of cultural differences in persuasive audiences that we’ve discussed before, the study also points to an important strategic consideration in how one appeals to the dominant American culture. As NPR science correspondent Shankar Vedantam summarized this study in a recent piece, “When people are asked to think about the greater good, it actually undermines their performance on a variety of mental and physical tasks that people actually work harder, try harder when they’re asked to think about themselves as being trailblazing individuals.”
Individualize Your Appeal
That suggests that when communicating with European Americans, you need to argue as though you are speaking to trailblazing individuals as well. That research, as well as the discussion on NPR, got me thinking about a few ways litigators can individualize their approach to account for these tendencies. These practice implications don’t necessarily stem directly from the research, but are consistent with the spirit of favoring persuasive approaches that are individual rather than common. So here are three small or not so small things you can do.
Talk to Jurors, Not to “The Jury“
Whenever you get to directly speak to jurors (openings, closings, or from the witness box), make sure you are speaking to individual jurors and not just speaking towards an amorphous group called “the jury.” That means looking toward and making direct eye contact with individual jurors. I always tell witnesses, “Don’t just let your eyes swim across the panel. Instead, like a bumble bee moving from flower to flower, alight your eyes on one juror, give a sentence or two, then move to another juror and do the same, trying to give equal attention to each member of the jury.” I know the bumble bee part is a little cheesy, but it works.
Use Individual Rather Than Collective Terms of Address
Think of that somewhat old-fashioned phrase that has begun many an opening statement: “Ladies and gentlemen of the jury…” What does that form of address do? It forms the group into a category or a unified and abstract audience instead of discrete individuals, a “jury” instead of a set of “jurors.” It is better to adapt your terms of reference and act as though you are speaking to one individual. Don’t talk about “all of you,” or “those of you on the jury,” when a simple “you” would work.
Focus on Particularized Rather than Generalized Experience, Risk, and Benefit
Finally, when it comes to framing your arguments, think of what that argument would mean in individual terms. In an employment case, for example you could point to the fact that “Performance Improvement Plans are probably well-known in most workplaces,” or you could say, “You have probably been in a work situation and seen a Performance Improvement Plan in action.” In a medical products defense you could say something like, “Society depends on innovation in medicine,” or you could say that, “Each of us benefits, either personally or through someone we love, from medical innovations.” In each case asking, “How would this argument sound if it were applied to the individual rather than the collective?” helps to make your argument more concrete and stronger.
In the continuing legislative campaign to find measures to reduce gun violence, for example, proponents are increasingly searching for ways to individualize the appeals in order to counter the already individualized appeals on the gun rights side. Instead of arguing statistics and broad statements about safety, we are hearing from particular victims, especially those victims seen as similar to the broadest cross section of the American public: the Newtown families. The role of these and other victims puts a human face on tragedy and turns the argument for a collective benefit into an individually accessible appeal.
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Other Posts on Motivation:
- Scare With Care
- Don’t Discount a Motivated Minority
- Aim Your Oral Argument at Your Judge’s Motivating Principle
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Hamedani MG, Markus HR, & Fu AS (2013). In the land of the free, interdependent action undermines motivation. Psychological science, 24 (2), 189-96 PMID: 23302297
Image Credit: Used under license www.123rf.com.