By Dr. Ken Broda Bahm:
So you have just started the mock trial and you know this much: Your case doesn’t fare very well at all on first impression. After hearing a summary from you and the other side, your credibility is low, the proportion of those siding with your adversary is high, and you feel about as popular as a skunk at a garden party. Still, as the day wears on, your patience pays off…a little bit. By the time jurors are deliberating, a few brave souls have devoted more thought to the controversy and are gamely trying to defend you to the others. Now the battle among the jurors is akin to a battle between two different styles of thinking. On the one hand, there is the intuitive judgment — quick, visceral, and driven by emotion. On the other hand, there is deliberative judgment — purposeful, analytical, and longer-term.
We see this constantly in the cases we test: The immediate reaction to one party is often quite negative and it takes some time and effort to reframe juror reactions and elicit a more sober evaluation. When there is a conflict between the “snap” of intuitive judgment and the, let’s say, “crackle and pop” of deliberative judgment, the practical question for trial attorneys is how to promote more of the latter in order to overcome a bad taste of the former. We know from experience, and now from a new study as well, that it isn’t a lost cause. Even in the face of a poor first impression on a case, jurors can literally “think again” in order to arrive at a different result. Drawing from this study, our current post takes a look at ways litigators can encourage reappraisal.
The Research: Blink and Then Think
The subjects of impression formation and decision making style are currently in vogue, or at least as close to vogue as cognitive psychology ever gets. With the attention being paid to Malcolm Gladwell’s tribute to intuitionist thinking, Blink, it was inevitable that responses would come, like Michael LeGault’s defense of deliberative judgement, Think, or — striking the balance — Daniel Kahneman’s Thinking Fast and Slow. Importantly, this isn’t just an ivory tower debate. Instead, it has very concrete relevance, particularly on the question of how the working trial lawyer can positively encourage the kinds of careful and measured logical response that the law most often requires.
That is exactly the question addressed in a new study in the journal Psychological Science (Feinberg et al., 2012). Testing what they call a “Dual-Process Model” of moral judgment, the researchers hypothesize that an intuitive emotionally-driven reaction is always a starting point for moral judgment, but isn’t always the ending point. The emotional reaction is either reappraised (leading individuals to a deliberative judgment), or it is not (leaving individuals with their intuitive judgment). The researchers provided subjects with a number of moral judgment scenarios — stories geared to initially lead to disgust, but which can be rationalized after further thought — that had been used in other studies (e.g., those of Jonathan Haidt who I’ve blogged about before). In a series of three experiments, the researchers found the following:
- Those who are habitually more likely to reappraise their emotional reactions are also more likely to override their initial intuitions and arrive at a deliberative result.
- Those who were more likely to reappraise their emotional reaction take longer to reach a decision.
- When participants are directly asked to think again and reappraise their initial emotional reaction, they are more likely to engage in more deliberative reasoning and get past their initial intuitive reaction.
So, the bottom line results provide support for the ideas that 1) there is something to this “dual-process” perspective, and 2) rethinking works. “In this way,” the study concludes, “individuals are both slave and master, with the capacity to be controlled by, but also to shape their emotion-laden judgmental processes.” This has a few implications for the litigator trying to get decision makers to transcend their initial negative evaluation of a case or client.
1. Know When Intuitive Moral Judgment Is Likely to Run Against You
The first step is to look for those factors that are likely to trigger an initial intuitive reaction against you. Those parts of the story can be very individual to the case, but a few of the more common elements include a bad motive (e.g., greed), elements of deception or dishonesty, an apparently inequitable result, or any story that resonates with a current popular stereotype (e.g., a bank taking a reckless action). The presence of factors like these when they cut against, can be a sign that your case has some challenges, but more specifically they create the risk that many jurors will form an initial intuitive judgment that can only be set aside if you induce them to reappraise that reaction. Of course, the best way to know if you are going to face that reaction is to test it. When running a focus group on a case, for example, we will often give mock jurors a very short statement of the case in order to gauge their immediate reaction.
2. Know Which Jurors Are Most Likely to Settle with Intuitive Judgment
What we learn when we measure initial reactions in a focus group exercise is that jurors will typically vary in their initial response, reflecting their own styles of moral judgment. Some hearing of a serious injury following an arguably irresponsible act will essentially say, “that’s enough…the defendant needs to pay,” while others will say, “wait, maybe there is more to this story.” One aspect of what we are measuring is jurors’ preference for heuristics or “low effort thinking” over a more analytical style. Once you discover that the easy route to thinking is a problem for your case, you will want to exercise strikes at least in part based on those who are most likely to engage in that style of judgment. In an earlier post we’ve recommended some questions along those lines.
3. Invite Jurors to Reappraise
Ultimately, the jury selection process can target the worst, but cannot fully blunt the role of intuitive moral judgment. After all, the ability to make quick, evaluative decisions without a lot of thought is only human, and something we rely on countless times just to get though the day. For that reason, the best nugget from this study is the demonstration that when you ask people to reappraise their initial emotional reaction…they actually do!
That process of reappraisal can start in jury selection. Encourage your panelists to acknowledge the bad stuff, and then ask them whether they think that is the end of the story, or whether they would need to learn more. At least one vocal panelist — and more likely a majority — will emphasize the need to get the full picture before making a judgment. That discussion, while not necessarily telling you who to strike, will help your future jurors put a frame around the story: The law is not about snap judgments, it is about considering everything in careful deliberation. That story also gives your supporting jurors a response to your opposing jurors: “Yeah, I understand that is your first reaction…it was mine too… but if you keep looking at the evidence…”
Returning to these themes of looking at the complete picture and questioning your initial emotional reactions, opening statement should play a strong role in telling a story that emphasizes the need for detail, complete information, and deliberation. Finally, closing argument should play the role of demonstrating to the jury the rethinking process itself, as you go through the evidence and the verdict form, raising questions the jury can only answer through a careful deliberative process.
The most important reminder is that while an intuitive emotional response is likely to set the stage, it won’t necessarily write the final chapter. Instead of treating decision makers as one-dimensional slaves to emotional response, advocates need to recognize that they come in all sizes and have the genuine ability, in at least some circumstances, to do what the law is asking them to do: to rise above their passions.
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Other Posts on Moral Reasoning:
- Clothe Responsibility in Action, Not Inaction
- Find the “Universal Morality” in Your Case Story
- You’d Better Be Good (But If Not, Presenting the Naughty With the Nice Makes For a More Credible Trial Story)
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Feinberg M, Willer R, Antonenko O, & John OP (2012). Liberating reason from the passions: overriding intuitionist moral judgments through emotion reappraisal. Psychological science, 23 (7), 788-95 PMID: 22636202
Image Credit: Gilichupak, Flickr Creative Commons (text added)