August 9, 2022

Volume XII, Number 221

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August 08, 2022

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Don't Persuade

Of course I don't mean that literally. Given the title and the content of this blog, it would be pretty ironic if I took a dim view of persuasion. But others -- consumers, jurors, and persuasive targets of all kinds --  do take a dim view of persuasion. They want to feel like they're reaching their own conclusions without the influence or the manipulations of a motivated persuader. So what I mean by "Don't persuade" is don't frame your communication first and foremost as an attempt to influence, and don't make your motives too obvious. The bottom line is that persuasion is best when it minimizes the awareness of "persuasion." That principle has been demonstrated again in a recent study coming out of the University of Amsterdam. The piece entitled "The More You Say, the Less They Hear" (Asbeek Brusse, Fransen & Smit, 2015) focuses on an "entertainment-education" context (think embedded pro-social messages in a television show, like characters using their seatbelts), and examines how disclosure of the persuasive intent of the message influences its effectiveness. The authors found that when the persuasive intent was highlighted to study participants viewing the message, it resulted in more counterargument by listeners and less overall persuasion. 

That result is consistent with a long line of research focusing on what is called "reactance theory" (e.g., see Friestad & Wright, 1994Weinstein, Grubb & Vautier, 1986). The research shows that people are attuned to persuasive intent and are motivated to resist it. How much they resist it can depend on how overt the persuasive intent appears to be. In that context, the less overt a persuasive message is, the more susceptible the audience is to it. So, it is easy to see how that might be true when we're viewing gratuitous shots of passengers buckling their seatbelts in a television drama, but is it true in the courtroom? After all, in that context everyone knows that the advocates, along with most of the witnesses, are there to persuade. There's likely some truth to that, and jurors probably have a little more tolerance for overt persuasion than the average target audience. At the same time, the experience of talking to a large number of real and mock jurors over the years tells me that average citizens strongly value their independence in reaching a conclusion in a case. At the end of the day, they want to believe they reached their own conclusions in their own ways, and did not simply follow the lead of the counsel or the witnesses on either side. In response, good advocates will naturally want to persuade anyway, but should do so in a way that doesn't call too much attention to that intent. In this post, I'll draw out a few implications to this lower key approach.  

So practically, how do you reduce the perception of "persuasion" in order to reduce the level of internal counterarguing that your jurors will engage in? Here are a few ways to keep that purpose less obvious. 

Don't Announce Your Intent

Sure they know you're trying to persuade them. But referencing that fact just makes it more salient, more available as a reminder that they should be on guard. Phrases like "I just want to convince you..." or "I am hoping to persuade you..." just serve to put jurors into a frame of mind where they are induced to be skeptical of what you're about to say next. 

 Tell a Story

The recent research (Asbeek Brusse et al., 2015) focuses on the power of the narrative in reducing the obviousness of persuasive intent and limiting counterargument. Specifically, two benefits of narrative are key: Its tendency to "transport" the receiver into another context, as well as its ability to promote "identification" with characters. The stronger each of those two narrative features are, the less listeners will be tempted to come up with reasons to doubt what you're saying. 

Frame Your Advocacy as Help for Decision Makers

If you're not trying to persuade, then what are you trying to do? You are trying to help jurors with the challenging task of making sense of the case and reaching the right decision. You're helping them to find the best information, evaluate it in the correct fashion, ferret out the consistencies and inconsistencies, and apply the right legal standards. Of course, all of that just happens to lead to your preferred verdict, but from a juror's-eye view, it is most relevant if its main selling point is to help them do their job well. 

Teach, Don't Preach

If what you are giving is the information and the context that helps the  jurors understand, 
then you are a useful and trusted teacher. The benefits of that frame is doubly evident for expert witnesses who have an even greater chance of escaping the frame of being just a persuasive advocate. Experts are able to position themselves, not exactly as neutrals, but at least as individuals who are there to explain facts jurors need to understand in order to reach a fair and informed verdict. Experts, and counsel too, should embrace the teacher's role and take every opportunity to look and sound like a teacher, like using a flip chart. 

So, yes, go ahead and persuade. But do so with the knowledge that the more you remind your audience of that persuasive intent, the more they will resist in order to feel independent, and the more they will come up with counterarguments to oppose you. 

Copyright Holland & Hart LLP 1995-2022.National Law Review, Volume V, Number 236
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About this Author

Ken Broda-Bahm, Ph.D., Holland Hart, Rhetoric lawyer, Legal Persuasion Attorney
Senior Litigation Consultant

Dr. Ken Broda-Bahm has provided research and strategic advice on several hundred cases across the country for the past 16 years, applying a doctorate in communication emphasizing the areas of legal persuasion and rhetoric. As a tenured Associate Professor of Communication Studies, Dr. Broda-Bahm has taught courses including legal communication, argumentation, persuasion, and research methods. He has trained and consulted in 19 countries around the world and is Past President of the American Society of Trial Consultants.

303.295.8294
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